     Case: 10-10419     Document: 00511600123         Page: 1     Date Filed: 09/12/2011




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

                                                                            FILED
                                                                        September 12, 2011

                                       No. 10-10419                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff – Appellee
v.

RENE SALAZAR

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 Dallas Division
                            USDC No. 309-CR-00216-1


Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
        On August 4, 2009, Rene Salazar (“Salazar”) was indicted by a Texas
grand jury on two counts of assault on a federal officer, in violation of 18 U.S.C.
§ 111, and one count of possession of a firearm during and in relation to a crime
of violence, pursuant to 18 U.S.C. § 924(c)(1)(A)(iii). Following a jury trial,
Salazar was found guilty of all three counts. The district court sentenced
Salazar to seventy-eight months on counts one and two. Based on United States


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Sentencing Guideline (“USSG”) § 3A1.2, the district court enhanced Salazar’s
offense level by six levels, and sentenced Salazar to 162 months on count three
to run consecutively to counts one and two. Salazar received a total sentence of
240 months imprisonment, three years supervised release and a $300.00 special
assessment fee. Salazar now appeals his conviction and sentence.
                    FACTS AND PROCEDURAL HISTORY
      In the summer of 2009, local and federal law enforcement officers (“LEO”)
initiated Operation Community Shield in Dallas, Texas.1 On June 24, 2009, at
approximately 9:00 p.m., LEOs arrested a gang member near the corner of
Grandview Avenue and Santa Fe Avenue in Dallas, Texas. After the suspect
was arrested and taken away, four LEOs2 remained at the scene to interview a
witness. While Officer Schultz was interviewing the witness on the sidewalk,
Agent Maldanodo was standing in front of his parked vehicle, Officer Loera was
sitting in the driver’s side of the marked Police cruiser and Agent Cavitt was
standing outside the driver’s side door talking with Officer Loera.
      At approximately 9:45 p.m., Salazar drove past the LEOs and their two
vehicles parked on the north side of the street. Salazar’s vehicle passed so close
to Maldanodo and Cavitt that, “[i]f [Maldanodo] wanted [he] could reach out and
touch [Salazar’s vehicle].” Salazar proceeded approximately twenty-five yards
to the stop sign at Grandview Avenue and Santa Fe Avenue. Once stopped,
Salazar stuck his arm out of the driver’s side window and fired three shots from
a .38 caliber revolver. Salazar then turned left onto Santa Fe Avenue as he fired
two more shots and immediately sped away. Loera and Shultz quickly gave
chase, and were able to find Salazar’s car parked at his house. The officers


      1
        In 2005, Immigration and Customs Enforcement (“ICE”) began Operation Community
Shield. Operation Community Shield was designed to dismantle violent street gangs.
      2
        ICE Agent Steve Cavitt, ICE Agent Benito Maldanodo, Dallas Police Officer Darian
Loera and Dallas Police Officer Teena Schultz remained at the scene of the arrest.

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                                        No. 10-10419

noticed Salazar running inside the house and ordered him to stop, but Salazar
refused. The officers then followed Salazar into the house where they found him
in the shower. After a brief scuffle, the officers arrested Salazar and took him
to the police station.
       Once at the station, Detective E. Ibarra read Salazar his Miranda rights
and questioned him regarding the shooting. During the interrogation, Salazar
admitted to firing the gun; not at the officers, but rather in the air to intimidate
rival gang members that lived in the area. Salazar claimed that he did not know
that LEOs were present at the intersection of Grandview Avenue and Santa Fe
Avenue. He further stated that he fled the scene at a high rate of speed, went
to his house, ran inside, hid the gun in the freezer, and jumped in the shower.3
       On August 4, 2009, Salazar was indicted by a federal grand jury on two
counts of assault on a federal officer,4 in violation of 18 U.S.C. § 111, and one
count of possession of a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii).
       Before trial, it was determined that defense counsel would be allowed ten
peremptory strikes and the Government would be allowed six peremptory
strikes. During the selection process, the district court asked potential jurors,
“Have you, any member of your family or any close friend ever been employed
by law enforcement personnel?” Several potential jurors raised their hand
acknowledging that they had a connection with law enforcement.                              The


