
USCA1 Opinion

	




                            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                                      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,                                         -2-          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                                         -3-          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,                                         -4-          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).                                         -5-                    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                                  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                                      DISCUSSION                                      __________                                         -6-                    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).                                         -7-          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                                         -8-          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                                         -9-          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                                         -10-          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                                         -11-          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                                         -12-          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                                         -13-          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.                                         -14-                      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.                    ________                                         -15-
