United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 26, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-50294
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
GARY M. BRUGMAN
Defendant - Appellant
Appeal from the United States District Court
For the Western District of Texas, Del Rio
Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Border patrol agent Gary M. Brugman challenges his conviction
and sentence for a violation of 18 U.S.C. §242 - depriving another
of his constitutional rights while acting under color of law.
Brugman’s primary objection relates to the sufficiency of the
government’s evidence to establish that he used unreasonable force
in effecting an arrest and whether his conduct resulted in
constitutional injury to the victim. For reasons outlined below we
find no error and affirm.
I.
Appellant Gary M. Brugman was employed as a United States
Border Patrol agent stationed at Eagle Pass, Texas. In the late
afternoon or early evening of January 14, 2001, Brugman, while on
duty, responded to a sensor alert in the Roseta Farms Pecan Orchard
area near the United States-Mexico border. Brugman and his partner
drove in the direction of the sensor and observed approximately ten
individuals attempting to enter the United States illegally.
Brugman exited his vehicle and chased the group on foot, yelling in
Spanish for them to stop.
Meanwhile, two other Border Patrol agents, Marcelino Alegria
and Remberto Perez, heard radio reports that Brugman was responding
to a sensor alert, so they proceeded in their vehicle in the
direction of the sensor to provide assistance. The pair eventually
located the fleeing individuals but, after encountering an
irrigation ditch that blocked their pursuit, the agents were forced
to continue their chase on foot. After exiting the vehicle,
Alegria quickly caught up with the group and apprehended them.
According to Alegria, he instructed the group, which consisted of
eight to ten illegal aliens from Mexico, to sit down on the ground
on their buttocks. The men obeyed the instructions and sat on the
ground in a semi-circle.
Less than a minute later, Brugman, who was still chasing the
2
group, arrived at the scene. Brugman approached the group and
began asking them why they were running. Brugman then directed his
questions specifically to one man, Miguel Jimenez-Saldana, asking
him, “Do you like to run?” or “Do you want to run?” When Jimenez-
Saldana did not respond, Brugman kicked him, knocking him to the
ground. Despite the fact that Jimenez-Saldana did not fight back,
resist, or move, Brugman began to punch Jimenez-Saldana in the ribs
with his hands. Brugman then approached a second alien, posed the
same questions to him, and kicked him over as well. The second
alien also refrained from fighting back, resisting, or moving.
Thereafter, Brugman, Alegria, and Perez (who by now had also
arrived at the scene), formally arrested the aliens and led them
away to a transport vehicle to be processed. When the aliens
arrived at the Border Patrol station, Jimenez-Saldana saw a sign
encouraging individuals to report abuse by Border Patrol agents.
Jimenez-Saldana mentioned the incident to a Border Patrol officer
who then filed a formal complaint on Jimenez-Saldana’s behalf.
A grand jury indicted Brugman with one count of depriving
another of his constitutional rights while acting under the color
of law, in violation of 18 U.S.C. § 242.1 Brugman pled not guilty
and was tried before a jury in a four-day trial. The jury found
1
The indictment alleged that Brugman, “while acting under the
color of law, did kick and strike Miguel Angel Jimenez-Saldana,
resulting in bodily injury,” and thereby “did wilfully deprive
Miguel Angel Jimenez-Saldana of his rights secured and protected by
the Constitution and laws of the United States to be free from the
use of unreasonable force by one acting under color of law.”
3
Brugman guilty. After denying Brugman’s post-trial motions and
overruling Brugman’s objections to the PSR, the district court
sentenced Brugman to 27 months’ imprisonment followed by two years
of supervised release. This appeal followed.
II.
We consider first Brugman’s challenge to the sufficiency of
the evidence. The standard of review for a claim of insufficient
evidence is whether “a rational trier of fact could have found that
the evidence establishes the essential elements of the offense
beyond a reasonable doubt.” United States v. Villarreal, 324 F.3d
319, 322 (5th Cir. 2003) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). The court reviews the evidence in the light most
favorable to the government with all reasonable inferences and
credibility choices to be made in support of the jury's verdict.
United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002) (citing
United States v. Hinojosa, 958 F.2d 624, 628 (5th Cir. 1992)). The
evidence need not exclude every reasonable hypothesis of innocence
and the jury is free to choose among reasonable interpretations of
the evidence. United States v. Perrien, 274 F.3d 936, 939-40 (5th
Cir. 2001).