       3
          Before trial, Salazar filed a motion to suppress the gun that the officers found in his
freezer and his statement to the officers. The district court denied the motion. However, this
ruling is not an issue in the current appeal.
       4
            Counts one and two of the indictment charged Salazar with “knowingly, and by
means and use of a dangerous weapon . . . did forcibly assault, resist, oppose, impede,
intimidate, and interfere with [federal agents] who [were] engaged in . . .the performance of
[] official duties.” Count three stated that Salazar “knowingly used and carried a firearm
during and in relation to a crime of violence . . . namely: assault on a Federal Officer as
charged in Count One and Two.”

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Government used all six of its peremptory strikes against the first six jurors that
did not have a connection to law enforcement. Of those jurors, two were African-
American and one was Hispanic. Salazar objected to the Government’s strikes,
raising a Batson5 challenge. Salazar claimed that jurors 2 and 3 were struck
because they were the only African-Americans in the venire and juror 8 because
he was Hispanic. Without making an on-the-record determination regarding
whether Salazar had made a prima facie showing for a Batson challenge, the
district court asked the Government for an explanation. The Government
explained that “anybody that didn’t have a family member in law enforcement
was struck [with] the first six strikes . . . . We just used the first six strikes
because of [no connection with] law enforcement.” The district court accepted
the Government’s response and denied the challenge.
       On December 22, 2009, Salazar filed a notice designating the witnesses
that he may call at trial.          Salazar designated Dr. Clarke Newman, an
optometrist, as an expert witness to be called at trial. Salazar explained that Dr.
Newman would testify to Salazar’s vision impairments and his ability to identify
objects in low light situations. At the pretrial conference, the district court
asked defense counsel why Dr. Newman’s testimony was relevant given the fact
that the Government was not required to prove that Salazar had knowledge that
the victims were federal agents. Defense counsel responded that Dr. Newman’s
testimony would “refute the [G]overnment’s theory of the case that Mr. Salazar
fired his weapon at the officers because he recognized them as officers.” The
district court took the issue under advisement before making a ruling.
       In a pre-trial motion to the district court, defense counsel asked whether
it would be allowed to call Dr. Newman as an expert witness. The district court


       5
          Batson v. Kentucky, 476 U.S. 79 (1986) found that the use of peremptory challenges
to strike potential jurors based on their race violates the Fifth Amendment’s equal protection
clause.

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informed the parties that it was “leaning toward excluding testimony” that
relates to whether Salazar could identify the LEOs as federal agents because it
might cause juror confusion. The district court postponed its ruling to allow
defense counsel to brief the issue. In support of its brief, Salazar proposed
language for a jury instruction in an attempt to alleviate the possibility of juror
confusion. After considering defense counsel’s brief, the district court concluded
that Dr. Newman would be allowed to testify that Salazar could not see anyone
standing on the sidewalk or street that night, but would not allow any testimony
as to whether Salazar could identify anyone as federal agents. At the conclusion
of the Government’s case-in-chief, defense counsel moved for a judgment of
acquittal, which the court denied.
      During Salazar’s case-in-chief, defense counsel presented the testimony of
Investigator Joe Saal and Dr. Newman. Investigator Saal testified that he had
visited Washington Avenue and Santa Fe Avenue several months after the
incident to take photographs and to videotape the darkness of the scene. Dr.
Newman testified that Salazar was near-sighted, had astigmatism and
corrective amblyopia.     Dr. Newman opined that Salazar’s “ability to see
something if something were standing [on the sidewalk]” would be affected based
on the dark conditions on the night of the shooting. In sum, Dr. Newman
testified that the low light on the night of the shooting, the officer’s dark
uniforms and Salazar’s poor eyesight combined to “make it practically
impossible” for Salazar to see anyone in the area of the officers. After Dr.
Newman’s testimony, defense counsel rested its case-in-chief and moved for a
judgment of acquittal. Salazar’s motion for judgment of acquittal was denied.
      Thereafter, the district court heard arguments from the parties regarding
the jury instructions.    Salazar was primarily concerned with the court’s
instruction that:



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                                  No. 10-10419

      [i]t is not necessary to show that Defendant Salazar knew that the
      alleged victim was, at the time, a federal officer carrying out an
      official duty. So long as it is established beyond a reasonable doubt
      that the victim was, in fact, a federal officer acting in the
      performance of his official duties.
      Salazar objected to the instruction, arguing that “we believe that the jury
can consider” whether Salazar knew the people at the scene were LEOs “for the
specific purpose of motive or lack of motive to assault these two [federal agents].”
Salazar proposed that the district court instruct the jurors that:
      you may consider evidence that the Defendant knew or did not know
      that the alleged victims in this case were law enforcement officials
      to determine whether the defendant had a motive to assault the
      victims and hence determine whether the Defendant intended to fire
      at them or place them in fear.
      The Government opposed Salazar’s proposed instruction, arguing that it
is not required to prove whether Salazar knew or did not know of the victim’s
official status. Based upon its research, the district court explained that it had
only seen Salazar’s proposed instruction used where self-defense was at issue.
Because this case did not involve the defense of self-defense, the district court
overruled Salazar’s objection to the Government’s proposed instruction and
instructed the jury on the relevant law.
      On January 14, 2010, the jury returned a verdict of guilty on all three
counts. The district court dismissed the jury and sat in recess until sentencing.
Prior to sentencing, probation prepared a pre-sentence report (“PSR”), which
calculated Salazar’s offense level to be twenty-six with a criminal history
category I. At sentencing, defense counsel raised several objections to the PSR,
but primarily concerned itself with the six level enhancement under U.S.S.G. §
3A1.2. Defense counsel argued that the enhancement should not apply because
the Government did not prove, by a preponderance of the evidence, that Salazar




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knew that the people in the area at the time of the shooting were federal officers.
The district court disagreed and applied the enhancement.
      Subsequently, the district court adopted the PSR and PSR Addendum and
sentenced Salazar to 78 months imprisonment for counts one and two. On count
three, the district court sentenced Salazar to serve 162 months imprisonment
which incorporated a forty-two month enhancement.
      After sentencing Salazar to a total of 240 months in prison, the district
court provided its reasons for the upward variance, which it stated:
            Mr. Salazar, what you did was simply wrong. And I don’t
      think a guidelines sentence of 198 months adequately addresses the
      severity of your conduct. Let me put everything in perspective.
      What you did on that night, you fired shots. And I am convinced
      that you knew that there were law enforcement officers on the
      scene. I am convinced that you saw Officer Maldanodo. I am
      convinced that you saw other officers.

            I do not buy your story that you did not see those officers. It
      does not square with the evidence. Now, there w[ere] some initial
      shots fired. That in itself is bad enough. But for whatever reason,
      that was not enough reason for you. A few seconds passed. When
      you stopped as you are turn[ing], more shots were fired. That was
      a conscious decision on your part. That was no mistake. That you
      did, you intended to do. There is no ifs, ands, or buts, about it. If
      you are going to fire at law enforcement officers, that has
      consequences and it needs to have severe consequences so that the
      public and others who may – others who might be inclined to
      commit these types of offenses know that the Court does not take
      commission of such offenses lightly. In other words, a sentence
      needs to be sufficient to deter conduct that others might be inclined
      to engage in. That is one reason why I am going outside the
      guidelines.

            I do not think a sentence of 16 and a half years or 198 months
      for these three offenses is sufficient to accomplish that objective of
      the statute. Also, I don’t think that it shows adequate respect for
      the law, that is, a sentence of 16 and a half years. It does not reflect
      the seriousness of the offense.


