IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2008
No. 07-50827 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CYNTHIA C. HAZLEWOOD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Defendant-Appellant Cythnia C. Hazlewood appeals her conviction for
assault. She argues that the magistrate judge who presided over her case lacked
jurisdiction because the bill of information charged an offense under 18 U.S.C.
§ 111 that could have been either a misdemeanor or a felony offense. We
disagree, and accordingly AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 2005, Hazlewood and her husband traveled together to the
Eisenhower Bank located at Fort Sam Houston, which is within the territorial
jurisdiction of the United States. Hazlewood sought police assistance upon
entering the bank, claiming that her husband had been driving recklessly and
No. 07-50827
that he had locked her inside the vehicle. Officer Kelly Mann, a federal police
officer at Fort Sam Houston, responded to the call. Hazlewood approached
Mann upon his arrival in the bank lobby and began complaining about her
husband’s behavior and using profanity. Mann directed Hazlewood to go outside
and retrieve her identification. Subsequently, Sergeant Gary Moore, Mann’s
supervisor, arrived and the two officers conferred inside the bank. A few
minutes later, the officers exited the bank and Mann approached Hazlewood,
who was now seated in her pickup truck. Hazlewood aggressively recounted her
experiences with her husband to Mann, and at one point she stood up and
started flailing her arms. Mann instructed her to calm down or else she would
be arrested. Hazlewood’s aggressive behavior continued, and Mann proceeded
to inform her that she was under arrest. Hazlewood resisted and Mann needed
the assistance of Moore in order to subdue her and place her in the patrol car.
During the arrest, Hazlewood injured Officer Mann’s thumb by scratching and
bending it.
The bill of information charged Hazlewood with two counts. The first
count stated that she “. . . did forcibly resist and assault Kelly J. Mann . . . in
violation of Title 18, United States Code, Section 111.” The second count
charged her with disorderly conduct in violation of 18 U.S.C. § 13. With
Hazlewood’s consent, a jury trial was held on March 20, 2006 before a United
States magistrate judge. The magistrate judge treated count one of the
information as a charge of simple assault. The jury convicted Hazlewood on both
counts. The magistrate judge then sentenced Hazlewood to one year of probation
for the assault conviction, with the first four months to be served in home
confinement. For the disorderly conduct conviction, she was ordered to pay a
fine of $250.
Hazlewood then appealed to the district court, where that court reversed
her disorderly conduct conviction but affirmed her assault conviction, holding
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that the crime charged in count one was a misdemeanor over which the
magistrate judge properly exercised jurisdiction. She timely filed her notice of
appeal before this Court.
DISCUSSION
We review de novo the legal question of subject matter jurisdiction.
Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 402 (5th Cir. 2000). Federal
courts are courts of limited jurisdiction “hav[ing] only the authority endowed by
the Constitution and that conferred by Congress.” Save the Bay, Inc. v. U.S.
Army, 639 F.2d 1100, 1102 (5th Cir. 1981). In the Federal Magistrates Act, 28
U.S.C. § 636, Congress conferred jurisdiction to federal magistrate-judge courts
to try and sentence a person accused of and convicted of a misdemeanor
committed within that judicial district when the defendant expressly consents
and when specially designated to exercise such jurisdiction by the district court.
18 U.S.C. § 3401(a)-(b); 28 U.S.C. § 636(a)(3), (5). A misdemeanor is any offense
for which the maximum term of imprisonment authorized is one year or less. 18
U.S.C. § 3559(a)(6)-(8). There is no provision giving a magistrate judge
jurisdiction to try a person accused of a felony offense. See Gomez v. United
States, 490 U.S. 858, 872 (1989). Further, it is well established in this circuit
that parties cannot confer jurisdiction on a court by agreement. Howery v.
Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (“It is true that subject-matter
jurisdiction cannot be created by waiver or consent.”).
On appeal, Hazlewood argues that the magistrate judge did not have
jurisdiction over count one, the assault charge. In support of her contention, she
highlights that count one alleges forcible resistance and assault, and does not
include the words “simple assault.” Since, according to Hazlewood, the
information does not, on its face, allege a misdemeanor charge, the magistrate
judge lacked jurisdiction and her conviction must be vacated. We disagree.