Brugman contends the evidence was insufficient in two
respects. First, he maintains the government failed to provide
sufficient proof that Brugman acted with the specific intent to
deprive Jimenez-Saldana of his constitutional rights. Second,
4
Brugman contends the evidence is insufficient to establish that
Jimenez-Saldana suffered constitutional injury.
A.
Brugman argues that the government failed to prove that he
acted with the specific intent to deprive Jimenez-Saldana of his
right to be free from the use of unreasonable force because: 1) the
testimony of government witnesses who observed Brugman kick and
strike Jimenez-Saldana was so conflicting and inconsistent that it
gave more support to a theory of innocence than to a theory of
guilt; and 2) Brugman’s use of force was reasonable because he
believed that Jimenez-Saldana was going to flee or attack Alegria.
A violation of 18 U.S.C. § 242 requires an individual to: 1)
willfully; 2) deprive another of a federal constitutional right; 3)
under color of law. United States v. Williams, 343 F.3d 423, 431-32
(5th Cir. 2003). The indictment upon which Brugman was ultimately
convicted charged him with wilfully and intentionally depriving
Jimenez-Saldana of his constitutional rights by subjecting him to
the excessive use of force, thereby causing Jimenez-Saldana bodily
injury. “Wilfulness,” as defined within the context of section
242, requires the jury to find that a defendant acted “in open
defiance or in reckless disregard of a constitutional requirement
which has been made specific and definite.” Screws v. United
States, 325 U.S. 91, 105 (1945).
In determining whether there was a “constitutional requirement
5
which has been made specific and definite” that Brugman acted in
open defiance of, we focus our analysis on the Fourth Amendment.
The Fourth Amendment’s protection against unreasonable search and
seizures requires that officers refrain from using excessive force,
that is, more force than is reasonably necessary, when effectuating
an arrest. Graham v. Connor, 490 U.S. 386, 394-95 (1989). “It is
clearly established law in this circuit that in order to state a
claim for excessive force in violation of the Constitution, a
plaintiff must allege (1) an injury, which (2) resulted directly
and only from the use of force that was clearly excessive to the
need; and the excessiveness of which was (3) objectively
unreasonable.” Bazan v. Hidalgo County, 246 F.3d 481, 487 (5th Cir.
2001) (citation omitted). Whether force is reasonable in an
excessive force case is viewed under an objective standard, i.e.,
“the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them,” Graham, 490 U.S. at 397, “including the severity of the
crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396.
The jury was entitled to find from the eyewitness testimony
that Brugman used excessive force against Jimenez-Saldana.
Specifically, Agent Alegria, who was the first Border Patrol agent
to catch up with the fleeing group, testified that once he was able
6
to stop the aliens, all of them complied with his order to sit on
their buttocks. Alegria further testified the aliens were seated
in a circle in a “secure and safe” position and that he was outside
of that circle facing them when Brugman approached the group.
According to Alegria, it was at this time that Brugman approached
Jimenez-Saldana and asked him, “Do you like to run?” When Jimenez-
Saldana did not respond, Alegria stated that Brugman pushed
Jimenez-Saldana to the ground with his foot and “punched him a
couple of times on the rib side” with such force that Alegria could
“hear the pounds” on Jimenez-Saldana’s ribs. Thereafter, Alegria
testified, Brugman approached a second alien, asked the same
question he had posed to Jimenez-Saldana about whether he liked to
run, and then pushed him down as well, delivering one or two
punches to the second alien.
Agent Alegria’s testimony was supported by Jimenez-Saldana who
testified that he obeyed Alegria’s command to sit on his buttocks
and at no point thereafter did he or any other alien attempt to
stand. Jimenez-Saldana further testified that Brugman approached
him, asked him if he wanted to run, kicked him, and then “grabbed
from the back of the head and pushed my head into the ground.”2
Agent Perez, who was providing support in the chase,
approached the group on foot and witnessed the alleged incident
from 80 to 100 yards away. Perez testified that the aliens
2
Jimenez-Saldana testified in Spanish through a court
interpreter.
