United States v. Page

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1835

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

TAD A. PAGE,

Defendant, Appellant.

No. 95-1836

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ALLEN J. ADAMS,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Aldrich, Senior Circuit Judge,

and Selya, Circuit Judge.

R. Scott Miller, Jr., by appointment of the Court, for Allen J.

Adams.
Peter Clifford, by appointment of the Court, for Tad A. Page.

Rebecca K. Troth with whom Jessica Dunsay Silver, Deval L.

Patrick, Assistant Attorney General, Jay P. McCloskey, United States

Attorney, and John S. Gleason III, Assistant United States Attorney,

were on brief for appellee.

May 24, 1996

ALDRICH, Senior Circuit Judge. Defendants Allen

Adams and Tad Page pled guilty to three counts of conspiracy

and interference with the civil rights of others in September

of 1992. They now object to virtually every step of the

court's application of the Sentencing Guidelines and

underlying statutes to their offenses. We affirm.

According to pre-sentence reports accepted by the

court, in the early hours of September 19, 1992, Adams

accosted Ruben Gonzales, Oscar Luna and Emiliano Valenzuela

as they attempted to enter a convenience store, calling them

"f Mexicans" who should go back to Mexico where they

"belonged," and offering to send them back in a body bag.

Page joined Adams, who grabbed Page's handgun from inside his

truck, stuck it to Gonzales' temple and threatened to "blow

his head off." An employee called the police, whereupon

Gonzales and his companions drove off with a fourth friend

who had remained in their car. Page jumped in his truck and

followed, with Adams in the passenger seat and the gun

between them, and two cohorts riding in back. Two other

carloads of their friends joined the chase. Driving about 75

miles an hour, Page pulled up behind Gonzales' car, fired

seven shots into the air, and at Adams' urging, two more

directly into the back of the vehicle and two at the ground

behind it. One bullet struck Luna in the arm, another lodged

in the headrest behind Gonzales' head. Page then slowed and

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turned back. Luna was taken to a hospital shortly, treated

for a gunshot wound to his right upper arm and released

approximately 90 minutes later. He lost use of his arm and

was unable to work for three weeks, and continued to suffer

residual pain for some time.

Pursuant to a plea agreement, Adams and Page each

pled guilty to conspiracy to hinder others in the free

exercise of federally secured rights, in violation of 18

U.S.C. 241 (count I), racially motivated interference with

Gonzales' use of a public accommodation, in violation of 18

U.S.C. 245(b)(2)(F) and 2 (count II), and interference

with Luna's use of same, in violation of 18 U.S.C.

245(b)(4)(A) and 2 (count IV). In return, the government

dismissed the remaining counts charging interference with the

rights of the two other men, and use of a firearm in

connection with a crime of violence.

Defendants were sentenced July 21, 1995. The court

made the same sentencing calculations for both defendants, to

which neither objected. Applying USSG 2H1.3(a)(3),1 the

court determined that the underlying offense for both counts

II and IV was "aggravated assault," having determined that

both involved use of "a dangerous weapon with intent to do

bodily harm." See 2A2.2 and comment. (n.1). Allowing

1. Section 2H1.3 has been deleted by consolidation with
2H1.1, effective Nov. 1, 1995, but was still operative at
the time of defendants' sentencing.

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enhancements for Luna's injury, 2A2.2(b)(3)(B), discharge of

a firearm, 2A2.2(b)(2)(A), and obstruction of justice,

3C1.1, it arrived at a combined offense level of 30,

deducted three for acceptance of responsibility, 3E1.1, for

a total offense level of 27. Page, with no prior

convictions, faced an imprisonment range of 70 to 87 months,

and Adams, who has a record, faced 78 to 97 months. The

court imposed 70 months on Page, and 88 on Adams, and

assessed each $370 in restitution.

The bulk of defendants' appeal proceeds on the

mistaken notion that the aggravated assault provision,

2A2.2, applies only if the victim suffered "serious bodily

injury," which they contend was not the case for either

count. Serious bodily injury, however, is only one of

several alternative bases for applying the aggravated assault

provision:

"Aggravated assault" means a felonious
assault that involved (a) a dangerous
weapon with intent to do bodily harm
(i.e., not merely to frighten), or (b)

serious bodily injury, or (c) intent to

commit another felony.

