FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-10081
v.
D.C. No.
CR-06-00748-SMM
RAFAEL RIVERA-ALONZO, a.k.a.
Rafael Alonzo-Rivera, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
February 9, 2009—San Francisco, California
Filed October 26, 2009
Before: John T. Noonan, Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
14349
14352 UNITED STATES v. RIVERA-ALONZO
COUNSEL
Alex D. Gonzalez, Gonzalez & Smith, PC, Chandler, Arizona,
for the defendant-appellant, Rafael Rivera-Alonzo.
Karla H. Delord, Assistant United States Attorney for the Dis-
trict of Arizona, Phoenix, Arizona, for the appellee, United
States of America.
OPINION
N.R. SMITH, Circuit Judge:
A district court does not abuse its discretion in refusing to
give an instruction on the lesser included offense, where, as
here, a rational jury could not have convicted the defendant
of the lesser-included offense without finding the element that
would convert the lesser offense into the greater offense.
Also, given the record in this case, the district court did not
commit clear error in finding on sentencing that the defen-
dant’s conduct was motivated by the victim’s official status.
Accordingly, we affirm.
BACKGROUND AND FACTS
Border Patrol Agent Alex Mendoza encountered Rafael
Rivera-Alonzo (“Rivera”) and his cousin (Luis Valdez-
Cordero) after they illegally entered the United States near
San Luis, Arizona on July 15, 2006. When Agent Mendoza
approached the men, he was wearing his Border Patrol uni-
form and was driving in a marked Border Patrol vehicle.
When Rivera and Valdez-Cordero began running, Agent
UNITED STATES v. RIVERA-ALONZO 14353
Mendoza (driving his vehicle) pursued them. As Agent Men-
doza drew near, he ordered the men (in both English and
Spanish) to stop, but both men kept running.1
According to Agent Mendoza, he made two attempts to
physically stop Rivera. On the first attempt, the agent drove
ahead of Rivera but stumbled while getting out of his truck,
allowing Rivera to run past him. On the second attempt, as
Agent Mendoza approached, Rivera dove at the agent’s legs.
A physical struggle ensued. During the struggle, Agent
Mendoza initially subdued Rivera by drawing his gun and
ordering him to the ground. But when the agent holstered his
gun, Rivera began fighting with the agent and eventually took
the agent’s gun from him, attempting to pull the slide to
chamber a round. As Rivera and Agent Mendoza struggled for
control of the gun, a second agent (Jose Oceguera) arrived
and helped to subdue Rivera. Agent Oceguera testified that,
as he approached Agent Mendoza, Agent Mendoza yelled that
Rivera had his gun. Agent Oceguera also testified that he saw
Rivera throw a gun to the side.
Rivera admits that he ran from Agent Mendoza in an
attempt to keep from being arrested for illegally reentering the
United States. However, he asserts that Agent Mendoza tack-
led him and began hitting him with the butt of the agent’s gun.
He claims that he grabbed Agent Mendoza’s wrist only in an
attempt to stop the agent from hitting him. He also claims that
he never struck the agent or took the agent’s gun (although he
stated that the gun fell out of the agent’s hand when Rivera
grabbed the agent’s wrist).
Valdez-Cordero stated that he observed the struggle
between Rivera and Agent Mendoza and that Agent Mendoza
was hitting his cousin with what appeared to be a gun.
1
The record indicates that Rivera looked at Agent Mendoza but kept
running.
14354 UNITED STATES v. RIVERA-ALONZO
Valdez-Cordero also stated that, after the incident, Rivera had
a bump on his head.
Rivera was indicted by a federal grand jury on one count
of felony Assault on a Federal Officer, in violation of 18
U.S.C. § 111(a)-(b). After a two-day jury trial, Rivera was
convicted as charged and sentenced to 120 months’ imprison-
ment. The final jury instructions included instructions on (1)
felony assault on a federal officer using a deadly weapon; (2)
the offense of felony assault on a federal officer involving
physical contact with the victim; and (3) self-defense. Rive-
ra’s request for a jury instruction on the lesser-included, mis-
demeanor offense of simple assault was denied. This appeal
followed.
Rivera appeals his conviction for assaulting a federal offi-
cer with a dangerous weapon, in violation of 18 U.S.C.
§ 111(a) & (b), on the basis that the district court failed to
instruct the jury on the lesser included offense of simple
assault. Rivera also challenges his 120 month sentence, argu-
ing that the district court erred in enhancing the sentence for
conduct motivated by the official status of the victim, under
U.S.S.G. § 3A1.2.
