United States v. Garcia

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1598

UNITED STATES,

Appellee,

v.

EDUARDO GARCIA,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Randy Olen, with whom John M. Cicilline, was on brief for

appellant.
Margaret E. Curran, Assistant United States Attorney, with

whom Edwin J. Gale, United States Attorney, and Gerard B.

Sullivan, Assistant United States Attorney, were on brief for

appellee.

September 7, 1994

TORRUELLA, Circuit Judge. Defendant-appellant Eduardo

Garc a pled guilty to one charge of assault on a federal officer

in violation of 18 U.S.C. 111(a)(1) and (b). Using the 1992

version of the Sentencing Guidelines, the district court

sentenced Garc a to 41 months imprisonment. Garc a appeals his

sentence, claiming that the district court erred (1) in selecting

the aggravated assault sentencing guidelines; (2) in imposing a

four-level specific offense characteristic adjustment for using a

dangerous weapon; (3) in imposing a two-level enhancement for

obstruction of justice; and (4) in assessing a three-level

official victim enhancement. We affirm the district court's

sentence.

BACKGROUND

On September 15, 1992, Alcohol Tobacco and Firearms

Special Agent John Lennon and Detectives Francisco Col n and

Robert Drohan of the Providence Police Department's Special

Investigations Bureau were on their way to interview a witness

when Detective Drohan observed a silver Toyota occupied by two

males in the parking lot of a McDonald's restaurant on Broad

Street in Providence, Rhode Island. Because neither man appeared

to have any food nor appeared to be ordering any, and because the

area was a known drug trafficking location, Detective Drohan

suspected the two men were loitering for the purpose of making a

narcotics purchase.

Agent Lennon and the detectives placed the vehicle and

its occupants under surveillance. After a short period of time,

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a black Toyota operated by Garc a parked alongside the silver

Toyota. Garc a approached the occupants of the silver Toyota, who

were later identified as Raymond Ladou, the driver, and Mark

McMullen, the passenger. Garc a then got back in his car and

drove the black Toyota out of the McDonald's parking lot followed

by Ladou and McMullen in the silver Toyota.

Agent Lennon and the detectives followed the cars to

Indiana Avenue. They requested a marked cruiser to back them up,

and John Mellor, a uniformed policeman, operating a marked

cruiser, responded to the request for assistance. Agent Lennon

and the detectives drove past both suspect vehicles and observed

McMullen in Garc a's car. McMullen and Garc a were both looking

down and appeared to be examining something in their laps.

Detective Drohan and Officer Mellor used the unmarked

police car and the marked cruiser to block the silver Toyota and

the street. Agent Lennon and the detectives approached Garc a's

car, displaying their weapons and identification, and they yelled

"police." When Detective Col n reached the driver's side, he saw

numerous packages of what he believed to be heroin on Garc a's

lap. Garc a drove off suddenly with McMullen in the car.

Garc a turned his car toward Detective Col n who jumped

out of the way. Next, Garc a directed the car at Agent Lennon

who had to leap onto a parked car to avoid being struck. Garc a

then drove at Detective Drohan and subsequently mounted the curb

to get around the marked police cruiser. Patrolman Mellor and

Detectives Col n and Drohan shot at Garc a's vehicle. Despite a

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flattened tire, Garc a continued to flee. Agent Lennon took

Ladou into custody while Detectives Col n and Drohan and

additional marked cruisers pursued Garc a and McMullen.

According to the detectives, during the pursuit, Garc a threw an

undetermined amount of money and heroin out of the window.

Garc a and McMullen were apprehended after they abandoned the

vehicle. A subsequent search along the attempted escape route

yielded $865 in cash but no drugs.

Ladou gave a written statement to the police in which

he stated that McMullen had paid him $40 to drive him to

Providence, Rhode Island, and that McMullen told him "that a guy

was going to come in a black car, a Puerto Rican and that he was

going to do a deal." Ladou also stated that although McMullen

told him that he was going to Providence to buy a car, Ladou

suspected that McMullen was going to participate in a heroin

transaction because he knew McMullen was a heroin user.

McMullen also gave a written statement to the police in

which he admitted that he came to Providence to buy heroin.

McMullen described his supplier in this way, "there is a guy I

don't know his name, I go to the McDonald's and I punch in a

beeper number . . . and then a code number . . . then the number

of bundles you want. A while later the guy shows up in a small

black car, and brings you the heroin." McMullen knew Garc a by

the pseudonym, "Joseph."

The government sought to subpoena McMullen for the

grand jury investigation of this matter. McMullen, however,

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avoided service of the subpoena. Authorities later found

McMullen, but he was unwilling to cooperate with the

investigation.

Pursuant to a written plea agreement with the

government, Garc a pleaded guilty to assault on a federal officer

and using a dangerous weapon in violation of 18 U.S.C.