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Hazlewood was charged under 18 U.S.C. § 111, which provides, in relevant
part:
§ 111. Assaulting, resisting, or impeding certain officers or
employees
(a) In general. Whoever –
(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this
title 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 where
such acts involve physical contact with the victim of that
assault or the intent to commit another felony, 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.
“While the language of the statute seems to suggest that there are three
different punishments for one crime, this circuit has interpreted 18 U.S.C. § 111
to create three separate offenses: ‘(1) simple assault; (2) more serious assaults
but not involving a dangerous weapon; and (3) assault with a dangerous
weapon.’” United States v. Ramirez, 233 F.3d 318, 321 (5th Cir. 2000), overruled
on other grounds by, United States v. Longoria, 298 F.3d 367, 372 & n.6 (5th Cir.
2002) (citing United States v. Nuñez, 180 F.3d 227, 233 (5th Cir. 1999)); see also
United States v. Williams, No, 07-30179, 2008 WL 615503 at *4 (5th Cir. March
7, 2008).
In Ramirez, this Court provided definitions for the three forms of assault
under § 111. 233 F.3d at 321 (citing United States v. Chestaro, 197 F.3d 600, 606
(2d Cir. 1999)). First, simple assault was given its common law meaning, and
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No. 07-50827
therefore defined as “‘an attempted battery’ or the ‘placing of another in
reasonable apprehension of a battery.’” Ramirez, 233 F.3d at 321-22; see also
United States v. Vallery, 437 F.3d 626, 631 (7th Cir. 2006) (explaining that
simple assault is “a crime 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.” (internal quotation marks
and citations omitted)). The second category, more serious assaults not
involving a dangerous weapon, include those assaults which do involve physical
contact but do not result in bodily injury or involve a deadly weapon. Ramirez,
233 F.3d at 322. Finally, the third type of § 111 assault includes those that
involve either the use of a deadly weapon or the infliction of bodily injury. Id.
at 321; 18 U.S.C. § 111(b). The latter two offenses are felonies, as the statute
stipulates that their maximum penalties exceed one year of imprisonment.
Having examined Hazlewood’s bill of information, we conclude that count
one alleges simple assault. The count states that Hazlewood “forcibly resist[ed]
and assault[ed]” Mann; nowhere does it allege or describe any physical contact.
Since § 111 provides that a person convicted of simple assault faces the
maximum penalty of a fine and/or imprisonment not more than one year, count
one is a misdemeanor charge over which the magistrate judge properly exercised
jurisdiction. As the district court recognized, the use of the word “forcibly” in
Hazlewood’s information does not connote that physical contact occurred during
the alleged assault; the term “forcibly” modifies all of the acts rendered unlawful
by § 111(a)(1). See United States v. Arrington, 309 F.3d 40, 44 (D.C. Cir. 2002)
(“a defendant does not violate [§ 111(a)] unless he forcibly assaults or forcibly
resists or forcibly opposes . . .” (emphasis in original)); see also United States v.
Schrader, 10 F.3d 1345, 1348 (8th Cir. 1993) (“Force is a necessary element of
any § 111 violation.”).
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If we accepted Hazlewood’s argument we would effectively be adopting a
per se rule that would require the inclusion of the phrase “simple assault” in
charging instruments in order for counts to be classified as misdemeanor
assaults under § 111(a). We decline to do so; instead we join the Seventh and
Tenth Circuits, which have both recently held that indictments only charge
misdemeanor assaults under § 111(a) when they do not describe any physical
contact. Vallery, 437 F.3d at 633-34 (explaining that because the indictment did
not allege physical contact the defendant could only be charged with simple
assault); United States v. Hathaway, 318 F.3d 1001, 1010 (10th Cir. 2003)
(observing that because the indictment failed to allege any physical contact, the
defendant was not put “on fair notice that he needed to defend against [a] felony
charge.”).
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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