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      The district court, in accordance with the statute, ordered that the
sentence for count three run consecutively with counts one and two. Salazar
timely appealed.
                                DISCUSSION
      On appeal, Salazar raises several issues. Specifically, Salazar claims that
the district court erred (1) in concluding that Salazar failed to make a prima
facie case of discrimination under Batson; (2) when it refused to allow Dr.
Newman to testify whether Salazar could have identified the people at the scene
that night as LEOs; (3) when it refused Salazar’s proposed jury instruction
regarding whether Salazar knew the people at the scene were LEOs; and (4)
when it applied USSG § 3A1.2, determining that Salazar intentionally targeted
the LEOs because of their status as LEOs.
      I.    Whether the district court erred in overruling Salazar’s objection
            under Batson v. Kentucky.
      In this case, Salazar contends that the district court erred in concluding
that he failed to make out a prima facie case of discrimination under Batson.
Salazar argues that he satisfies the first prong as long as he establishes an
inference of discrimination. See Johnson v. California, 545 U.S. 162, 173 (2005).
“Batson intended for a prima facie case to be simple and without frills.” Cain v.
Price, 560 F.3d 284, 287 (5th Cir. 2009). It is sufficient “to show only that the
facts and circumstances of [the defendant’s] case gave rise to an inference that
the [Government] exercised peremptory challenges on the basis of race.” Id.
Salazar further claims that the court “should have proceeded to the second and
third steps of the Batson inquiry, but it did not. This was reversible error.”
      “The use of peremptory challenges to strike venire-persons based on their
race violates the equal protection component of the Due Process clause of the
Fifth Amendment.” United States v. Montgomery, 210 F.3d 446, 453 (5th Cir.
2000). The district court’s conclusion as to whether the peremptory challenges


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                                  No. 10-10419

were racially motivated is reviewed for clear error. United States v. Williams,
264 F.3d 561, 571 (5th Cir. 2001). This court, however, “give[s] great deference
to the district court because ‘findings in this context largely turn on an
evaluation of the credibility or demeanor of the attorney who exercises the
[peremptory] challenge.’” United States v. Davis, 393 F.3d 540, 544 (5th Cir.
2004) (quoting United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir.
1993)). This court analyzes whether a party has exercised a peremptory strike
in a discriminatory manner in three steps:
      First, the claimant must make a prima facie showing that the
      peremptory challenges have been exercised on the basis of race.
      Second, if this requisite showing has been made, the burden shifts
      to the party accused of discrimination to articulate race-neutral
      explanations for the peremptory challenges. Finally, the trial court
      must determine whether the claimant has carried his burden of
      proving purposeful discrimination.
Bently-Smith, 2 F.3d at 1373.
      Salazar relies on Johnson wherein the Supreme Court reversed the trial
court based on Batson because the prosecution in that case used three of its
twelve strikes to eliminate all three African-American jurors left in the venire
after preliminary disqualifications. 545 U.S. at 164. Salazar’s reliance on
Johnson, however, is misleading because it differs from the present case. In
Johnson, defense counsel raised the Batson challenge twice. Id. at 165-167.
Defense counsel raised its first Batson objection when the prosecution struck the
second African-American. Johnson, 545 U.S. at 165-167. Without requiring a
race-neutral reason for the strike from the prosecution, the trial court overruled
Johnson’s Batson objection. Id. Johnson’s defense counsel renewed its Batson
objection the next morning. Id. The trial court again overruled the objection
without a race neutral explanation from the prosecution. Id.
      Unlike Johnson, the district court in the present case asked the
Government to provide a race-neutral explanation as to why it struck the

