     Case: 19-30488   Document: 00515400445       Page: 1   Date Filed: 04/30/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                   No. 19-30488                          FILED
                                                                     April 30, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff–Appellee,

v.

RODERICK DOUGLAS,

             Defendant–Appellant.




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.

PER CURIAM:
      Roderick Douglas pleaded guilty to one count of conspiracy under 18
U.S.C. § 371 to commit a deprivation of civil rights, an offense defined by 18
U.S.C. § 242, and was sentenced to sixty months in prison. On appeal, he
asserts that the district court incorrectly calculated the advisory Guidelines
range of imprisonment and contends that the district court erred in denying
his request for a downward variance. We affirm the judgment.
                                        I
      While serving as corrections officers at the Richwood Correctional Center
in Louisiana, Roderick Douglas and four co-defendants came to suspect five
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                                 No. 19-30488
inmates of being affiliated with gangs.         The inmates were questioned
extensively, but none admitted to gang affiliation. Douglas, then a captain in
the correctional guard force, and his co-defendants took the inmates to an area
of the prison with no security cameras. The inmates were made to kneel while
their hands were handcuffed behind their backs. Douglas approached the first
inmate and asked if he was in a gang. After the inmate repeatedly denied his
involvement in a gang, Douglas “sprayed the handcuffed inmate directly in the
eyes with pepper spray.” Douglas then approached a second inmate and made
similar inquiries. In response to the second inmate’s similar denials, Douglas
likewise sprayed pepper spray in the second inmate’s eyes.
      At that point, Douglas handed the pepper spray to one of his co-
defendants. Three of Douglas’s co-defendants then “took [turns] spraying the
remaining inmates in the eyes.” As Douglas would later admit, “[e]ach inmate
was handcuffed, compliant, not posing a physical threat to anyone, and not
evading or struggling with any officer at the time he was sprayed.”
      Following this ordeal, the inmates were taken to a medical station for
treatment. In an attempt to avoid suspicion, Douglas and his co-defendants
filed false reports alleging that it became necessary to use pepper spray when,
after questioning the inmates about their gang affiliations, one of the inmates
attempted to escape. According to the falsified reports, the remaining inmates
were only inadvertently sprayed while officers attempted to subdue the inmate
who was attempting to escape. Douglas likewise lied about the incident when
he later spoke via phone with the warden of the facility.
      For their actions, Douglas and his co-defendants were charged in a
seven-count indictment with offenses ranging from conspiracy to deprive civil
rights to conspiracy to obstruct justice.   In exchange for the government
dismissing the remaining charges against him, Douglas pleaded guilty to
conspiracy to commit a deprivation of civil rights, an offense under 18 U.S.C.
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                                      No. 19-30488
§ 371. Thereafter, a United States Probation Officer prepared a pre-sentence
investigation report (PSR).
         The PSR determined that Douglas’s conduct merited a total-offense level
of thirty. Most relevant here, this included a four-level enhancement pursuant
to § 2A2.2(b)(2)(B) of the Sentencing Guidelines, 1 because the offense involved
a dangerous weapon; a three-level enhancement pursuant to § 2A2.2(b)(3)(A), 2
because the offense resulted in bodily injury; and a six-level enhancement
pursuant § 2H1.1(b), 3 because Douglas either qualified as a public official or
was operating under color of law at the time of the offense. Because Douglas
had no prior convictions or adjudications, the resulting advisory Guidelines
range was 97-to-121 months in prison. Pursuant to § 5G1.1(a), 4 this range was
subsequently reduced to sixty-months, the statutory maximum punishment
permitted under 18 U.S.C. § 371. 5
         Prior to sentencing and again before the district court, Douglas argued
that the PSR’s advisory Guidelines calculation was erroneous. He specifically
contended that pepper spray did not qualify as a dangerous weapon under
§ 2A2.2(b)(2)(B), 6 that the victims in this case did not sustain bodily injury,
and that he was not a public official nor acting under color of law at the time
of the offense. In support of his first two arguments, a retired police officer,
Mark Johnson, testified as an expert witness at the sentencing hearing.



