Court: Court of Appeals for the First Circuit; September 7, 1994; Federal Appellate Court
Defendant-appellant Eduardo Garcia pled guilty to assaulting a federal officer under 18 U.S.C. § 111(a)(1) and (b) and was sentenced to 41 months in prison based on the 1992 Sentencing Guidelines. Garcia's appeal challenges the district court's decisions regarding the sentencing guidelines: (1) selection of aggravated assault guidelines, (2) a four-level adjustment for using a dangerous weapon, (3) a two-level enhancement for obstruction of justice, and (4) a three-level enhancement for an official victim. The appellate court affirmed the district court's sentencing.
On September 15, 1992, law enforcement officers, including ATF Special Agent John Lennon and Providence Detectives, observed Garcia and two others in a suspected drug trafficking scenario at a McDonald's parking lot. After Garcia's vehicle, a black Toyota, was observed interacting with a silver Toyota, law enforcement initiated a pursuit. Upon approach, Garcia drove his car at Detective Colón and Agent Lennon, narrowly missing them as he fled. During the pursuit, he discarded money and heroin from the vehicle before ultimately abandoning it with McMullen, a passenger, and fleeing on foot. A subsequent search found cash but no drugs, and a witness provided a statement suggesting McMullen was involved in a heroin transaction.
McMullen provided a written statement to the police admitting his intent to buy heroin in Providence, detailing his method of contacting a supplier through a beeper at a McDonald's. He referred to his supplier as "Joseph" (Garcia). Although the government sought to subpoena McMullen for a grand jury investigation, he evaded service and later refused to cooperate. Garcia, in a plea agreement, pleaded guilty to assaulting a federal officer and using a dangerous weapon under 18 U.S.C. §§ 111(a)(1) and (b), resulting in the dismissal of heroin distribution charges under 21 U.S.C. § 841(a)(1).
The court adopted the pre-sentencing report (PSR), which calculated Garcia's offense level based on the aggravated assault guideline U.S.S.G. § 2A2.2, setting a base offense level of fifteen. An enhancement of four levels was applied due to the use of a dangerous weapon (the car) during the assault on federal agent Lennon. The PSR further noted that Garcia was aware of the victim's status as a law enforcement officer, resulting in a three-level adjustment for official victim status under 3A1.2(a), and a two-level adjustment for obstruction of justice under 3C1.1 for discarding heroin to evade arrest. After subtracting three levels for acceptance of responsibility under 3E1.1, Garcia's total offense level was 21, placing his sentence range at 37 to 46 months, which the district court confirmed.
Garcia appealed, alleging errors in the offense level calculation, which he had previously objected to in the PSR. The standard of review for factual findings is clear error, while legal interpretations of the Sentencing Guidelines are reviewed de novo. The district court justified applying U.S.S.G. § 2A2.2, defining aggravated assault as a felonious assault with the intent to cause bodily harm, necessitating a finding that Garcia intended to harm the officers when he drove his car at them.
Garcia acknowledges that his automobile is classified as a dangerous weapon but disputes the intent required for application of U.S.S.G. 2A2.2. The district court's determination of intent is a factual finding subject to review for clear error. Garcia argues that his acceptance of responsibility negates any intent to harm Agent Lennon, as evidenced by his statement in the Presentence Investigation Report (PSR), in which he claimed he only intended to scare the agent while attempting to escape from a threatening situation. The Probation Department accepted and incorporated this statement into the PSR, recommending a three-level offense reduction under U.S.S.G. 3E1.1 for acceptance of responsibility.
However, the court was not obligated to accept Garcia's assertion of lack of intent as conclusive simply because it granted the reduction. It could have viewed his claims as self-serving and insufficient to counter the stronger evidence of intent derived from the record. The district court concluded that Garcia's actions—specifically, aiming his car at Agent Lennon and forcing him to jump onto a parked car to avoid being hit—indicated an intention to cause bodily harm. Therefore, the court affirmed that Garcia possessed the requisite intent and adjusted his offense level accordingly.
Additionally, Garcia raises a concern regarding "double counting," arguing that the four-level increase for using a dangerous weapon under 2A2.2(b)(2)(B) was inappropriate since it was based on the same conduct that classified the offense as aggravated assault, rather than a lesser minor assault.
Different appellate courts have reached varying conclusions on the issue of double counting in sentencing. In Newman, the court determined that a sentencing court could increase a defendant's base offense level under U.S.S.G. 2A2.2(b)(3)(B) for causing "serious bodily injury," even if this factor was also used to establish an aggravated assault under U.S.S.G. 2A2.2. The court emphasized that as long as the guidelines were applied according to their plain language and were designed to address potential double counting, the sentencing was valid. The Ninth Circuit, in United States v. Reese, supported this interpretation when it upheld enhancements for weapon use and bodily injury in federal civil rights crime convictions, rejecting double counting challenges.
In the case of Garcia, the enhancement of his sentence for using an inherently dangerous weapon under U.S.S.G. 2A2.2(b)(2)(B) was found not to constitute impermissible double counting. The court reasoned that using a weapon elevates the offense from minor to aggravated assault, and using a single factor to illustrate this transformation is an acceptable application of the guidelines.
Garcia also contested a two-level increase in his base offense level for obstructing justice under U.S.S.G. 3C1.1. He claimed insufficient evidence for the finding that he discarded heroin while fleeing from police. However, the district court found credible evidence, including observations by Detective Colón and statements regarding Garcia's actions during the police pursuit, to support the conclusion that he did throw heroin out of the window.
Garcia was identified as the heroin supplier for McMullen, who had previously bought heroin from him. The court found that Garcia discarded heroin during an arrest attempt, a determination deemed not clearly erroneous. Although Garcia argued that his actions were spontaneous and should not invoke a sentencing enhancement under U.S.S.G. 3C1.1, the guideline specifies that such conduct must materially hinder an investigation to warrant an adjustment. The court concluded that Garcia's disposal of the drugs hindered the prosecution's case, particularly after McMullen, the main witness, refused to cooperate.
Garcia also challenged a three-level increase under U.S.S.G. 3A1.2 for offenses involving an official victim, asserting that his actions did not meet the necessary criteria. However, the court found evidence that Garcia's conduct was motivated by the officers' status and posed a significant risk of injury, as he intentionally aimed his vehicle at them while they announced their identity. This behavior justified the enhancement.
Lastly, Garcia contended that the court mistakenly categorized his actions as aggravated assault under U.S.S.G. 2A2.2 instead of obstruction under 2A2.4. However, as he did not raise this argument during the district court proceedings, he effectively waived it according to precedent. The district court's decisions were affirmed.