7
appeared to be stationary although a couple of them looked like
they were kneeling. Perez stated that he then observed Brugman
kick one of the aliens and, although he was some distance from the
scene, he “heard a thud” from the impact of Brugman’s kick.
Brugman maintains that this court must reverse his conviction
because of the inconsistent testimony from the Government’s three
witnesses. Specifically, Brugman contends Alegria’s testimony that
Brugman “pushed” Jimenez-Saldana with his foot and then “punched”
him with his hands is inconsistent with Jimenez-Saldana’s own
testimony that Brugman “kicked” and then “pushed” his head to the
ground.
Brugman’s argument is unpersuasive. The indictment alleged
that Brugman “did kick and strike” Jimenez-Saldana. Both Alegria
and Jimenez-Saldana testified that Brugman, after asking Jimenez-
Saldana whether he liked to run, struck him with his foot and
caused him to fall to the ground, after which Brugman got down on
his knees and used his hands to strike Jimenez-Saldana again,
either by “punching” as described by Alegria or by “grabbing” and
“pushing” as stated by Jimenez-Saldana. While Alegria and Jimenez-
Saldana may have used different terminology to describe the
incident, their version of Brugman’s conduct is substantially
similar.
Brugman also argues that because Agent Perez only saw Brugman
kick, not strike, Jimenez-Saldana his conviction is infirm. Again,
this argument is unpersuasive. Perez acknowledged that because of
8
his distance from the incident, there were many things he could not
see. Perez’ testimony is highly probative, however, as to the
level of force Brugman used. Perez testified that even from 80 to
100 yards away, he heard a loud thud immediately after seeing
Brugman kick Jimenez-Saldana. While Perez’s observation that some
of the aliens appeared to be kneeling is inconsistent with the
testimony elicited from the other government witnesses, this
inconsistency does not negate the highly probative value of Agent
Alegria’s testimony, who was the closest agent to the scene and
testified that all aliens complied with his order to sit on their
buttocks.
Moreover, there was evidence presented at trial regarding the
“Use of Force” Model, which is used to instruct federal law
enforcement officers on how to select an appropriate level of force
when responding to a suspect’s actions. The Model is explicitly
based upon the Supreme Court’s articulation of the Fourth
Amendment’s “objective reasonableness” test. See Graham, 490 U.S.
at 397. According to the Model, when a suspect is passively
resistant, an officer should use “soft empty hand controls” and
verbal commands to direct the suspect. Based on eye witness
testimony Jimenez-Saldana did not resist arrest, was complying with
the agent’s orders, and by all accounts (except Brugman’s) was at
most passively resistant. Therefore, under this model the jury was
entitled to find that any physical force Brugman used in excess of
soft empty hand controls was objectively unreasonable.
9
Brugman himself testified that he kicked Jimenez-Saldana,
using more than a de minimis amount of force. Specifically,
Brugman testified that “when I ran up and pushed him with my foot,
I pushed him with 100 percent of my force, and I did sit him down
quite rough, yes.” Brugman further testified that “100 percent” of
his force included 195 pounds of body weight plus an additional 25
pounds of gear. Thus, Brugman’s own testimony, corroborates the
eye witness testimony that Brugman’s use of force against Jimenez-
Saldana was excessive and objectively unreasonable.
In sum, the record evidence supports the jury’s implicit
findings that: 1)Brugman acted willfully, i.e., in open defiance of
a recognized constitutional requirement when he kicked and then
struck Jimenez-Saldana; and 2)that Jimenez-Saldana was deprived of
his Fourth Amendment rights as a result of Brugman’s use of
excessive force, which was objectively unreasonable.
B.
Brugman also argues that the evidence was insufficient to
prove that his conduct resulted in bodily injury to Jimenez-Saldana
because unsubstantiated allegations of physical pain which are de
minimis, do not result in a constitutional violation. In order to
satisfy the injury requirement for purposes of section 242, it is
not necessary for the jury to find that the victim suffered
"significant injury." United States v. Harris, 293 F.3d 863, 870
(5th Cir. 2002), cert. denied, 537 U.S. 950 (2002) (citing United
10
States v. Sanchez, 74 F.3d 562, 565 (5th Cir. 1996)). The
government need only show that the victim suffered “some” injury
although this requires proof of more than “de minimis injury”.
