[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12011 ELEVENTH CIRCUIT
APRIL 11, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 8:10-cr-00010-VMC-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON CAINION,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(April 11, 2012)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM.
Aaron Cainion appeals his convictions and sentences for drug and firearm-
related offenses. After a thorough review of the record, we affirm.
Cainion was charged with (1) possession with the intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1); (2) possession of a
firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c) (Count 2); and (3) possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g), (Count 3). During jury selection, Cainion
objected to three potential jurors. First, Cainion moved to strike juror Linda
Richards for cause after Richards stated that she thought it would be hard for her
to sit through a trial if the defendant did not testify. Second, Cainion moved to
strike juror Patrick Ricketts for cause after Ricketts stated that he assumed the
defendant had done something wrong and was guilty until proven innocent. After
the court denied the motions to strike, Cainion used his peremptory strikes to
remove Richards and Ricketts. The third juror, Joe Forker, worked as a laboratory
technician and had testified in other cases about drug-screening results. Cainion’s
motion to strike Forker was denied, and Cainion had no more peremptory
challenges. Forker was placed on the jury as an alternate, but later replaced
another juror.
The evidence at trial established that Cainion was driving at speeds reaching
100 miles-per-hour through Tampa when he struck multiple vehicles, including a
police car. Although the officer attempted to move out of Cainion’s way, Cainion
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tracked the police car and struck it. Police eventually stopped Cainion and, during
a search of the car police found cocaine. They also discovered a firearm and
ammunition under a bag on the floor. Cainion waived his rights and admitted to
police the drugs were his. The government submitted videos of the chase.
Cainion testified in his own defense, stating that he had been drinking and
did not know the gun and ammunition were in the car. He denied telling police
that the cocaine was his, and he denied striking any cars while driving at high
speed. He asserted that the video tape was doctored. The jury convicted Cainion
of all three charges.
Before sentencing, Cainion moved for a competency hearing, which the
court granted. The psychologist testified that Cainion experienced depression,
hallucinations, and paranoia, and, although he appeared to understand the
adversarial nature of the legal system, his paranoia probably limited his ability to
assist in his defense. At the hearing, Cainion argued that he was not incompetent
but that he had a problem with his attorney. The psychologist stated that Cainion
believed that the government and his attorney were conspiring against him and
that appointing new counsel might alleviate concerns about his ability to assist in
his defense. The magistrate judge concluded that Cainion understood the legal
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system and the charges against him, found Cainion competent, and appointed new
counsel.
The probation officer calculated the advisory guidelines range based on
886.7 grams of cocaine, which resulted in a base offense level of 26 under
U.S.S.G. § 2D1.1(c)(7). The probation officer added a 6-level enhancement under
§ 3A1.2(c)(1) because Cainion’s conduct created a substantial risk of serious
bodily injury to law enforcement, a 2-level enhancement under § 3C1.2 because he
recklessly created a substantial risk of death or serious bodily injury when he fled
and struck a civilian’s car, and a 2-level enhancement for obstruction of justice
under § 3C1.1. Cainion’s advisory guidelines range was 235 to 293 months’
imprisonment for Counts 1 and 3, and there was a mandatory consecutive 60-
month sentence for Count 2, the § 924(c) offense.
Cainion objected to the enhancements under § 3A1.2 and 3C1.2 as double-
counting and he argued that neither enhancement applied to his conduct. The
district court overruled the objections, finding that the evidence showed that
Cainion knew he struck a marked police car and did so intentionally. The court
further found that Cainion’s high speed chase was reckless endangerment during
flight, and, because it put both law enforcement and civilians at risk, both
enhancements were proper. The court sentenced Cainion to 260 months for
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possession of the drugs and firearm, and a consecutive 60 months for the
possession of a firearm in furtherance of a drug-trafficking crime, for a total of
320 months’ imprisonment.
Cainion now appeals, raising three issues: (1) the district court erred when it
denied his motion to strike two jurors for cause; (2) the magistrate judge erred
when it found him competent; and (3) the court erroneously calculated his
sentencing range. We address each in turn.
I.
The United States Constitution protects the right of a criminal defendant to
be tried “by an impartial jury. . . .” U.S. Const. Amend. VI. A district court has
great discretion to determine whether to excuse a prospective juror for cause.
United States v. Flores, 572 F.3d 1254, 1261 (11th Cir. 2009). We review the
district court’s decision on such a question deferentially, determining whether the
record contains “fair support” for the district court’s conclusion that the juror
would be impartial. United States v. Dickerson, 248 F.3d 1036, 1045 (11th Cir.
2001).
The Federal Rules of Criminal Procedure provide that a defendant in a non-
capital felony case is entitled to ten peremptory challenges. Fed. R. Crim. P.
24(b)(2). When a defendant uses a peremptory challenge to remove a juror who
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should have been excused for cause, his right to exercise peremptory challenges
under Rule 24(b) is not denied or impaired. United States v. Martinez-Salazar,
528 U.S. 304, 317 (2000). Indeed, if a defendant cures a court’s error in this way,
he has not been deprived of any rule-based or constitutional right. Id. at 307.
Here, even if the court erred by denying Cainion’s motion to strike Richards
and Ricketts for cause, his use of two peremptory challenges to remove these two
jurors cured the error.1
II.
Cainion next challenges the magistrate judge’s finding that he was
competent to proceed to sentencing. The government argues that Cainion waived
his argument because he failed to object below. In response, Cainion argues that,
under Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982),2 he may raise
this issue because the magistrate judge did not notify him that his failure to file
objections would result in a waiver of his right to further review.
A magistrate judge has the authority to “hear and determine any pretrial
matter pending before the court,” with a limited number of exceptions. See 28
1
Cainion has abandoned any argument that the court erred by denying his motion with
respect to juror Forker. United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010).