USSG 2A2.2, comment. (n.1). (Emphasis added.) Thus simple

intent to do bodily harm of any kind, without regard to the

degree actually suffered, if any,2 may support a finding of

2. Under 2A2.2, degree of bodily injury is relevant only to
determining how many levels to add -- two for "bodily
injury," four for "serious bodily injury," and three for
something in between. See 2A2.2(b)(3). Defendants also

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aggravated assault and application of the far heftier base

offense level and enhancements than provided for under the

"minor assault" guideline that defendants would prefer the

court to apply. The court unassailably found that firing

multiple gunshots at an occupied and moving vehicle "is bound

to result in hitting a tire, gas tank, person, something that

can only be calculated to end up in bodily harm," and

therefore that both counts II and IV fit the aggravated

assault guideline. Defendants' effort to void this finding

by pointing out that the bullet that actually struck Luna was

one that had been aimed at the ground, and simply ricocheted

upward into the vehicle, does not advance their claim.

Neither the court nor the parties focussed,

however, on 2A2.2's additional requirement that the assault

be "felonious." The argument that count II, resulting in no

injury to Gonzales, is not "felonious" for the purpose of

applying 2A2.2 was not specifically articulated to the

district court. Because we find it was at least implicitly

raised and pursued by defendants' multiple efforts to attack

the propriety of applying 2A2.2 to count II, and the

government addressed the issue without contending review was

foreclosed, we reach it despite perhaps imperfect

dispute the court's addition of four levels under this
provision, which we address post.

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preservation below.3

Our first question is, quite simply, what does the

guideline mean by "felonious?" Although commentary to 2A2.2

defines a host of terms and phrases, no definition for felony

or "felonious" is provided or referenced. Prior to enactment

of the Guidelines a felony had long been defined as "any

offense punishable by death or imprisonment for a term

exceeding one year." 18 U.S.C. 1 (June 25, 1948), repealed

by Sentencing Reform Act of 1984, Pub.L. 98-473, Title II,

218(1)(1), 98 Stat. 2027 (repeal effective Nov. 1, 1987).

The Guidelines perhaps obviated the necessity of 1, but

nowhere refute or replace its felony definition. In fact, a

provision unrelated to 2A2.2 defines a felony precisely

according to the repealed statute. See USSG 4A1.2(o). An

intent to incorporate this pre-existing definition into the

Guidelines where appropriate thus seems clear. We conclude,

therefore, that "felonious," as used in 2A2.2, means

"punishable by death or a term of imprisonment exceeding one

year."

The penalty provision of 245(b) in force at the

3. We note that if count II cannot be considered an
aggravated assault, defendants' combined offense level would
be no more than 25, yielding a guideline range of 57-71
months for Page, and 63-78 for Adams, permitting sentences of
up to 13 and 15 months less than they received, respectively.
Cf. United States v. Newman, 982 F.2d 665, 672 (1st Cir.

1992), cert. denied, U.S. , 114 S.Ct. 59, 126 L.Ed.2d

28 (1993).

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time of the assaults provided that offenders

shall be fined not more than $1,000, or
imprisoned not more than one year, or
both; and if bodily injury results shall
be fined not more than $10,000, or
imprisoned not more than ten years, or
both; and if death results shall be
subject to imprisonment for any term of
years or for life.

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18 U.S.C. 245(b) (amended Sept. 13, 1994). Count II is

therefore felonious only if it resulted in bodily injury.4

Gonzales himself suffered none, thus count II qualifies only

if Luna's gunshot wound can be said to have resulted from

defendants' violation of Gonzales' rights as well as Luna's.

According to defendants, the problem with this is two-fold:

it unjustifiably stretches the language of 245(b) and,

because Luna's injury already sustains increase in the

applicable punishment for count IV, runs afoul of the

prohibition on multiple punishments contained in the double

jeopardy clause of the Constitution.

We find nothing in the statutory language to

support reading the penalty provision of 245(b) to permit

enhancement only in cases of bodily injury to the intended

victim of the particular offense. Nor is there anything

indicating an intent to restrict penalty enhancement to a

single count when multiple counts aimed at several

individuals end up causing but a single bodily injury.
4. There is no question that Luna's injury supports
enhancement for count IV.
First, it is plain from the structure of 245(b) that the

5. The Senate Judiciary Committee Report on the history of
penalty enhancement applies to each and every listed offense
the bill explained the graduated penalty provision as
follows:
that "results" in bodily injury, regardless of whether the

If no one is actually harmed, penalties

victim of the particular offense was the one injured.5
are limited to a $1,000 fine and 1 year
imprisonment; if bodily injury results,
the maximum penalties are a $10,000 fine
and 10 years imprisonment; and if death
results . . .

S. Rep. No. 721, 90th Cong., 2d Sess. (Nov. 2, 1967),
reprinted in 1968 U.S.C.C.A.N. 1837, 1846. (Emphasis added.)

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Second, the unqualified phrase, "if bodily injury results,"

unambiguously signifies that there is no safe haven for a

perpetrator of aggravated assault against many that happens

to result in bodily injury only to one. Cf. United States v.