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (citing Ikerd
v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)). In determining
whether an injury is more than de minimis this court has explained:
[W]e look to the context in which that force was
deployed. "[T]he amount of injury necessary to satisfy
our requirement of 'some injury' and establish a
constitutional violation is directly related to the
amount of force that is constitutionally permissible
under the circumstances."
What constitutes an injury in an excessive force claim is
therefore subjective--it is defined entirely by the
context in which the injury arises.
Id. at 703-04 (internal citation omitted).
As we stated in Ikerd:
Similarly, even in the fourth amendment context, a
certain amount of force is obviously reasonable when a
police officer arrests a dangerous, fleeing suspect. See
Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 1697,
85 L.Ed.2d 1 (1985). On the other hand, in the context
of custodial interrogation, the use of nearly any amount
of force may result in a constitutional violation when a
suspect “poses no threat to [the officers’] safety or
that of others, and [the suspect] does not otherwise
initiate action which would indicate to a reasonably
prudent police officer that the use of force is
justified.” Ware v. Reed, 709 F.2d 345, 351 (5th Cir.
1983).
Ikerd, 101 F.3d at 434.
The importance of the context in which the injury is sustained
is well illustrated in Bramer. In Bramer, this court was faced
with a similar question of determining whether, a victim’s alleged
11
injuries were sufficient to constitute a constitutional violation.
180 F.3d at 704. In that case, the victim alleged that he suffered
the same physical injury, loss of breath and momentary dizziness,
after two separate encounters in which he was choked by the
officer, Bramer. Id. During the first encounter Bramer was
conducting a search of the victim’s mouth. The second encounter
occurred after the victim threatened to report Bramer. The court
found that the injuries sustained during the search did not rise to
the level of a constitutional violation. However, in the second
incident, in choking the victim, the officer acted maliciously, and
therefore was “not legitimately exercising force in the performance
of his duties as a police officer.” Id. The court concluded, “[i]n
this context, we hold that, although suffering from dizziness, loss
of breath, and coughing are not significant injuries, combined,
they qualify as a cognizable injury when the victim is maliciously
assaulted by a police officer.” Id.
As previously discussed, the evidence established that Brugman
willfully kicked and struck Jimenez-Saldana at a time when Jimenez-
Saldana was no longer fleeing or actively resisting the Border
Patrol officers authority. As such, Brugman was not “legitimately
exercising force in the performance of his duties” as a Border
Patrol agent. Although no evidence of visible manifestation of
injury was produced, Jimenez-Saldana testified that upon being
kicked, he felt pain and lost his breath. This testimony is
consistent with Agent Alegria’s testimony that he heard Jimenez-
12
Saldana emit a “grunting noise” while being kicked and struck.
Jimenez-Saldana further testified that he experienced residual pain
for approximately three days after the incident.
The court in Bramer did not require manifestation of the
alleged injury. Certainly, it would be difficult to document
physical signs of dizziness, loss of breath, or coughing. Based on
the context within which Brugman exercised force against Jimenez-
Saldana and the resulting testimony from Jimenez-Saldana regarding
the extent of his physical injuries, we are satisfied that Jimenez-
Saldana’s injuries exceeded the de minimis threshold. Therefore,
viewing the evidence in the light most favorable to the government,
there was sufficient evidence to support the jury’s finding that
Brugman’s conduct resulted in “some injury” to Jimenez-Saldana in
violation of 18 U.S.C. § 242.
III.
Brugman argues next that the district court erred in
overruling his objection to “similar act” evidence under F.R.E.
404(b) to establish his intent. The alleged “similar act” occurred
approximately six weeks after the instant offense. The
government’s witness, Rodriguez-Silva, testified that he and a
group of friends were attempting to carry approximately 100
kilograms of marijuana into the United States from Mexico. Shortly
after crossing the border, the group was detected by Border Patrol
agents. Rodriguez-Silva stated that Brugman chased after him, and
13
screamed for him to stop. Rodriguez-Silva thereafter twisted his
ankle and fell, allowing Brugman to easily detain him. Although he
offered no resistance, Rodriguez-Silva testified that Brugman
climbed on top of him, put his elbows and knees into Rodriguez-
Silva’s neck and stomach, and then proceeded to put on a pair of
gloves and punch Rodriguez-Silva three times in the nose.
