United States v. Morris

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-11456
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE DEAN MORRIS,

Defendant-Appellant.

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Appeal from the United States District Court for the
Northern District of Texas
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December 19, 1997

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents issues involving application of the

Sentencing Guidelines with respect to aggravated assaults and

enhancements for the use of a dangerous weapon. Eddie Dean Morris

was convicted for assaulting a federal agent with a deadly weapon

(Morris rammed the agent’s automobile with his truck), while the

agent was engaged in his official duties, in violation of 18 U.S.C.

§ 111. At sentencing, the district court applied the aggravated

assault Guidelines to determine Morris’s base offense level and

applied an enhancement for his use of a dangerous weapon. The

district court also enhanced Morris’s sentence for obstructing

justice by committing perjury. Morris appeals only his sentence.
He challenges the district court’s factual findings that he

committed perjury and that he assaulted federal agents with the

intent to inflict bodily harm. Morris further contends that, by

enhancing his sentence for the use of a dangerous weapon, the

district court engaged in impermissible double counting. For the

reasons that follow, we affirm.

I

Eddie Dean Morris was wanted for unlawful flight to avoid

prosecution for nonpayment of child support. On May 13, 1996,

agents of the Federal Bureau of Investigation (“FBI”) received

information that Morris was in the Alley Cat’s Bingo Hall in

Dallas, Texas. FBI agents were dispatched to the bingo hall to

arrest Morris. They waited outside the bingo hall and watched

Morris’s vehicle, a Chevrolet Blazer. Eventually, Morris and a

female companion left the bingo hall and went to his car. When

Morris drove out of the parking lot, the agents followed. They

were joined by two marked Dallas police squad cars, who turned on

their red emergency lights and followed Morris into the parking lot

of a 7-Eleven convenience store. John Skillestad, an FBI agent,

also drove into the 7-Eleven parking lot and stopped his vehicle

five to ten feet from the right front fender of Morris’s Blazer.

Notwithstanding, Morris drove off suddenly, taking an immediate

left turn out of the parking lot. The agents followed. During a

high-speed chase, Morris swerved his Blazer into Agent Skillestad’s

vehicle, causing the agent to veer off the road into a parking lot

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and towards a concrete embankment. Agent Skillestad crashed

through a tire stop, went over the concrete embankment, and dropped

almost three feet to the ground. Uninjured, Agent Skillestad

rejoined the chase, which ended with Morris’s capture and arrest.

A jury convicted Morris of assaulting a federal agent with a

deadly weapon, while the agent was engaged in his official duties,

in violation of 18 U.S.C. § 111.1 At the sentencing hearing that

followed, the district court overruled Morris’s objections to the

presentence report and assigned him an offense level of 26. In

arriving at this figure, the district court began with a base

offense level of fifteen for an aggravated assault. The court then

added a four-level enhancement for otherwise using a dangerous

weapon, a three-level enhancement because the assault was motivated

by the agent’s status as a government official, a two-level

enhancement for obstruction of justice, and another two-level

enhancement for recklessly creating a substantial risk of death or

serious bodily injury in the course of fleeing from a law

enforcement officer. The total offense level of 26, combined with

1
The statute provides:

Whoever forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any person ...
in or on account of the performance of his official
duties, shall be fined not more than $5,000 or imprisoned
not more than three years, or both.
Whoever, in the commission of any such acts uses a
deadly or dangerous weapon, shall be fined not more than
$10,000 or imprisoned not more than ten years, or both.

18 U.S.C. § 111.

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Morris’s criminal history category of I, yielded a sentencing range

of 63 to 78 months. The district court sentenced Morris to a

70-month term of imprisonment, a three-year term of supervised

release, and $8,702.38 in restitution. Morris timely filed his

notice of appeal, and this appeal followed.

II

Morris challenges his sentence imposed under the Sentencing

Guidelines. This court will uphold the sentence imposed so long as

it is the product of a correct application of the Guidelines to

factual findings that are not clearly erroneous. United States v.

Jackson, 22 F.3d 583, 584 (5th Cir. 1994). Accordingly, “[w]e

review factual findings made by a district court for sentencing

purposes under the clearly erroneous standard, and review the

district court’s legal application of the Guidelines de novo.”