2
In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982), we adopted as binding
precedent all Fifth Circuit Unit B decisions from any date.
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U.S.C. § 636(b)(1)(A). In criminal proceedings, if the magistrate judge issues an
order on a non-dispositive matter, a “party may serve and file objections to the
order within 14 days after being served with a copy of a written order” so that the
district court can review and modify it if necessary. Fed. R. Crim. P. 59(a).
“Failure to object in accordance with this rule waives a party’s right to review.”
Id. (emphasis added).
More recently, we reiterated that the “law is settled that appellate courts are
without jurisdiction to hear appeals directly from federal magistrates.” United
States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (quotation omitted).
Addressing a challenge to a magistrate judge’s order that was not first appealed to
the district court, we held that we were without jurisdiction to review the order.
See id. at 1359-62. Because Cainion failed to object to the magistrate judge’s
order, we will not consider his claim.
III.
Cainion challenges the calculation of his sentencing range on two grounds.
First, he argues that the enhancement under U.S.S.G. § 3A1.2(c)(1) was not
warranted. Second, he contends that the application of both § 3A1.2 and § 3C1.2
constitutes impermissible double-counting.
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We review a district court’s application of the guidelines to the facts de
novo. United States v. Lamons, 532 F.3d 1251, 1268 (11th Cir. 2008). We also
review allegations of impermissible double-counting de novo. United States v.
Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). We review a district court’s
factual findings for clear error. Id.
Under U.S.S.G. § 3A1.2(c)(1), a district court should enhance a defendant’s
offense level by six levels “[i]f, in a manner creating a substantial risk of serious
bodily injury, the defendant . . . knowing or having reasonable cause to believe
that a person was a law enforcement officer, assaulted such officer during the
course of the offense or immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1).
This section applies only to “assaultive conduct against such official victims that
is sufficiently serious to create at least a ‘substantial risk of serious bodily injury.’”
Id. § 3A1.2, comment. (n.4). When we have considered the applicability of
§ 3A1.2, we have focused on whether the defendant knew the victim was a law
enforcement officer. United States v. Park, 988 F.3d 107, 110 (11th Cir. 1993);
United States v. Bailey, 961 F.2d 180, 182–83 (11th Cir. 1992).
Under U.S.S.G. § 3C1.2, a two-level increase is appropriate if the defendant
“recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” Id. § 3C1.2. This
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section does not apply “where the offense guideline in Chapter Two, or another
adjustment in Chapter Three, results in an equivalent or greater increase in offense
level solely on the basis of the same conduct.” Id. § 3C1.2, comment. (n.1)
(emphasis added). Double-counting occurs when a district court applies one part
of the guidelines to increase a defendant’s punishment on account of a kind of
harm that was already fully accounted for by the application of another part of the
guidelines. United States v. White, 663 F.3d 1207, 1217 (11th Cir. 2011). Cainion
does not challenge the application of § 3C1.2 except insofar as he contends that,
coupled with § 3A1.2, it constitutes impermissible double-counting.
We have stated that a defendant’s challenge to the application of both
U.S.S.G. §§ 3A1.2 and 3C1.2 was meritless when, while speeding away from law
enforcement officers, the defendant struck a law enforcement officer with a
vehicle, then continued to recklessly operate that vehicle while fleeing. United
States v. Matos-Rodriguez, 188 F.3d 1300, 1304 (11th Cir. 1999). We reasoned
that the defendant’s assault of the law enforcement officer was temporally and
spatially distinct from his reckless conduct in leading law enforcement officers on
a high-speed chase. Id. at 1312.
Neither of Cainion’s contentions on appeal have merit. First, undisputed
portions of the PSI and information at sentencing showed that Cainion (1) drove
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his vehicle at excessive speeds, hitting a marked law enforcement vehicle while an
officer was still inside, and (2) knew or had reason to know that the victim was a
law enforcement officer. Thus, the central question is whether this constituted an
“assault,” i.e., whether Cainion intentionally struck the law enforcement vehicle.
The officer testified that he had attempted to avoid Cainion, who continued to
track the car before striking it. Although Cainion contends that the video shows
that he lost control of his vehicle before hitting the marked law enforcement
vehicle, the video does not conclusively do so.
Cainion’s reliance on United States v. Hampton, 346 F.3d 813, 815 (8th Cir.
2003), is misplaced. In Hampton, the Eighth Circuit concluded that § 3A1.2 did
not apply when the defendant lost control of his vehicle after running over “stop
sticks” placed in the road by police. In Cainion’s case, however, Cainion
intentionally struck the officer’s vehicle and continued to drive at high speeds
until stopped by police. Thus, the record supports the district court’s finding that
Cainion acted intentionally, which in turn shows that the court properly applied
§ 3A1.2.
Second, the district court did not engage in impermissible double-counting
here. In addition to striking the law enforcement officer’s vehicle, Cainion drove
recklessly for several miles at high speeds, endangered others, and striking a
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civilian vehicle. Thus, the district court appropriately applied both enhancements.
Although both were imposed as a result of his reckless driving, Cainion’s assault
of the police vehicle and his reckless driving generally were temporally and
spatially distinct from each other. His conduct “did not occur in a small area of
only ‘two or three car lengths,’ or in a brief expanse of time.” Matos-Rodriguez,
188 F.3d at 1312. Thus, the §§ 3A1.2 and 3C1.2 enhancements were not based
solely on the same conduct, and there was no improper double-counting. U.S.S.G.
§ 3C1.2, comment. (n.1).
Because Cainion has failed to demonstrate any error, we affirm his
convictions and sentences.
AFFIRMED.
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