Rodriguez-Silva testified that he felt pain as a result of being
beaten. Moreover, the injuries for which Rodriguez-Silva received
medical treatment were depicted in a photograph taken immediately
after his arrest. The district court overruled Brugman’s objection
and admitted the testimony.
We review the district court's admission of extrinsic offense
evidence over a Rule 404(b) objection under a "heightened" abuse of
discretion standard. United States v. Jackson, 339 F.3d 349, 354
(5th Cir. 2003) (citation omitted). Evidence admitted in a
criminal case must be “strictly relevant to the particular offense
charged.” Id. (citation omitted). Whether the district court erred
in admitting Rule 404(b) evidence depends on whether its decision
satisfies the two-prong Beechum test adopted by this Court for
examining the admissibility of extrinsic evidence. Sanders, 343
F.3d 511, 517 (5th Cir. 2003) (citing United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978)). Under the Beechum analysis, “the
court must first determine that the extrinsic evidence is relevant
to an issue other than the defendant's character, i.e., motive,
opportunity, intent, preparation, plan, knowledge, identity, or
14
absence of mistake or accident.” Sanders, 343 F.3d at 518. Second,
"the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the
other requirements of Rule 403." Id. (citation omitted).
Under the first prong, “the relevancy of the extrinsic
evidence derives from the defendant’s indulging himself in the same
state of mind in the perpetration of both the extrinsic and charged
offenses. The reasoning is that because the defendant had unlawful
intent in the extrinsic offense, it is less likely that he had
lawful intent in the present offense.” Beechum, 582 F.2d at 911.
If an extrinsic act requires the same intent as the charged offense
and the jury could reasonably find that the defendant committed the
extrinsic act, then the extrinsic act is relevant to an issue other
than the defendant’s character, and the first prong is thus
satisfied. Id. at 911-13.
Because the crime for which Brugman was charged has as an
element an intent requirement, Brugman’s intent was at issue, and
the admission of extrinsic evidence could therefore be relevant to
prove intent. Also, the government adequately demonstrated that
the defendant committed the “other act.” Id. at 913. See also
Huddleston v. United States, 485 U.S. 681, 685-91 (1988). The
judge may only decide this preliminary issue against the
government, “where the jury could not reasonably find the
preliminary fact to exist." Beechum, 82 F.3d at 913 (internal
footnote and citation omitted). The district court was presented
15
with the following evidence regarding the Rodriguez-Silva incident:
1) the direct testimony of Rodriguez-Silva that he did not resist
arrest once apprehended; 2) Rodriguez-Silva’s testimony that
Brugman forcibly pinned him to the ground and punched him in the
nose three times; and 3) photographic evidence corroborating
Rodriguez-Silva’s account of his injury. Based on this evidence,
the district court was entitled to find that the jury could
reasonably conclude that Brugman intended to use excessive force
against Rodriguez-Silva.
In considering Beechum’s second prong, the Beechum court
identified three factors a district judge should consider when
making a ruling on the probative value versus prejudicial effect
issue. These factors include: 1) “the extent to which the
defendant’s unlawful intent is established by other evidence,
stipulation, or inference”; 2) “the overall similarity of the
extrinsic and charged offenses”; and 3) “how much time separates
the extrinsic and charged offenses.” Id. at 914-15.
Applying the facts of the instant case to the framework
established in Beechum, the district court did not err in finding
that the probative value of the extrinsic evidence outweighs any
unfair prejudice to Brugman. First, although the government
offered the testimony of three witnesses to prove that Brugman
acted with the requisite specific intent to deprive Jimenez-
Saldana of his constitutional rights, one of Brugman’s central
arguments was that his intent was to use reasonable force to
16
subdue Jimenez-Saldana and not to use excessive force. Second,
there are striking similarities between the extrinsic and charged
offenses, including: 1) both the charged offense and the extrinsic
act involved Brugman’s intent to deprive another of his
constitutional rights by using unreasonable force to effectuate an
arrest; 2) both offenses involved an illegal alien who was running
away from Brugman after being discovered; and 3) both aliens
testified that they had complied with Brugman’s orders and were
not resisting arrest. Third, the extrinsic act took place less
than six weeks after the instant offense, which in this Circuit is
temporally sufficient. See, e.g., United States v. Moye, 951 F.2d
59, 60, 62 (5th Cir. 1992) (finding that an earlier offense
committed approximately a year and a half later “was not so remote
in time to the charged offense to deprecate its probity”).