United States v. Asibor, 109 F.3d 1023, 1040 (5th Cir. 1997).

III

A

Morris first argues that the district court erred in applying

U.S.S.G. § 2A2.2, entitled “Aggravated Assault.” Morris maintains

that the evidence did not support a finding that he intended to do

bodily harm to Agent Skillestad. The commentary to section 2A2.2

defines aggravated assault, in relevant part, as “a felonious

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assault that involved . . . a dangerous weapon with intent to do

bodily harm (i.e., not merely to frighten).” See id., comment,

(n.1). Morris does not dispute the characterization of his Blazer

as a dangerous weapon under the Guidelines. Thus, the question is

whether the district court erred when it found that Morris intended

to cause bodily harm when he swerved his Blazer into Agent

Skillestad’s vehicle.

A number of law enforcement officers testified at trial that

Morris intentionally rammed his Blazer into Agent Skillestad’s

vehicle hard enough to cause it to leave the road. Although Agent

Skillestad was not injured, the intent to do bodily harm could be

inferred from Morris’s conduct. See United States v. Garcia, 34

F.3d 6, 11 (1st Cir. 1994) (the defendant’s conduct of driving his

car directly at a law enforcement officer supported inference that

the defendant intended to cause serious bodily harm). The district

court, therefore, did not clearly err in concluding that Morris

committed an aggravated assault under the Guidelines and sentencing

him accordingly.

B

Morris next argues that, in the event we should find the

evidence sufficient to support the conclusion that he used a

dangerous weapon with the intent to do bodily harm by ramming Agent

Skillestad’s automobile, the district court erred when it enhanced

his base offense level under section 2A2.2(b)(2)(B) of the

Guidelines for “otherwise us[ing]” a dangerous weapon in the

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commission of the aggravated assault.2 He contends that because

his vehicle, ordinarily a nondangerous object, became a dangerous

weapon only when he used it to ram Agent Skillestad’s car, the

enhancement for “otherwise using a dangerous weapon” was based on

the identical conduct that justified his sentence for aggravated

assault. Morris maintains, therefore, that he did not otherwise

use a dangerous weapon and, further, that applying this enhancement

to his conduct resulted in double counting.

In support of his position, Morris points us to the Second

Circuit’s decision in United States v. Hudson, 972 F.2d 504 (2d

Cir. 1992), where the court held that “the Guidelines proscribe

impermissible double counting where it is the use of an ordinary

object as dangerous weapon that transforms a ‘minor’ assault into

2
Sentences involving an assault with a dangerous weapon are
subject to the following enhancement scheme:

(A) If a firearm was discharged, increase by 5 levels;
(B) if a dangerous weapon (including a firearm) was
otherwise used, increase by 4 levels; (C) if a dangerous
weapon (including a firearm) was brandished or its use
was threatened, increase by 3 levels.

U.S.S.G. § 2A2.2.

The commentary to the “General Application Principles” section of
the Guidelines further explains:

“Otherwise used” with reference to a dangerous weapon
(including a firearm) means that the conduct did not
amount to the discharge of a firearm but was more than
brandishing, displaying, or possessing a firearm or other
dangerous weapon.

Id. § 1B1.1, comment, (n.1(g)).

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an ‘aggravated’ one.” Id. at 506. The court reasoned that, were

it to hold otherwise, “aggravated assault with a [nondangerous

object] will always lead to a three or four-level enhancement,

because mere possession of a [nondangerous object] during an

assault will not convert an ordinary assault into an aggravated

one.” Id. at 507.3

We find it unnecessary to determine whether the Guidelines

recognize a distinction between objects that are “inherently

dangerous” weapons and ordinary objects that become dangerous only

through their use.4 Even were we to adopt the Second Circuit’s

rationale, application of an enhancement for otherwise using a

dangerous weapon would not constitute double counting in this case.