111(a)(1) and (b), and in return, the government dismissed the

charge of attempting to distribute heroin in violation of 21

U.S.C. 841(A)(1).

The court adopted the pre-sentencing report's ("PSR")

calculation of Garc a's sentence as follows. Because the charge

against Garc a invoked the enhanced penalty of 18 U.S.C.

111(b), for assaults involving the use of a deadly or dangerous

weapon, the PSR selected the aggravated assault guideline,

U.S.S.G. 2A2.2. Section 2A2 sets a base offense level of

fifteen. Following the express language of 2A2.2(b) of the

Guidelines, the PSR added the four-level enhancement because a

dangerous weapon (the car) was used in the assault.

The PSR noted that the victim of the 18 U.S.C. 111

assault was Agent Lennon, a federal agent. It further noted that

the facts as stated in the prosecution version established that

at the time of the offense, Garc a was aware that the victim was

a law enforcement officer and that the assault was motivated by

the victim's status as a law enforcement officer. Accordingly,

the PSR added the three-level, official victim adjustment

provided by 3A1.2(a).

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The PSR also added a two-level adjustment for

obstruction of justice under 3C1.1. It found that by throwing

heroin out the window during his attempt to avoid arrest, Garc a

had materially hindered the official investigation and

prosecution. The PSR concluded that as a result of Garc a's

action, the government was unable to prove the drug charges.

Subtracting three levels for acceptance of

responsibility pursuant to 3E1.1, the probation officer arrived

at a total offense level of 21. Because Garc a had a criminal

history category of I, his sentence range was 37-46 months.

The district court adopted the recommendations of the

PSR in calculating Garc a's sentence. Garc a contends that the

district court made several errors in calculating his offense

level for sentencing. The issues addressed in this appeal were

the subject of objections Garc a filed to the PSR which his

counsel reiterated at sentencing and which the district court did

not find persuasive.

STANDARD OF REVIEW

We review the district court's findings of fact for

clear error and accord due deference to the court's application

of the Sentencing Guidelines to the facts. 18 U.S.C. 3742(e);

United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990). Our

review of questions of legal interpretation of the Guidelines is

de novo. United States v. Phillips, 952 F.2d 591, 594 (1st Cir.

1991), cert. denied, 113 S. Ct. 113 (1992).

DISCUSSION

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The district court applied U.S.S.G 2A2.2, entitled

"Aggravated Assault," as the applicable guidelines section to

determine Garc a's offense conduct.1

The commentary to 2A2.2 defines aggravated assault,

in relevant part, as "a felonious assault that involved . . . a

dangerous weapon with intent to do bodily harm (i.e., not merely

to frighten)." U.S.S.G. 2A2.2, cmt., note 1. Hence, in order

to apply 2A2.2, the aggravated assault provision, the district

court was required to find that when Garc a drove his car at the

officers, he did so with the intent to cause bodily harm. Garc a

does not dispute that his automobile qualified as a dangerous

weapon. Rather, Garc a contends that he did not have the intent

required by 2A2.2.

The district court's finding of intent is a factual

finding which we review for clear error. United States v.

Wheelwright, 918 F.2d 226, 227-28 (1st Cir. 1990). Where the

undisputed facts support more than one plausible inference, the

sentencing court's choice among supportable alternatives cannot

1 Garc a contends that the court should not have applied
U.S.S.G. 2A2.2. He contends that the court erred by
classifying his conduct as aggravated assault and that the proper
guideline for his offense conduct is 2A2.4, entitled
"Obstructing or Impeding Officers."

Garc a did not argue in the district court that 2A2.4 should
apply. Garc a therefore waived this argument. United States v.

Ortiz, 966 F.2d 707, 717 (1st Cir. 1992) (citing United States v.

Dietz, 950 F.2d 50, 55 (1st Cir. 1991) for the proposition that

"in [the] criminal sentencing context, arguments not addressed to
the trial court at the appropriate time are deemed to be
abandoned") (internal citation omitted), cert. denied, 113 S.

Ct. 1005 (1993).

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be clearly erroneous. United States v. Newman, 982 F.2d 665,

671-72 (1st Cir. 1992), cert. denied, 114 S. Ct. 59 (1993).

Garc a contends that his statement of acceptance of

responsibility negates the possibility that he intended to cause

bodily harm to Agent Lennon. The Probation Department adopted

the following statement by Garc a when it made its

recommendations in the PSR:

I, Eduardo Garc a, hereby accept
responsibility for my actions on
September 15, 1992.

I was on Indiana Avenue when a car pulled
in front of mine and a bunch of men
jumped out with guns. I then drove my
car in an attempt to get away from this
area. During this time I drove my car at
a person which I now know was Special
Agent Lennon from the Bureau of Alcohol,
Tobacco and Firearms.