         1   U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(b)(B) (U.S. SENTENCING COMM’N
2018).
         Id. § 2A2.2(b)(3)(A).
         2

         Id. § 2H1.1(b).
         3
       4 Id. § 5G1.1(a).
       5 See id. (providing that “[w]here the statutorily authorized maximum sentence is

less than the minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence”); see also 18 U.S.C. § 371 (noting that
any violation of this provision carries with it a maximum penalty of five years in prison).
       6 U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(b)(B) (U.S. SENTENCING COMM’N

2018).
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Johnson opined that pepper spray is an effective “pain compliance tool” that
generally leaves no lasting injuries.        During cross examination, however,
Johnson acknowledged that severe injuries are possible if the spray is
administered in close proximity to the recipient. As to his final objection,
Douglas argued that as a corrections officer in a private prison, he was neither
a public official nor operating under the color of law at the time of the offense.
      The district court rejected each argument. After crediting Johnson’s
admissions during cross examination, the district court concluded that the
pepper spray at issue here was “capable of inflicting death or serious bodily
injury” when used at close range. 7 The district court likewise concluded the
victims sustained bodily injury based on the fact that each victim was treated
by a nurse after the incident and the fact that some of the victims required
follow-on visits at a local hospital. Finally, the district court concluded Douglas
was acting as a public official or under the color of law at the time of the
incident. The court concluded that Douglas basically admitted to operating
under the color of law by pleading guilty to having conspired to deprive civil
rights. The court also found persuasive a D.C. Circuit opinion recognizing that
“[p]rotecting the public from incarcerated criminals is a quintessentially a
sovereign function,” 8 and our decision in United States v. Thomas, wherein we
held that a private prison guard was a public official under the federal bribery
statute. 9
      Thereafter, the court considered Douglas’s statements during allocution,
several letters filed on his behalf, and his previously filed request for a
downward variance before sentencing him to sixty months in prison. This



      7  See id. § 1B1.1 cmt. n.1(E) (defining a dangerous weapon as, inter alia, “an
instrument capable of inflicting death or serious bodily injury”).
      8 United States v. Neville, 82 F.3d 1101, 1106 (D.C. Cir. 1996).
      9 240 F.3d 445, 448 (5th Cir. 2001).

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                                      No. 19-30488
appeal followed.
                                            II
       We first consider whether the district court procedurally erred during
Douglas’s sentencing. As the Supreme Court has made clear, a district court
commits “significant procedural error” when it “fail[s] to calculate (or
improperly calculate[es]) the Guidelines range.” 10
       On appeal, Douglas contends the district court erred in concluding that
he should receive a four-level dangerous-weapon enhancement, a three-level
bodily injury enhancement, and a six-level public official or color-of-law
enhancement.       Because Douglas properly preserved his objection to each
enhancement below, we review the district court’s “application of the
Guidelines de novo and the district court’s factual findings—along with the
reasonable inferences drawn from those facts—for clear error.” 11 Under these
standards, the district court’s application of each enhancement survives
appellate review.
       As to the four-level dangerous-weapon enhancement, “[w]hether an item
is a dangerous weapon is a finding of fact” that we review for clear error. 12 The
Guidelines define a dangerous weapon as, inter alia, any “instrument capable
of inflicting death or serious bodily injury.” 13 “Serious bodily injury” is defined
as “injury involving extreme physical pain or the protracted impairment of a
function of a bodily member, organ, or mental faculty; or requiring medical



       10 Gall v. United States, 552 U.S. 38, 51 (2007).
       11 United States v. Velasco, 855 F.3d 691, 693 (5th Cir. 2017) (emphasis omitted)
(quoting United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)).
       12 Velasco, 855 F.3d at 693 (citing United States v. Estrada-Fernandez, 150 F.3d 491,

497 (5th Cir. 1998) (per curiam)).
       13 U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. n.1(E) (U.S. SENTENCING

COMM’N 2018); see also id. § 2A2.2 cmt. n.1 (noting that “‘[d]angerous weapon’ has the
meaning given that term in §1B1.1” of the Guidelines).

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                                      No. 19-30488
intervention such as surgery, hospitalization, or physical rehabilitation.” 14 In
interpreting this language, several appellate courts have concluded that
chemical agents such as pepper spray can qualify as dangerous weapons. 15
After reviewing the current record, we similarly conclude that the district court
here did not clearly err in finding that pepper spray satisfied these
requirements based on the facts present in this case. 16
       In arguing against application of the enhancement, Douglas stresses
that pepper spray is “one of the lowest levels of force at an officer’s disposal.”
He likewise notes that the product is sold commercially and that follow-on
treatment after pepper spray exposure generally involves merely flushing the
area with water. The record reflects that the pepper spray Douglas used,
“Phantom,” is more potent than the usual pepper spray, and as Douglas’s own
expert testified, severe injuries are possible when pepper spray is deployed in
close proximity to the recipient, as the evidence reflects occurred here. His
expert also classified pepper spray as a “pain compliance tool.” Two victims
were treated in a hospital after initial treatment in the prison infirmary, and
one victim suffered protracted impairment in his right eye. In light of these
facts, the district court’s conclusion that pepper spray was “capable of inflicting
death or serious bodily injury” 17 was certainly plausible. Consequently, the
district court did not clearly err in applying the four-level dangerous-weapon