Assuming a particular use is essential to transform an ordinary

object into a dangerous weapon, Morris used his Blazer in two

3
The Second Circuit’s position in this respect is at odds with
the views of every other circuit that has considered whether the
use of an ordinarily nondangerous object during an assault, thereby
making the object a dangerous weapon and turning a minor assault
into an aggravated one, precludes an enhancement for otherwise
using a dangerous weapon in the course of the same assault. See
United States v. Johnston, 107 F.3d 200, 211-12 (3d Cir. 1997);
United States v. Dunnaway, 88 F.3d 617, 619 (8th Cir. 1996); United
States v. Sorenson, 58 F.3d 1154, 1161 (7th Cir. 1995); Garcia, 34
F.3d at 11-12; United States v. Reese, 2 F.3d 870, 896 (9th Cir.
1993); United States v. Williams, 954 F.2d 204, 206-08 (4th Cir.
1992).
4
The commentary to § 1B1.1 defines a “dangerous weapon” merely
as “an instrument capable of inflicting death or serious bodily
injury.” U.S.S.G. § 1B1.1, comment. (n.1(d)) (emphasis added).
Many ordinary objects, including automobiles, have the capacity to
inflict death or serious bodily injury. The Guidelines simply are
not clear whether the use of such objects in a particular way is
necessary to classify them as dangerous weapons.

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separate ways during the course of this criminal episode.5 First,

he rammed Agent Skillestad’s vehicle. Second, he engaged federal

agents in a reckless, high-speed chase. By ramming Agent

Skillestad’s vehicle with his Blazer, Morris clearly rendered the

Blazer a dangerous weapon and committed an assault with a dangerous

weapon in this case. Fleeing from law enforcement authorities by

driving the Blazer recklessly and at a high rate of speed to escape

capture constituted another dangerous, life-threatening use of the

vehicle--which already had become a dangerous weapon in the course

of this criminal event. Consequently, this second dangerous use

justifies the enhancement for otherwise using a dangerous weapon.

In terms of the Guidelines, it involves further dangerous use of

the Blazer that was greater than mere display or possession. See

U.S.S.G. § 1B1.1, comment, (n.1(g)) (defining “otherwise used” to

mean conduct less than discharging a firearm, but more than

displaying or possessing a dangerous weapon). Thus, no double

counting resulted from application of the Sentencing Guidelines to

this set of facts.

5
The degree to which a dangerous weapon is involved in the
assault is a “Specific Offense Characteristic” of an aggravated
assault under section 2A2.2(b). The Guidelines provide that, in
determining the existence of specific offense characteristics
(e.g., whether a dangerous weapon is “otherwise used” during an
aggravated assault), the court is to consider “all acts and
omissions committed . . . by the defendant . . . that occurred
during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection
or responsibility for that offense.” § 1B1.3(a)(1).

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 Nevertheless, even if application of the enhancement at issue

constituted double counting, we have recognized that the sentencing

guidelines do not prohibit all double counting. United States v.

Box, 50 F.3d 345, 359 (5th Cir.), cert. denied, ___ U.S. ___, 116

S.Ct. 309, 133 L.Ed.2d 213 (1995); United States v. Godfrey, 25

F.3d 263, 264 (5th Cir.), cert. denied, 513 U.S. 965, 115 S.Ct.

429, 130 L.Ed.2d 342 (1994). Rather, double counting is prohibited

only if the particular guidelines at issue forbid it. Box, 50 F.3d

at 359. Section 2A2.2 does not expressly prohibit the type of

double counting alleged by Morris. Accordingly, the district court

did not err by applying a four-point enhancement for “otherwise

us[ing]” a dangerous weapon in this case.

C

Finally, Morris argues that the district court clearly erred

by adding two levels to his base offense level for obstruction of

justice. Section 3C1.1 of the Sentencing Guidelines provides for

a two-level enhancement “[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 ....” U.S.S.G. § 3C1.1. If the district court

finds that the defendant committed perjury at trial, this

enhancement is required. See United States v. Dunnigan, 507 U.S.

87, 98, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); United States v.

Humphrey, 7 F.3d 1186, 1189 (5th Cir. 1993).

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 Here, the district court found that “Morris was untruthful at

trial with respect to material matters in this case.” Numerous

witnesses had testified that Morris deliberately rammed his Blazer

into Agent Skillestad’s vehicle. Nonetheless, Morris testified

that he did not deliberately swerve his vehicle. Because the

record supports the district court’s finding that Morris committed

perjury, the court’s imposition of a two-level enhancement for

obstruction of justice was not clearly erroneous.

IV

For the foregoing reasons, the district court’s calculation of

Morris’s sentence is

A F F I R M E D.

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