STANDARD OF REVIEW
When reviewing the district court’s denial of jury instruc-
tion on a lesser-included offense, we employ a two-part analy-
sis. United States v. Hernandez, 476 F.3d 791, 797 (9th Cir.
2007). First, we review de novo whether the “offense on
which instruction is sought is a lesser-included offense of that
charged.” Id. (citing United States v. Fejes, 232 F.3d 696, 703
(9th Cir. 2000); United States v. Arnt, 474 F.3d 1159, 1163
(9th Cir. 2007)). Second, if the requested instruction pertains
to a lesser-included offense, we review the denial of the
instruction for abuse of discretion. Id. at 798.
UNITED STATES v. RIVERA-ALONZO 14355
DISCUSSION
I. The District Court Did Not Abuse its Discretion in
Refusing to Instruct the Jury on Simple Assault.
Rivera primarily contends that the district court erred in
denying his request for an instruction on simple assault, argu-
ing that simple assault is a lesser-included offense of felony
assault on a federal officer under 18 U.S.C. § 111. We agree
that simple assault is a lesser-included offense of the offenses
for which Rivera was charged, but we conclude that the dis-
trict court did not abuse its discretion in refusing to give the
instruction in this case.
[1] An instruction on a lesser-included offense is warranted
if “1) the elements of the lesser offense are a subset of the ele-
ments of the charged offense, and 2) the evidence would per-
mit a jury rationally to find [Rivera] guilty of the lesser
offense and acquit [him] of the greater.” Arnt, 474 F.3d at
1163 (internal citations and quotation marks omitted) (quoting
Schmuck v. United States, 489 U.S. 705, 716 (1989); Keeble
v. United States, 412 U.S. 205, 208 (1973)). Thus, a district
court does not abuse its discretion in refusing to give a lesser-
included offense instruction if the jury could not have con-
victed the defendant of the lesser-included offense without
finding the element(s) that would convert the lesser offense to
the greater. See United States v. Torres-Flores, 502 F.3d 885,
888 (9th Cir. 2007).
A. Simple Assault is a Lesser-Included Offense of 18
U.S.C. § 111.
We agree that simple assault is a lesser-included offense of
felony assault on a federal officer under 18 U.S.C. § 111. At
the time of Rivera’s offense, § 111 provided, in relevant part:
(a) . . . Whoever . . . forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with [a
14356 UNITED STATES v. RIVERA-ALONZO
federal officer] while engaged in or on account of
the performance of official duties . . . shall, where
the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned
not more than one year, or both, and in all other
cases, be fined under this title or imprisoned not
more than 8 years, or both.
(b) Enhanced penalty.—Whoever, in the commission
of any acts described in subsection (a), uses a deadly
or dangerous weapon (including a weapon intended
to cause death or danger but that fails to do so by
reason of a defective component) or inflicts bodily
injury, shall be fined under this title or imprisoned
not more than 20 years, or both.
18 U.S.C. § 111 (effective through January 6, 2008).
We previously held that § 111 defines three separate
offenses: “(1) assaults that do not involve physical contact
(punishable up to one year), (2) assaults that do involve physi-
cal contact[2] (punishable up to eight years), and (3) assaults
that involve a deadly or dangerous weapon or bodily injury
(punishable by up to twenty years).” United States v.
Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008) (applying 18
U.S.C. § 111 (effective through Jan. 6, 2008)).
[2] The lesser offense at issue in this case is the misdemea-
2
Prior to the Court Security Improvement Act of 2007, effective January
7, 2008, § 111 described the 8-year felony as applying in “all other cases”
not constituting simple assault, which were construed to mean assault
involving physical contact. See Chapman, 528 F.3d at 1219. Congress
amended § 111(a) to clarify that the 8-year felony applied “if the assault
involved physical contact with the victim of that assault . . . .” See Pub.
L. No. 110-177, § 208(b), 121 Stat. 2534, 2538 (2008). The district court
properly applied the prior version of § 111(a) in effect at the time of Rive-
ra’s arrest, although the result would be the same under either version of
the statute.
UNITED STATES v. RIVERA-ALONZO 14357
nor violation of § 111(a), which applies only in cases “where
the acts in violation of [§ 111(a) ] constitute . . . simple
assault.” Chapman, 528 F.3d at 1222 (alterations in original).
Because the statute does not define the term, “simple assault,”
the term is given its common-law meaning. See United States
v. Turley, 352 U.S. 407, 411 (1957) (“[W]here a federal crim-
inal statute uses a common-law term of established meaning
without otherwise defining it, the general practice is to give
that term its common-law meaning.”). Under the common
law, “[s]imple assault ‘is committed by either a willful
attempt to inflict injury upon the person of another, or by a
threat to inflict injury upon the person of another which, when
coupled with an apparent present ability, causes a reasonable
apprehension of immediate bodily harm.’ ” United States v.
Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir. 1980) (citations
omitted), abrogated on other grounds by Schmuck v. United
States, 489 U.S. 705 (1989). See also Chapman, 528 F.3d at
1219-20. The misdemeanor “simple assault” offense at issue
here contains all of the elements of the distinct felony assault
offenses under § 111, minus the “physical contact” element of
the 8-year felony, and minus the “use[ ] of a deadly or danger-
ous weapon . . . or . . . bodily injury” element of the 20-year
enhanced felony. See 18 U.S.C. § 111; Chapman, 528 F.3d at
1219. Therefore, simple assault is a lesser-included offense of
both the 8-year and the 20-year felonies described in § 111.
B. Rivera Was Not Entitled to an Instruction on
Simple Assault.
[3] Although we conclude that simple assault is a lesser-
included offense of felony assault on an officer under § 111,
we do not agree that Rivera was entitled to the lesser-included
offense instruction under the circumstances of this case. “[T]o
warrant a lesser[-]included offense instruction the evidence at
trial must be such that a jury could rationally find the defen-
dant guilty of the lesser offense, yet acquit him of the great-
er.” Hernandez, 476 F.3d at 798 (internal quotation marks
omitted) (citing Schmuck v. United States, 489 U.S. 705, 716
14358 UNITED STATES v. RIVERA-ALONZO
n.8 (1989); Keeble v. United States, 412 U.S. 205, 208 (1973)).3
“[A] district court may not weigh the evidence in determining
whether to give a lesser included offense instruction.” Her-
nandez, 476 F.3d at 800 (citing Keeble, 412 U.S. at 208).
However, a district court may properly refuse to give an
instruction on a lesser included offense if the jury could not
have convicted a defendant of the lesser-included offense
without finding the element(s) that would convert the lesser
offense to the greater. See Torres-Flores, 502 F.3d at 888.
Such is the case here.
[4] In this circuit, we adhere to the common law under-
standing of simple assault as “assault that [does] not involve
physical contact.” Chapman, 528 F.3d at 1219 (citing United
States v. Chestaro, 197 F.3d 600, 605-06 (2d Cir. 1999)). See
also United States v. McCulligan, 256 F.3d 97, 104 (3d Cir.
2001) (“[P]roof of actual contact is required to sustain a con-
viction for any crime beyond simple assault.”). Therefore, “an
assault, coupled with the presence of physical contact or a
similar aggravating factor, such as the intent to commit mur-
der or a serious felony, is not simple.” Chapman, 528 F.3d at
1219 (citing United States v. Hathaway, 318 F.3d 1001, 1009
3
The right to an instruction on a lesser-included offense derives from
the common law and the Federal Rules of Criminal Procedure. Keeble,
412 U.S. at 208; Fed. R. Crim. P. 31(c). There is a constitutional due pro-
cess right to a lesser-included instruction in capital cases when the facts
would allow the jury to impose a life sentence rather than death. See Beck
v. Alabama, 447 U.S. 625, 627 (1980). In the context of a habeas corpus
review of a state court conviction, we have stated that there is no clearly
established federal constitutional right to lesser included instructions in
non-capital cases. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000)
(per curiam). On direct review, we have not resolved whether there is a
Constitutional right to a lesser-included instruction in noncapital cases.
See United States v. Torres-Flores, 502 F.3d 885, 888 n.3 (9th Cir. 2007).
We need not resolve that issue here, because we conclude that “the evi-
dence at trial [was not] such that a jury could rationally find the defendant
guilty of the lesser offense, yet acquit him of the greater.” Hernandez, 476
F.3d at 798 (citation omitted).
UNITED STATES v. RIVERA-ALONZO 14359
(10th Cir. 2003); United States v. Yates, 304 F.3d 818, 823
(8th Cir. 2002)).
In United States v. Torres-Flores, we upheld the district
court’s refusal to give an instruction on the lesser-included,
misdemeanor offense under 8 U.S.C. § 1324(a)(2). See
Torres-Flores, 502 F.3d at 887. There, the statute of convic-
tion converted a misdemeanor immigration offense to a felony
upon a finding of specific intent “to violate immigration
laws.” Id. at 888 (internal citation omitted). The defendant
argued that he was entitled to an instruction on the lesser-
included offense. Id. To determine whether the district court
abused its discretion in refusing the lesser-included instruc-
tion, we asked whether the jury could have convicted the
defendant of the misdemeanor without also finding that his
conduct encompassed the element (specific intent) that would
convert the crime into a felony. Id. at 888. Based on the
record in that case, we concluded that a rational jury could not
have found that the defendant lacked the requisite intent while
also convicting him of the misdemeanor offense. Id. at 889.