Finally, Brugman argues the district court erred by not sua
sponte issuing a limiting instruction at the time the testimony
relating to the extrinsic act was offered. However, the district
court did issue a limiting instruction in the jury charge that
limited the jury’s consideration of the extrinsic act to the issue
of Brugman’s intent.3 In sum, the district court did not abuse its
3
The jury charge read as follows:
25. You have heard evidence that the defendant committed an
act which may be similar to the one charged in the indictment, but
which was committed on another occasion. You must not consider
that evidence in deciding whether the defendant committed the act
charged in the indictment. However, you may consider this evidence
for other, very limited purposes.
17
discretion in finding that the probative value of the extrinsic
evidence was not outweighed by unfair prejudice. The district
court did not err in admitting this evidence.
IV.
The district court sentenced Brugman to 27 months’
imprisonment followed by two years’ supervised release. On
appeal, Brugman raises two specific challenges to the district
court’s calculation of his sentence: 1)the adjustment for a
vulnerable victim was improper; and 2) he was entitled to a
reduction based on acceptance of responsibility.4
A.
Brugman argues that the district court erred in increasing
his offense level by two under United States Sentencing Guideline
§ 3A1.1(b)(1), which authorizes such an adjustment if the offense
26. If you find beyond a reasonable doubt from the evidence
in this case that the defendant did commit the act charged in the
indictment, then you may consider evidence of the similar act
allegedly committed on another occasion to determine:
Whether the defendant had the state of mind or intent
necessary ***[, or]*** the motive or the opportunity to commit
the act charged in the indictment; or *** acted according to
a plan or in preparation for the commission of a crime; or ***
committed the act for which he is on trial by accident or
mistake.
27. These are the limited purposes for which any evidence of
a similar act may be considered (1 R. 111-112).
4
Brugman also makes a general argument that the facts as stated
in the PSR are contrary to evidence produced at trial. Brugman
offers no specific arguments in support of these statements or how
this alleged misstatement of the facts affected his sentence.
18
involved a “vulnerable victim.”
For the two-level enhancement under § 3A1.1(b)(1) to apply,
the victim must be "unusually vulnerable due to age, physical or
mental condition, or . . . otherwise particularly susceptible to
the criminal conduct." U.S. Sentencing Guidelines Manual
§ 3A1.1(b) & cmt. n.2. “We review the district court's
interpretation of the guidelines de novo; we review a finding of
unusual vulnerability for clear error and to determine whether the
district court's conclusion was plausible in light of the record
as a whole." United States v. Lambright, 320 F.3d 517, 518 (5th
Cir. 2003) (per curiam) (citing United States v. Robinson, 119
F.3d 1205, 1218 (5th Cir. 1997)).
Citing our previous holding in United States v. Clayton,
172 F.3d 347, 353 (5th Cir. 1999), the Lambright court observed
that the two-level enhancement was appropriate where a former
deputy sheriff assaulted a victim who “could not defend herself
against an assault, and could not flee from harm" and that "[the
defendant] took advantage of this restraint and the particular
vulnerability of the victim." Lambright, 320 F.3d at 518. In the
instant case, the victim was immobile, sitting on the ground, and
under the supervision of another Border Patrol agent. Brugman
took advantage of this susceptibility and assaulted the victim
while he was in this passive state. Accordingly, the district
court’s two-level enhancement based on its finding that Jimenez-
Saldana was a vulnerable victim is not clearly erroneous.
19
B.
Brugman also argues that the district court erred in refusing
to decrease his offense level by two points pursuant to § 3E1.1,
which permits such a reduction for demonstrating an acceptance of
responsibility for one’s offense. However, the sentencing
guidelines instruct that “[t]his adjustment is not intended to
apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse.”
U.S.S.G. § 3E1.1, cmt. n.2. There is no merit to Brugman’s
argument that he is entitled to a reduction for acceptance of
responsibility.
V.
For the reasons stated above, we AFFIRM Brugman’s conviction
and sentence.
AFFIRMED.
20
United States v. Brugman
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-03-26
Citations: 364 F.3d 613
Copy Citations