[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 7, 2003
No. 01-16451 THOMAS K. KAHN
CLERK
D.C. Docket No. 00-00196-CR-T-27
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSVALDO RUBIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(January 7, 2003)
Before TJOFLAT and BLACK, Circuit Judges, and NANGLE*, District Judge.
NANGLE, District Judge:
*
Honorable John F. Nangle, United States District Court Judge for the Eastern
District of Missouri, sitting by designation.
Defendant Rubio challenges his convictions and 327-month sentences for
conspiracy to possess with intent to distribute, and possession with intent to distribute,
approximately 1000 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Specifically, he claims that the district court erred by: (1) finding that driving under
the influence causing serious bodily harm is a crime of violence; (2) refusing to grant
an adjustment for acceptance of responsibility; and (3) enhancing Rubio’s offense
level for obstruction of justice.1 We affirm.
The relevant background of this case is as follows. In January 2000, Bureau of
Alcohol, Tobacco and Firearms agent Richard Zayas (“Agent Zayas”) learned that
Edgardo Fernandez (“Fernandez”), a convicted felon, was in the business of selling
firearms and narcotics. Working undercover, Agent Zayas acquainted himself with
Fernandez and purchased two firearms from him. In April 2000, Agent Zayas told
1
Rubio also contends that the district court erred by: (1) refusing to assess a
mitigating role reduction; (2) failing to grant a judgment of acquittal based on an
alleged insufficiency of the evidence presented at trial to support his conviction for
possession of cocaine; and (3) committing plain error based upon Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.435 (2000), because the indictment
did not include his prior convictions that qualified him as a career offender. After a
thorough review of the record and full consideration of Rubio’s arguments, we affirm
the first two issues without discussion. See 11th Cir. R. 36-1. We affirm the third issue
based on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998), which, as Rubio concedes, remains good law after Apprendi. See
United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.), cert. denied, 533 U.S.
960, 121 S.Ct. 2616, 150 L.Ed.2d 770 (2001).
2
Fernandez that he had obtained multiple kilograms of cocaine. Fernandez arranged
to sell some of the cocaine to a friend of Rubio’s. When Fernandez took possession
of the first kilogram of cocaine, however, he was arrested and agreed to cooperate
with the government.
The government set up video and audio surveillance equipment in Fernandez’s
residence. Fernandez then called Rubio and asked whether Rubio was coming over
with his friend and the money. Rubio and his friend came over to Fernandez’s
residence, but without the money. Rubio’s friend tested the cocaine extensively, and
Rubio tested it once. Rubio and his friend then left to get the money to buy the
cocaine. Rubio returned to Fernandez’s residence alone and handed Fernandez a bag
containing approximately $22,000 in cash. Rubio picked up the cocaine, and law
enforcement officers entered the room. Seeing the officers, Rubio put the cocaine
back down on the table.
Rubio was charged in a June 13, 2000, indictment with: (1) conspiracy to
possess with intent to distribute cocaine in the amount of 1,000 or more grams; and
(2) possession with intent to distribute cocaine. On January 29, 2001, he agreed to
enter a guilty plea, which was accepted on February 16, 2001. Rubio accepted
responsibility for his actions in conjunction with his guilty plea. Subsequently,
however, Rubio learned that his 1994 conviction for driving under the influence
3
potentially could subject him to career offender status under the Sentencing
Guidelines. On May 7, 2001, Rubio therefore moved to withdraw his guilty plea.
On May 17, 2001, the Court granted Rubio’s motion to withdraw the guilty
plea. Rubio did not accept responsibility for his actions at any time thereafter. On
July 13, 2001, after a jury trial in which Fernandez testified, Rubio was found guilty
of both charges. After trial but before sentencing, Rubio approached Fernandez at the
local jail yard and pinched him. Rubio said nothing to Fernandez during this incident.