I drove at the agent in an attempt to get
out of there. I never intended to hit

him with my car. It was my intention to

scare him so I could leave.

(emphasis added).

Based on this statement, the Probation Department

recommended and the court granted a three-level decrease of

Garc a's offense level pursuant to U.S.S.G. 3E1.1, "Acceptance

of Responsibility." Garc a contends that his statement was

implicitly accepted as truthful by the Probation Department, the

Government, and the court when the Probation Department adopted

the statement made by Garc a into the PSR and the court granted

Garc a a reduction in sentence based on 3E1.1. Garc a

therefore argues that his statement shows that he lacked the

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necessary intent to do bodily harm required for an application of

2A2.2.

United States Sentencing Guidelines 3E1.1, cmt., note

1(a), provides that considerations in determining whether a

defendant qualifies for the Acceptance of Responsibility

reduction include "truthfully admitting the conduct comprising

the offense(s) of conviction, and truthfully admitting or not

falsely denying any additional relevant conduct . . . ."

We do not believe that, by granting Garc a a reduction

for acceptance of responsibility, the court was required to

accept Garc a's statement that he lacked the intent to cause

bodily harm as conclusive. The court may have disregarded

Garc a's statement as a self-serving prevarication that was

insufficient to negate stronger inferences drawn from the record

which suggested that Garc a did in fact have the requisite

intent.

At sentencing, the court concluded:

It seems to me that under these
circumstances it is not possible to come
to the conclusion that what the Defendant
is telling us at this point in time is
actually what was on his mind at the time
the incident occurred, that he certainly
didn't want to strike the officers but if
he had to he was prepared to do it.
That's enough, it seems to me, to make
this an aggravated assault.

The district court found that Garc a had the requisite

intent to cause bodily harm and adjusted the offense level

accordingly. Garc a aimed his car straight at Agent Lennon and

each of the officers in turn. Agent Lennon was forced to jump

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onto a parked car to avoid being hit. This certainly supported

the inference that Garc a intended to cause serious bodily harm.

The district court did not abuse its discretion in concluding

that Garc a had such an intent.

Alternatively, Garc a contends that the district court

engaged in impermissible "double counting" because the four-level

increase in the base offense level under 2A2.2(b)(2)(B) for use

of a dangerous weapon was based on the same use of a dangerous

weapon that formed the predicate for finding the underlying

offense an "aggravated assault" with a base offense level of 15

under U.S.S.G. 2A2.2, rather than a "minor assault" that would

have had a base offense level of 6 under U.S.S.G. 2A2.3.

As we noted in Newman, 982 F.2d at 673 n.8, the courts

of appeals which have addressed this issue have reached different

conclusions. See United States v. Williams, 954 F.2d 204, 206-08

(4th Cir. 1992) ("double counting required"); but see United

States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (expressly

disagreeing with Williams). In Newman, we addressed the

analogous issue of whether a defendant's base offense level can

be increased pursuant to 2A2.2(b)(3)(B) for causing "serious

bodily injury," notwithstanding the fact that the same factor

formed the predicate for finding the underlying offense of

interference with civil rights under color of law, see U.S.S.G.

2H1.4(a)(2), to be an aggravated assault under U.S.S.G. 2A2.2.

We concluded that where a sentencing court calculated a

defendant's base offense level in exact accordance with the plain

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language of the applicable sentencing guidelines, and the

guidelines addressing the crime of conviction reflect that they

were drafted with the excesses of "double counting" clearly in

mind, the sentencing court did not err in increasing the

defendant's base offense level pursuant to 2A2.2(b)(3)(B). See

Newman, 982 F.2d at 672-75. In United States v. Reese, 2 F.3d

870 (9th Cir. 1993), cert. denied, 114 S. Ct. 928 (1994), the

Ninth Circuit relied on Newman when it rejected a double counting

challenge by defendants whose sentences were enhanced under

2A2.2(b) for use of a weapon and infliction of bodily injury

after they were convicted of federal civil rights crimes. Reese,

2 F.3d at 896.

We do not believe that the court's enhancement of

Garc a's sentence under 2A2.2(b)(2)(B) for use of an inherently

dangerous weapon constitutes impermissible double counting.

Rather, we agree with the Reese court's interpretation of this

situation:

[T]he use of a weapon transform[s] . . .
[the] offense from a minor assault to an
aggravated-assault-in-which-a-dangerous-
weapon-was-otherwise-used. That we use a
single sentencing factor "twice" to trace
the effects of this transformation (first
to distinguish minor from aggravated
assaults, then to distinguish more and
less culpable aggravated assaults) is
merely an accidental by-product of the
mechanics of applying the Guidelines. It
is not impermissible double counting.

Reese, 2 F.3d at 896 n.2 (criticizing Hudson).

Garc a next contends that the district court erred in

increasing his base offense level by two levels pursuant to

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U.S.S.G. 3C1.1, entitled "Obstructing or Impeding the

Administration of Justice."