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particular jurors after Salazar had raised his Batson challenge.                  The
Government explained that “anybody that didn’t have a family member in law
enforcement was struck [with] the first six strikes . . . . We just used the first six
strikes because of [no connection with] law enforcement.” Subsequently, the
district court overruled Salazar’s Batson challenge stating that Salazar did not
make out a prima facie showing.
         Based on the record before us, it is clear that the district court did not err
in overruling Salazar’s Batson challenge. The district court heard Salazar’s
initial challenge to the Government’s strikes, the Government provided a race-
neutral reason for its use of the peremptory strikes, and the district court
determined that Salazar did not prove purposeful discrimination by the
Government. Therefore, in light of the district court’s unique position to assess
the Government’s credibility, we cannot find clear error in the district court’s
decision to overrule Salazar’s Batson challenge.
II.      Whether the district court erred when it refused to allow Dr. Newman to
         testify whether Salazar could have identified the people at the scene that
         night as LEOs.
         This court reviews a district court’s evidentiary rulings for an abuse of
discretion, subject to the harmless error doctrine. United States v. Sanders, 343
F.3d 511, 517 (5th Cir. 2003). In order for the error to be reversible, it must
prejudicially affect a substantial right of the defendant. Id. at 519. In United
States v. Feola, the Supreme Court held that 18 U.S.C. § 111 did not require
proof that the defendant knew the victim was a federal officer. 420 U.S. 671, 684
(1975).
         Here, Salazar argues that the district court erred by “improperly
restricting Mr. Salazar’s right to present a defense against the [G]overnment’s
allegations.” Salazar’s assignment of error stems from the district court’s ruling
that defense expert, Dr. Newman, could only testify to whether Salazar’s vision


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would allow him to see anyone standing on the sidewalk or street that night, but
would not allow any testimony as to whether Salazar could identify anyone as
federal agents. The district court stated that it would not allow Dr. Newman to
testify to whether Salazar could identify anyone as federal agents out of concern
that jurors may become confused because whether or not Salazar could identify
the people at the scene as LEOs is not an element of the underlying crimes and
would cause jury confusion.
      Examining the plain language of the statute, the Government is required
to prove that the defendant “forcibly assault[ed] . . . [or] intimidat[ed]” a federal
officer. See 18 U.S.C. § 111. The defendant need not know whether the victim
was a federal agent to be convicted pursuant to 18 U.S.C. § 111. Feola, 420 U.S.
at 677-678. All that is required then is that the defendant knowingly assaulted
a person who was a LEO acting in his official capacity. Id. Federal Rule of
Evidence 402 provides that “[e]vidence which is not relevant is not admissible.”
See Fed. R. Evid. 402. Indeed, even if the evidence was relevant, the district
court may properly exclude the evidence if the “probative value is substantially
outweighed by the danger of . . . confusion of the issues, misleading the jury . .
. .” See Fed. R. Evid. 403.
      Salazar argues that the evidence would tend to show that the victims’s
status as LEOs did not motivate the shooting. Here, Salazar’s argument fails
because motive is not an element of the underlying offense. Thus, whether or not
the defendant knew the victim to be a federal agent is irrelevant and therefore
not admissible.
      Salazar further claims that Dr. Newman’s testimony was erroneously
limited because Dr. Newman was going to testify that Salazar’s vision was so
poor it would be highly unlikely for Salazar to have identified the LEOs as
LEOs. Thus, Salazar’s argument goes: If Salazar could not have identified the
LEOs as LEOs then he certainly could not have intended or been motivated to