The court sentenced Rubio to 327 months on each count, to run concurrently,
followed by four years of supervised release. For the purposes of sentencing, the
court: (1) treated Rubio as a career offender based on his prior conviction for driving
under the influence; (2) enhanced Rubio’s sentence for obstruction of justice; and (3)
refused to reduce Rubio’s sentence for acceptance of responsibility. Rubio then
appealed.
First, Rubio claims that the district court erred by ruling that his conviction for
driving under the influence (“DUI”) causing serious bodily injury is a crime of
violence for the purpose of the career offender provisions of the sentencing guidelines.
We review a district court’s interpretation of the sentencing guidelines de novo.
United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). Under the sentencing
4
guidelines, a defendant is classified as a career offender if: (1) he was at least 18 years
old at the time he committed the instant offense of conviction; (2) the instant offense
of conviction is a felony that is either a crime of violence or a controlled substance
offense; and (3) he had at least two prior felony convictions of a crime of violence or
controlled substance offense. U.S.S.G. § 4B1.1. A “crime of violence” includes
murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery,
arson, extortion, extortionate extension of credit, and burglary of a dwelling. U.S.S.G.
§ 4B1.2, comment. n.1. Other offenses are considered crimes of violence if (1) such
other offense has as an element the use, attempted use, or threatened use of physical
force against another; or (2) the conduct underlying the conviction involved the use
of explosives or, by its nature, presented a serious potential risk of physical injury to
another. Id.
The district court held that Rubio’s felony DUI conviction was a crime of
violence under § 4B1.2, and Rubio therefore was a career offender, because his DUI
causing serious bodily injury presented a serious potential risk of physical injury to
another. In so holding, the district relied upon United States v. Rutherford, 54 F.3d
370 (7th Cir. 1995). In Rutherford, the Seventh Circuit recognized that DUI creates
a serious risk of physical injury to another and held that the defendant’s first-degree
assault conviction for DUI causing serious injury was a crime of violence under the
5
career offender provision of the sentencing guidelines. Id. at 377. Several other
Circuits have reached similar conclusions. See United States v. Jernigan, 257 F.3d
865, 866 (8th Cir. 2001) (negligent homicide while driving under influence); United
States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (misdemeanor
offense of driving under influence); United States v. Farnsworth, 92 F.3d 1001, 1008-
09 (10th Cir. 1996) (killing a human being while driving under influence).
While we previously have not addressed the question of whether DUI causing
serious =-bodily injury is a crime of violence under the career offender guidelines, we
have held that DUI causing serious bodily injury is a crime of violence. Le v. U.S.
Atty. Gen., 196 F.3d 1352, 1354 (11th Cir. 1999). In Le, we affirmed a determination
by the Board of Immigration Appeals that an alien was subject to deportation because
his DUI causing serious bodily injury was a crime of violence under § 101(a)(43)(F)
of the Immigration and Naturalization Act (“INA”). Under the INA, a “crime of
violence” is:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person of
another, or (b) any other offense that is a felony and that,
by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16. Based upon our holding in Le, and the
substantial similarity of the definition of “crime of violence” under the INA and the
6
sentencing guidelines, we find that the offense of DUI causing serious bodily injury
is a crime of violence under the sentencing guidelines. Accordingly, Rubio’s prior
conviction for DUI causing serious bodily injury properly subjected him to enhanced
penalties as a career offender.
Rubio next contends that the district court erred by refusing to grant him an
offense level reduction for acceptance of responsibility under § 3E1.1. He claims that
he demonstrated an acceptance of responsibility by initially attempting to plead guilty
prior to trial, and that he withdrew his plea only to preserve a sentencing issue with
respect to his career offender status. Rubio argues that the court may not deny him
a reduction simply because he exercised his constitutional right to a trial.
The district court’s determination of whether a defendant is entitled to a
reduction for acceptance of responsibility is a finding of fact which is entitled to great
deference on appeal and will be affirmed unless clearly erroneous. United States v.