Bass, 404 U.S. 336, 347-48 (1971). The court found that the

offense behavior underlying both counts included two bullets

aimed directly at the car -- that only Luna was physically

injured is immaterial to the conclusion that the violations

of both Luna's and Gonzales' civil rights each "resulted" in

the bodily injury sustained by Luna, rendering both counts

subject to penalty enhancement under 245(b). Count II is

therefore "felonious" for the purpose of applying USSG

2A2.2.

Defendants' claim that this reading

unconstitutionally subjects them to multiple punishments for

the same offense is also unavailing. There is no question

that the offenses in sub-sections (2)(F) and (4)(A) of

245(b), at least when committed against different

individuals, describe discrete and separately punishable

crimes, with higher sentences authorized for each offense

resulting in bodily injury (or death). The multiple

punishments prohibition of the double jeopardy clause "merely

prohibits a sentencing court from imposing a stiffer

punishment than the legislature intended." Catala Fonfrias

v. United States, 951 F.2d 423, 425-426 (1st Cir. 1991)

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(citing Missouri v. Hunter, 459 U.S. 359, 366 (1983)), cert.

denied, 506 U.S. 834 (1992). In Fonfrias, relying on both

text and legislative history, we held that a penalty

provision identical to 245(b)6 clearly contemplated that a

single "result" could be the consequence of more than one

covered crime, and consequently upheld imposition of two

consecutive life sentences for a single death resulting from

defendant's commission of two separate offenses. Id. at 426.

So, here, Luna's injury, the result of two separate offenses,

can support penalty enhancement for each without raising

double jeopardy concerns.

Defendants next complain of the court's refusal to

group all three counts together, which would have saved them

at least a two-level increase, see 3D1.4, but we are unable

to discern anything out of step in the court's rote

application of the grouping guideline. See USSG 3D1.2 and

comment. (n.5).

Defendants also attack the court's finding that

Luna's wound was a "serious bodily injury," which added four

to the offense level for count IV. See 2A2.2(b)(3)(B).

Adams asserts, first, error of law in the court's use of the

Guideline definition, because it does not follow Congress'

6. Section 245 was enacted along with the penalty
enhancement revisions to 241 and 242 considered in Catala

Fonfrias, via the same 1968 bill. See Pub.L. 90-284, Title

I, 101(a), Apr. 11, 1968, 82 Stat. 73.

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language used to define crimes and set minimum or maximum

sentences.7 There is no reason why the Guidelines may not

make their own classifications within the statutes, and hence

definitions which the courts must observe, so long as these

are not internally inconsistent or in violation of the

Constitution or a federal statute. See Stinson v. United

States, 508 U.S. 36, 38 (1993). We see no such problem here.

Second, both defendants claim clear error in the court's

factual determination that a bullet wound to the upper arm

which took the victim to the hospital (90 minutes) and left

him work-disabled for three weeks "constitute[d] the

impairment of a function of a bodily member," thereby falling

within the Guideline definition of what is serious. To

impair, generally, means to diminish or decrease. There is

no requirement of duration, nor does the Guideline definition

impose one with respect to this or any of the other examples

given. See Jarecki v. G.D. Searle, 367 U.S. 303, 307 (1961)

("The maxim noscitur a sociis, that a word is known by the

7. The Guidelines define "serious bodily injury" as:

injury involving extreme physical pain or
the impairment of a function of a bodily
member, organ, or mental faculty; or
requiring medical intervention such as
surgery, hospitalization, or physical
rehabilitation. As used in the
guidelines, the definition of this term
is somewhat different than that used in
various statutes.

USSG 1B1.1, comment. (n.1(j)).

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company it keeps, while not an inescapable rule, is often

wisely applied where a word is capable of many

meanings . . . ."). Whether impairment for a moment ranks as

serious, cf. United States v. Thompson, 60 F.3d 514, 516 (8th

Cir. 1995) (unconsciousness from assault is impairment of

mental facilities), three weeks disability should be

sufficient. Cf. United States v. Moore, 997 F.2d 30, 37 (5th

Cir. 1993) (bullet in leg, extremely painful, two weeks

disability; court did not designate which element was met);8

United States v. Reese, 2 F.3d 870, 879 (9th Cir. 1993)

(fractured elbow, arm in a sling), cert. denied, U.S.

, 114 S.Ct. 928, 127 L.Ed.2d 220 (1994). We discern no

clear error. 18 U.S.C. 3742(e); United States v. Garcia,

34 F.3d 6, 10 (1st Cir. 1994).

Defendants' remaining contentions have been

implicitly disposed of by the foregoing discussions, or do

not merit further reflection.

Affirmed.

8. We note that court held two hours hospital emergency room
did not constitute "hospitalization." 997 F.2d at 37.

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