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shoot at the LEOs because they were LEOs. Again, all that is required is that
the Government establish that Salazar forcibly assaulted a person who was a
federal officer. Feola, 420 U.S. at 677-678.
         Moreover, despite the district court’s limitation on Dr. Newman’s
testimony, Dr. Newman gave testimony regarding Salazar’s impaired vision.
When Dr. Newman was presented with a photograph of Maldanodo standing
between the LEOs’s vehicles, defense counsel asked the likelihood that Salazar,
even wearing eyeglasses, could see [Maldanodo] standing there. Dr. Newman
replied that it would be possible, but unlikely, for Salazar to see Maldanodo
standing between the two vehicles. Defense counsel also asked Dr. Newman
whether Salazar, under the same conditions, would be able to make out the
yellow lettering on Maldanodo’s shirt, which read “POLICE.” He stated that it
would be impossible for Salazar to make out the yellow word “POLICE.”
         Similarly, Dr. Newman was also presented with a photograph of Cavitt,
which was taken on the night of the shooting. Dr. Newman was allowed to
testify that it would be “close to impossible” for Salazar to see Cavitt standing
on the sidewalk. Dr. Newman testified that Salazar’s near-sightedness, his
astigmatism, his amblyopia condition and the poor lighting amalgamated to
make it “practically impossible” for Salazar to identify who, if anyone, was
standing on the sidewalk or in the street.
         Therefore, the district court’s limitation on Dr. Newman’s testimony was
slight. Accordingly, the district court did not abuse its discretion in limiting Dr.
Newman’s testimony.
III.     Whether the district court erred when it refused Salazar’s proposed jury
         instruction regarding whether Salazar knew the people at the scene were
         LEOs.6


         6
             This assignment of error falls under a similar vein of analysis as the issue discussed
above.

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      The district court’s denial of a proposed jury instruction is reviewed under
an abuse of discretion standard. United States v. Betancourt, 586 F.3d 303, 305
(5th Cir. 2009). However, the district court abused its discretion in denying the
defendant’s proposed jury instruction, we must apply a harmless error analysis.
Id. The district court will not abuse its discretion in denying a requested jury
instruction unless the instruction,
      (1) was a substantially correct statement of the law, (2) was not
      substantially covered in the charge as a whole, and (3) concerned an
      important point in the trial such that the failure to instruct the jury
      on the issue seriously impaired the defendant’s ability to present a
      given defense.
United States v. Jobe, 101 F.3d 1046, 1059 (5th Cir. 1996) (quoting United States
v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995) (internal quotation marks
omitted)).    The district court, however, retains substantial latitude in
constructing its jury charge.” United States v. Edelkind, 525 F.3d 388, 397 (5th
Cir. 2008).
      Salazar’s proposed jury instruction provided that the jury:
      may consider evidence that the Defendant knew or did not know
      that the alleged victims in this case were law enforcement officials
      to determine whether the defendant had a motive to assault the
      victims and hence determine whether the Defendant intended to fire
      at them or place them in fear.
      Salazar contends that this proffered instruction should have been
submitted to the jury because it would have allowed him to rebut the
Government’s case to show that he did not intend to fire a gun at the LEOs. The
district court noted that it could only find one case where such an instruction
was warranted. See United States v. Moore, 958 F.2d 646, 649-50 (5th Cir. 1992).
The court noted that in that case, the proffered instruction was allowed based
on the defendant’s theory that he acted in self-defense when he assaulted the




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                                  No. 10-10419

federal agents. The district court found that Salazar had not claimed self-
defense, and therefore denied the instruction.
      The Government argues that Salazar’s proffered instruction fails under
the first step of the Jobe test – instruction must be a “substantially correct
statement of the law.” Jobe, 101 F.3d at 1059. The Government claims that the
instruction assumes that Salazar saw someone at the scene, but he may not have
been able to determine that the person was a federal agent. Feola makes clear,
however, that the defendant need not know that the victim was a federal agent
so long as the defendant intentionally assaulted the victim and that victim was
a federal agent. 420 U.S. at 477-478. An instruction, such as Salazar’s, is
appropriate “only when self-defense, or other justifiable action, is raised by the
evidence.” Feola, 420 U.S. at 677-678; see also Fifth Cir. Pattern Jury Instr. 2.09
(instructing that defendant would not be guilty of assault if evidence creates
reasonable doubt concerning whether defendant knew victim to be federal officer
and only committed such act because of reasonable, good faith belief that
defendant needed to defend himself against assault by private citizen). Further,
instructing the jurors that the Government is not required to prove that Salazar
knew the victims were federal agents, and subsequently instructing that they
may consider evidence of whether or not Salazar could identify the people at the
scene as federal agents would likely confuse the jurors.
      In this case, Salazar has not claimed that he was acting in self-defense or
justified in his actions. Whether or not Salazar intended to shoot specifically at
federal officers is irrelevant under the statute. Feola, 420 U.S. at 477-478. To
be found guilty, the Government need only prove that Salazar intended to
assault the victims and that the victims were federal agents. Id. An instruction
allowing the jury to consider irrelevant evidence will, as the district court found,
likely cause juror confusion. Therefore, the district court did not abuse its
discretion in denying Salazar’s proffered jury instruction.