Rodriguez, 959 F.2d 193, 195 (11th Cir. 1992). The application of the guidelines,
however, is reviewed de novo. Id. The sentencing guidelines allow a reduction in
offense level for a defendant who shows remorse or contrition for his crime if the
sentencing court finds that he has accepted responsibility for his crime. Id. Section
3E1.1 provides that:
(a) If the defendant clearly demonstrates acceptance of
7
responsibility for his offense, decrease the offense level by
2 levels.
(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to the
operation of subsection (a) is level 16 or greater, and the
defendant has assisted authorities in the investigation or
prosecution of his own misconduct by taking one or more
of the following steps:
...
(2) timely notifying authorities of his intention to enter a
plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to allocate its
resources efficiently, decrease the offense level by 1
additional level.
U.S.S.G. § 3E1.1. In Rodriguez, the district court denied the defendants’ request for
a reduction based upon acceptance of responsibility on the grounds that the defendants
had not admitted their guilt in open court and would not agree not to appeal the
judgment. Rodriguez, 959 F.2d at 197. We found this to be improper, stating:
If the defendant has exercised all of his rights during the
entire process, including sentencing, then the chances of his
receiving the two level reduction for acceptance of
responsibility may well be diminished. . . . However, if a
defendant has shown some sign of remorse but has also
exercised constitutional or statutory rights, the sentencing
judge may not balance the exercise of those rights against
the defendant's expression of remorse to determine whether
the "acceptance" is adequate.
Id.
In the instant case, Rubio initially appeared to accept responsibility by offering
a plea of guilty. He withdrew such plea, however, and thereafter steadfastly failed to
8
accept responsibility further. He put the government to its proof and consistently
attempted to minimize his role, despite videotaped evidence to the contrary. Rubio,
therefore, has not accepted responsibility under § 3E1.1, and the district court did not
err in refusing to grant him a reduction.
Finally, Rubio claims that the district court erred by applying a two-level
enhancement for obstruction of justice based on Rubio’s assault of Fernandez, a
witness at Rubio’s trial. Rubio tries to minimize the nature of such assault, and further
contends that because such assault occurred after the trial, it therefore had no effect
on the investigation or prosecution of his case. The determination of whether to grant
an increase for obstruction of justice under the guidelines is a finding of fact which
is reviewed for clear error. United States v. Geffrard, 87 F.3d 448, 452 (11th Cir.
1996). The application of the guidelines to the facts is reviewed de novo. Id.
Pursuant to § 3C1.1, a defendant’s offense level may be increased by two levels
if the court finds that:
(A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecution,
or sentencing of the instant offense of conviction, and (B)
the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
U.S.S.G. § 3C1.1. This section authorizes enhancement based upon any conduct
9
which is prohibited by the obstruction of justice provisions of Title 18. Id., comment.
n.4(i). Title 18 § 1513(b) prohibits a person from inflicting bodily injury on a witness
with the intent to retaliate against that witness. 18 U.S.C. § 1513(b).
The district court did not clearly err in determining that Rubio’s assault on
government witness and codefendant Fernandez was in retaliation for Fernandez’s
cooperation with the government during the investigation and trial. As such, the
assault fits within the range of conduct justifying a § 3C1.1 enhancement for
obstruction of justice. Even if the district court had erred, however, such error would
be harmless because, based upon the application of the career offender guidelines,
Rubio’s offense level is raised to 34, thereby making the § 3C1.1 enhancement
irrelevant. See United States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)
(harmless error is error which does not affect the substantial rights of the defendant).2
For the foregoing reasons, we conclude that the district court did not err in its
convictions and sentences of Rubio.
AFFIRMED.
2
Because of the effect of Rubio’s career offender status, the district court
granted an upward departure based on Rubio’s obstructive conduct pursuant to §
5K2.0, which authorizes such a departure if the sentencing court finds an aggravating
factor “not adequately taken into consideration” by the sentencing commission.
United States v. Regueiro, 240 F.3d 1321, 1324 (11th Cir. 2001). Rubio has assigned
no error to the district court’s § 5K2.0 upward departure.
10