       14 Id. § 1B1.1 cmt. n.1(M).
       15 See, e.g., United States v. Neill, 166 F.3d 943, 949-50 (9th Cir. 1999) (concluding
that pepper spray qualified as a dangerous weapon); United States v. Bartolotta, 153 F.3d
875, 879 (8th Cir. 1998) (same but for mace); United States v. Dukovich, 11 F.3d 140, 141-42
(11th Cir. 1994) (same but for tear gas).
       16 See Velasco, 855 F.3d at 693 (citing Estrada-Fernandez, 150 F.3d at 497).
       17 U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. n.1(E) (U.S. SENTENCING

COMM’N 2018).

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                                       No. 19-30488
enhancement here. 18
       Douglas’s arguments against application of the three-level bodily injury
enhancement fare no better. The “district court’s determination concerning
whether [a victim] sustained bodily injury within the meaning of § 2A2.2 is a
factual finding, reviewable under [the] clear error standard.” 19 The Guidelines
define bodily injury as “any significant injury; e.g., an injury that is painful
and obvious, or is of a type for which medical attention ordinarily would be
sought.” 20 Douglas’s arguments against the enhancement mirror those he
made against the dangerous-weapon enhancement. He argues, for example,
that the enhancement was inappropriate because pepper spray is “not known
to have long lasting effects or cause great bodily injury.”                 But under our
precedent, application of the enhancement turns “not on the actions of the
defendant, but rather on the injury sustained.” 21 Here, the district court did
not clearly err in concluding that the victims sustained bodily injury. 22 As
outlined in the PSR, each of the victims sought medical attention after the
incident. At least two victims required follow-on treatment at local hospitals,
with one of those victims requiring treatment after complaining he could not
see out of his right eye.         The district court was entitled to credit these
statements      and    to    consequently      apply     a   three-level     bodily    injury



       18  See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (noting that our
court “uphold[s] a district court’s factual finding on clear error review so long as the
enhancement is plausible in light of the record as a whole” (citing United States v. Gonzales,
436 F.3d 560, 584 (5th Cir. 2006))).
        19 United States v. Lister, 229 F. App’x 334, 340 (5th Cir. 2007) (citing United States

v. Isaacs, 947 F.2d 112, 114 (4th Cir. 1991)).
        20 U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. n.1(B) (U.S. SENTENCING

COMM’N 2018); see also id. § 2A2.2 cmt. n.1 (noting that “‘bodily injury,’ [has] the meaning
given [to it] in § 1B1.1” of the Guidelines).
        21 United States v. Guerrero, 169 F.3d 933, 946 (5th Cir. 1999) (emphasis omitted)

(collecting cases).
        22 See Lister, 229 F. App’x at 340 (citing Isaacs, 947 F.2d at 114).



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                                        No. 19-30488
enhancement. 23
       Finally, we reject Douglas’s argument that he should not have received
a six-level enhancement pursuant to § 2H1.1(b). 24                       By its terms, the
enhancement applies if “the defendant was a public official at the time of the
offense” or “the offense was committed under color of law.” 25 After considering
each party’s arguments, we conclude that Douglas’s “offense was committed
under color of law.” 26 We therefore need not decide whether Douglas qualified
as a public official at the time of the offense.
       As an initial matter, we note that the commentary to § 2H1.1(b) provides
no guidance as to what type of conduct qualifies as occurring under the “color
of law.” Nevertheless, we are not without any guideposts when it comes to
interpreting this term. For instance, we find it telling that § 2H1.1(b) includes
18 U.S.C. § 242 in its list of statutory provisions. 27 That statute punishes
“[w]hoever, under color of any law, . . . willfully subjects any person . . . to the
deprivation of any rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.” 28 Whatever the term’s outer bounds
may be, it is logical to infer that it was meant to cover conduct which, at a



       23  See United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (noting that “a PSR
[generally] bears sufficient indicia of reliability to be considered as evidence by the sentencing
judge in making factual determinations” (quoting United States v. Harris, 702 F.3d 226, 230
(5th Cir. 2012))).
        24 Our court has not directly considered whether a district court’s decision to apply the

color-of-law enhancement constitutes a factual finding entitled to deference or a legal
conclusion that should be reviewed de novo. Nevertheless, we leave this decision for another
day. The parties do not address the issue in their briefs nor is the standard of review outcome
determinative on appeal. Even assuming de novo review is required, the enhancement was
properly applied in this case.
        25 U.S. SENTENCING GUIDELINES MANUAL § 2H1.1(b)(1) (U.S. SENTENCING COMM’N

2018).
        26 Id.
        27 See id. at cmt.
        28 18 U.S.C. § 242 (emphasis added).