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                                   No. 10-10419

IV.   Whether the district court clearly erred when it applied U.S.S.G. § 3A1.2,
      determining that Salazar intentionally targeted the LEOs because of their
      status as LEOs .
      Salazar alleges that the district court erred at sentencing when it
determined that he intentionally targeted the LEOs because of their status as
LEOs and enhanced his base offense level under U.S.S.G. § 3A1.2. For the
district court to apply a sentencing enhancement, the Government must prove
by a preponderance of the evidence that the enhancement applies. United States
v. Le, 512 F.3d 128, 136 (5th Cir. 2007). “This court reviews de novo the district
court’s guidelines interpretations and reviews for clear error the district court’s
findings of fact.” Id. at 134. “A factual finding is not clearly erroneous ‘as long
as it is plausible in light of the record as a whole.’” United States v. Gonzales, 436
F.3d 560, 584 (5th Cir. 2006) (quoting United States v. Holmes, 406 F.3d 337, 363
(5th Cir. 2005)).
      The United States Sentencing Guidelines provide a six level enhancement
to a defendant’s base offense level where the victim of the assault was a
Government officer, the assault was motivated by the victim’s status as a LEO,
and the applicable guideline is for an offense against the person. See U.S.S.G.
§ 3A1.2(a) & (b) (2010). Salazar argues that this enhancement should not apply
because he did not know the people standing on the sidewalk and street were
LEOs and therefore he could not have been motivated by the LEOs’s status in
committing the offense. We disagree.
      Despite Salazar’s contention that he did not know that the people on the
side of the street were LEOs, there was sufficient testimony at trial to support
the opposite conclusion. Maldanodo testified that Salazar drove within five feet
of where he was standing, that he could have reached out and touched Salazar’s
vehicle. Maldanodo further testified that Salazar passed even closer to Cavitt,
who was standing in the street. The evidence also established that the LEOs


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  Case: 10-10419     Document: 00511600123      Page: 16    Date Filed: 09/12/2011



                                   No. 10-10419

were standing near a marked police vehicle with the interior dome light on.
Salazar, however, maintains that the assault could not have been motivated by
the victims’s status as LEOs because his vision was so poor that he could not
identify the victims as LEOs.
      The district court did not commit clear error when it found that Salazar
was motivated by the LEOs status to fire his weapon and applied § 3A1.2 of the
Sentencing Guidelines. In fact, the district court was “convinced that [Salazar]
knew that there were law enforcement officers on the scene.” While Salazar
claims that his vision was so poor that he could not see the four LEOs, the
evidence showed that after the shots were fired Salazar was able to speed away
through poorly lit streets to his house with his headlights off. Considering that
evidence and Salazar’s own expert’s testimony that if Salazar was not wearing
his glasses when he sped away it would have been a miracle that he did not
wreck his vehicle, the district court found it plausible that Salazar was wearing
his eyeglasses. In light of the record as a whole, the district court correctly found
it plausible that Salazar saw the LEOs and was motivated by their presence to
fire the five shots. Therefore, the district court did not commit clear error when
it found that the six-level sentencing enhancement applied.
                                 CONCLUSION
      Based on the foregoing reasons, we AFFIRM Salazar’s conviction and
sentence.




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