Therefore, we concluded that the district court did not abuse
its discretion in denying the lesser-included-offense instruc-
tion. Id.
[5] Here, there was undisputed evidence of physical contact
during Rivera’s altercation with Agent Mendoza. Rivera
admitted that he physically fought with the agent and grabbed
the agent’s wrist in a struggle over the gun. Given the record,
a jury could not have convicted Rivera of simple assault with-
out also finding that there was “physical contact.” Physical
contact is the element that converts the lesser misdemeanor to
the greater 8-year felony assault involving physical contact
with the victim. Nor, given this record, could a jury have
found the firearm enhancement without also finding physical
contact.
[6] Rivera contends that any physical contact involved in
his struggle with Agent Mendoza is negated because it was in
14360 UNITED STATES v. RIVERA-ALONZO
self-defense to excessive force. Therefore, Rivera argues, the
contact or gun use was not the type contemplated by the 8-
year felony, and the lesser-included offense instruction was
warranted. We disagree. To convict Rivera of simple assault
while acquitting him of the 8-year felony, the jury would have
been required to find that there was no physical contact with
the victim. Because there was incontrovertible evidence of
physical contact, the jury could not have discounted that con-
tact unless the jury believed Rivera acted only in self-defense.
Yet, if the jury found self-defense, Rivera would have been
acquitted of all charges, and the jury could not have convicted
him of simple assault. Therefore, we conclude that the district
court did not abuse its discretion in refusing to give an
instruction on simple assault.4
4
This case does not present the same issues we confronted in Arnt.
There we reviewed the denial of a lesser-included-offense instruction on
involuntary manslaughter in a murder case where there was some evidence
that the killing was accidental. Arnt, 474 F.3d at 1165. We held that the
lesser-included-offense instruction was required, because “[t]he jury might
have been unwilling to acquit [the] killer of all crimes and, even if the
jurors believed the evidence pointing to accidental death, without an invol-
untary manslaughter instruction, they might have convicted of voluntary
manslaughter as a compromise between convicting of murder and acquit-
ting entirely.” Id. (citing Keeble, 412 U.S. at 212-13 (“Where one of the
elements of the offense charged remains in doubt, but the defendant is
plainly guilty of some offense, the jury is likely to resolve its doubts in
favor of conviction.”)).
Unlike Arnt, the present case does not involve a killing. Therefore, the
constitutional concerns arising from a capital case are not present in this
case. See Beck, 447 U.S. at 627 (stating that there is a constitutional due
process right to a lesser-included instruction in capital cases when the
facts would allow the jury to impose a life sentence rather than death).
Further, the jury in this case was not forced to choose between convicting
Rivera of one offense supported by the record and acquitting him of every-
thing. The district court instructed the jury on felony assault on a federal
officer using a deadly weapon and felony assault of a federal officer
involving physical contact, which carried a significantly less severe sen-
tence. Thus, the jury was not precluded from reaching a compromise ver-
dict supported by the record by the lack of instruction on a still less serious
offense not supported by the record.
UNITED STATES v. RIVERA-ALONZO 14361
II. The District Court Did Not Clearly Err in Finding
that Defendant’s Conduct was Motivated by the
Victim’s Official Status.
In sentencing Rivera, the district court applied the “Official
Victim” enhancement under U.S.S.G. § 3A1.2, finding that
Rivera knew that Agent Mendoza was a federal officer and
that Rivera’s assaultive conduct was motivated by Agent
Mendoza’s official status. Rivera argues that the district court
erred in imposing this enhancement, because (he claims) his
conduct was not motivated by the fact that the victim was a
federal agent, but rather by his desire to evade arrest. We
review de novo the district court’s interpretation and applica-
tion of the Federal Sentencing Guidelines. United States v.
Jeter, 236 F.3d 1032, 1034 (9th Cir. 2001). We review the
district court’s factual findings in support of a sentencing
enhancement for clear error. See United States v. Ferryman,
444 F.3d 1183, 1185 (9th Cir. 2006); United States v.
Veerapol, 312 F.3d 1128, 1131-32 (9th Cir. 2002). Given the
record, we conclude that the district court’s finding that Rive-
ra’s conduct was motivated by Agent Mendoza’s official sta-
tus is not clear error. Therefore, the district court did not err
in imposing the “Official Victim” enhancement.