United States Sentencing Guidelines 3C1.1 states, in

pertinent part, that a two-level enhancement is warranted "[i]f

the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant

offense." The commentary includes a non-exhaustive list of types

of conduct to which the enhancement applies. One of the examples

listed is "destroying or concealing . . . evidence that is

material to an official investigation or judicial proceeding . .

. or attempting to do so." U.S.S.G. 3C1.1, cmt., note 3(d).

Garc a argues that the record did not support the

finding that he threw any heroin out the car window while being

pursued by the arresting officers. We disagree.

The district court specifically found that Garc a threw

heroin out the window of his car. The following evidence

supports this finding: 1) Detective Col n, an experienced

narcotics detective, observed what he believed to be heroin in

Garc a's lap; 2) Ladou's written statement to the police

acknowledging that McMullen had paid him to drive him from New

Bedford, Massachusetts, to Providence, Rhode Island, to "do a

deal" with a Puerto Rican male in a black car; and 3) it was

undisputed that Garc a threw something, including cash, from the

car as he fled from the police. Additionally, the record supports

the inference that Garc a was McMullen's heroin source and that

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McMullen had purchased heroin from Garc a in the past. The

court's findings that Garc a threw a quantity of heroin out the

window was not clearly erroneous.

Garc a next contends that even if the record did

support such a finding, 3C1.1 expressly excludes his conduct

from the scope of the enhancement. He maintains that his conduct

was "a spontaneous or visceral or reflexive response occurring at

the point arrest [became] imminent" to which 3C1.1 does not

apply. See United States v. Sykes, 4 F.3d 697, 699 (8th Cir.

1993).

Garc a incorrectly assumes that the spontaneity of his

response will shield him from the two-level enhancement for

obstruction of justice. The comment to 3C1.1 provides that

where the conduct "occurred contemporaneously with arrest (e.g.,

attempting to swallow or throw away a controlled substance), it

shall not, standing alone, be sufficient to warrant an adjustment

for obstruction unless it resulted in a material hindrance to the

official investigation or prosecution of the instant offense or

the sentencing of the offender." U.S.S.G. 3C1.1, cmt., note

3(d). Therefore, a district court properly applies the

enhancement where it properly concludes that a defendant's

actions materially hinder an investigation, prosecution, or

sentencing.

The drugs that Garc a allegedly tossed out the window

were never recovered. The record permits the inference that the

absence of this evidence hindered the prosecution's ability to

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pursue a conviction on the drug count after its main witness,

McMullen, refused to cooperate with the prosecution. Under these

circumstances, the district court did not err in finding that the

prosecution was materially hindered by Garc a's actions.

As a final challenge, Garc a contends that the district

court erred in increasing his base offense level by three levels

pursuant to U.S.S.G 3A1.2, entitled "Official Victim." That

section provides for a 3-level increase if:

(a) the victim was a government officer
or employee; a former government officer
or employee; or a member of the immediate
family of any of the above, and the
offense of conviction was motivated by
such status; or
(b) during the course of the offense or
immediate flight therefrom, the defendant
or a person for whose conduct the
defendant is otherwise accountable,
knowing or having reasonable cause to
believe that a person was a law
enforcement or corrections officer,
assaulted such officer in a manner
creating a substantial risk of serious
bodily injury.

U.S.S.G. 3A1.2.

Garc a contends that in order for the increase under

3A1.2 to be properly assessed, the assault must have been

either motivated by the officer's status, or conducted in a

manner creating a substantial risk of serious bodily injury.

Garc a argues that neither of these circumstances have been shown

to be present in this case. Contrary to Garc a's contentions, we

find that the record supports a finding that Garc a's actions

were both motivated by the officer's status and conducted in a

manner creating a substantial risk of serious bodily injury.

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The district court found that in aiming his car at

the officers, Garc a was attempting to evade arrest. The

district court stated:

That the evidence is that the police
approached the vehicle and announced that
they were the police. That under the
circumstances it seems quite clear that
the Defendant was aware that the people
who were seeking to take him into custody
were police officers and, therefore, that
objection is overruled.

The record supports the court's finding. It indicates

that Garc a knew that the police officers were approaching him.

As they approached the car, the agent and the officers displayed

their identification and weapons and yelled, "police." One of

the officers was in uniform and used his marked cruiser, with its

emergency lights activated, to block Garc a's egress.

Additionally, the record supports the conclusion that

Garc a's conduct created a substantial risk of bodily injury.

Agent Lennon had to jump out of the way to avoid being struck by

Garc a's car. Garc a's conduct also gave rise to a police chase

which motivated the police officers to fire their weapons,

creating an additional substantial risk. These circumstances

warranted application of the official victim enhancement. In so

finding, the district court did not abuse its discretion.

Affirmed.

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