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                                             No. 19-30488
minimum, would satisfy the same term in 18 U.S.C. § 242.
          Our inclination to look to 18 U.S.C. § 242 for guidance is reinforced by
our analysis in United States v. Hatley, an unpublished decision. 29 There, the
defendant challenged application of the color-of-law enhancement despite
having pleaded guilty to violating 18 U.S.C. § 242. We quickly dismissed the
challenge to the enhancement based entirely on the defendant’s plea
colloquy. 30 In line with our decision in Hatley, we therefore conclude that
conduct satisfying 18 U.S.C. § 242’s color-of-law requirement necessarily
satisfies § 2H1.1(b)’s corresponding color-of-law requirement.
          In this case, Douglas’s conduct would have unquestionably satisfied the
color-of-law requirement identified in 18 U.S.C. § 242. As we explained in
United States v. Causey, a defendant’s actions satisfy 18 U.S.C. § 242’s color-
of-law requirement if the defendant “misuse[s] or abuse[s] his official power” 31
and “there is a nexus between the victim, the improper conduct[,] and [the
defendant’s] performance of official duties.” 32               Here, Douglas indisputably
misused or abused his authority by leveraging his official status to both render
his victims helpless and then harm them. Moreover, his quest for information
pertaining to the victims’ alleged gang affiliations demonstrates a sufficient
nexus “between the victim[s], the improper conduct[,] and [Douglas’s]
performance of official duties.” 33 Nor would Douglas’s conduct have fallen
outside the gambit of 18 U.S.C. § 242 merely because he worked for a private
prison. In United States v. Wallace, an unpublished decision, we held that



          29 717 F. App’x 457 (5th Cir. 2018).
          30 Id. at 463.
          31 185 F.3d 407, 415 (5th Cir. 1999) (citing West v. Atkins, 487 U.S. 42, 50 (1988)).
          32 Id. (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 n.4 (5th Cir. 1994) (en

banc)).
          33   Id. (citing Doe, 15 F.3d at 452 n.4).

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                                      No. 19-30488
private jailers can be held liable under 18 U.S.C. § 242 for improper conduct. 34
We see no reason why the same result should not attach here. Consequently,
the district court did not err in applying a six-level color-of-law enhancement
under § 2H1.1(b).
                                            III
       Next, we consider whether the district court erred in denying Douglas’s
request for a downward variance. As we made clear in United States v. Haro,
an unpublished decision, an allegation “that the district court erred in failing
to grant a downward variance . . . amounts to a challenge to the substantive
reasonableness of [the defendant’s] sentence.” 35 We review such claims under
the abuse of discretion standard 36 while simultaneously recognizing that “a
sentence within a properly calculated Guideline range is presumptively
reasonable.” 37 We “infer that the judge has considered all the factors for a fair
sentence set forth in the Guidelines.” 38            To rebut the presumption, the
defendant must demonstrate “that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” 39        Under that framework, Douglas fails to
demonstrate      that    his   within-guidelines       sentence     was     substantively
unreasonable.
       In his brief to this court, Douglas addresses the 18 U.S.C. § 3553(a)
factors and explains why, in his estimation, a lower sentence was appropriate.




       34No. 00-40242, 2001 WL 274098, at *1-2 (5th Cir. Feb. 12, 2001) (per curiam).
       35753 F. App’x 250, 256-57 (5th Cir. 2018) (per curiam).
      36 See Gall v. United States, 552 U.S. 38, 51 (2007).
      37 United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      38 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (quoting United States v.

Mares, 402 F.3d 511, 519-20 (5th Cir. 2005)).
      39 Id. (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007)).

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He cites statistical evidence suggesting his sentence exceeded the average and
median sentences imposed for civil rights crimes in both 2016 and 2017, and
attacks his advisory Guidelines range by arguing that comparatively more
severe offenses could theoretically result in a comparatively similar advisory
range. These arguments, however, mirror those he made before the district
court in his sentencing memorandum.                       The district court expressly
acknowledged its consideration of these arguments before imposing a sixty-
month sentence. Douglas is effectively asking us to reweigh the district court’s
calculus of the relevant factors, which we will not do. 40 We therefore conclude
that the district court’s decision to impose a sixty-month sentence here was
substantively reasonable.
                                       *        *         *
      The district court’s judgment is AFFIRMED.




      40   See Gall, 552 U.S. at 51.
                                               11