The relevant guideline provides:
(Apply the greatest):
(a) If (1) the victim was (A) a government officer or
employee; (B) a former government officer or
employee; or (C) a member of the immediate family
of a person described in subdivision (A) or (B); and
(2) the offense of conviction was motivated
by such status, increase by 3 levels.
(b) If subsection (a)(1) and (2) apply, and the appli-
cable Chapter Two guideline is from Chapter Two,
14362 UNITED STATES v. RIVERA-ALONZO
Part A (Offenses Against the Person), increase by 6
levels.
(c) If, in a manner creating a substantial risk of seri-
ous bodily injury, the defendant or a person for
whose conduct the defendant is otherwise
accountable—
(1) knowing or having reasonable cause to
believe that a person was a law enforce-
ment officer, assaulted such officer during
the course of the offense or immediate
flight therefrom; or
(2) knowing or having reasonable cause to
believe that a person was a prison official,
assaulted such official while the defendant
(or a person for whose conduct the defen-
dant is otherwise accountable) was in the
custody or control of a prison or other cor-
rectional facility,
increase by 6 levels.
U.S.S.G. § 3A1.2.
[7] The “Official Victim” enhancement does not require
that a defendant harbor any particular ill-will towards federal
agents. It is enough that a defendant knows that the victim is
a federal officer and then assaults the officer in an attempt to
get away or evade capture. See, e.g., United States v.
Hernandez-Sandoval, 211 F.3d 1115, 1117-18 (9th Cir.
2000); United States v. Alexander, 48 F.3d 1477, 1493 (9th
Cir. 1995)). The key factors are knowledge of the victim’s
official status and assaultive conduct motivated by that
knowledge.
In Hernandez-Sandoval, we upheld an “Official Victim”
enhancement under U.S.S.G. § 3A1.2(b) where the defendant
UNITED STATES v. RIVERA-ALONZO 14363
rammed two police officers in their cars while attempting to
evade arrest. Hernandez-Sandoval, 211 F.3d at 1116-17. In
Alexander, we also affirmed a sentence that included an “Of-
ficial Victim” enhancement where the defendant shot at police
officers and nearly ran over a motorcycle officer during his
attempted getaway. Alexander, 48 F.3d at 1493.
Likewise, in United States v. Sanchez, we upheld the dis-
trict court’s “Official Victim” enhancement where the defen-
dant drove at a Border Patrol agent, rammed his vehicle, and
hit the agent in the chest. 914 F.2d 1355, 1362-63 (9th Cir.
1990). There, the enhancement was based on the district
court’s finding that (1) the defendant knew that the victim was
a Border Patrol agent and (2) that the assault was motivated
by that knowledge. Sanchez, 914 F.2d at 1363.
[8] In this case, Rivera objected to the “Official Victim”
enhancement under U.S.S.G. § 3A1.2. In the hearing that fol-
lowed, the district court took evidence and heard argument on
the objection. Our review of the record shows the following
evidence considered by the district court: (1) Rivera testified
that he knew he was coming to the United States illegally; (2)
Rivera testified that he knew he would go to jail and be
deported if caught; (3) Rivera testified that he did not want to
get caught by Border Patrol; (4) Agent Mendoza was wearing
his Border Patrol uniform and driving a marked Border Patrol
vehicle; (5) Rivera testified that he ran faster when he saw the
Border Patrol vehicle; (6) when Agent Mendoza told Rivera
to stop, Rivera looked at him but kept running; (7) when
Agent Mendoza approached Rivera, Rivera dove at Agent
Mendoza’s legs, causing both men to fall to the ground; and
(8) Rivera struggled with Agent Mendoza, grabbed his gun,
and attempted to use it by pulling the slide back. Ultimately,
the district court found that Rivera knew that Agent Mendoza
was a Border Patrol agent engaged in his duties and that Rive-
ra’s conduct was motivated by that fact. Given the record,
these findings are not clearly erroneous and the district court
did not err in applying the “Official Victim” enhancement.
14364 UNITED STATES v. RIVERA-ALONZO
CONCLUSION
The district court did not abuse its discretion in refusing to
give a lesser-included instruction on simple assault, because
the jury could not have convicted Rivera of simple assault
without finding unjustified physical contact, which would
convert the lesser offense into the greater. See Torres-Flores,
502 F.3d at 888. The district court also did not commit clear
error in finding that Rivera’s conduct was motivated by the
victim’s official status.
AFFIRMED.