                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 24 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50158

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-00367-RGK
 v.

KEITH LEON SMITH, AKA Christopher                MEMORANDUM*
Griffen, AKA Chris Griffin, AKA
Christopher Griffin, AKA Ken Smith,
AKA Kenneth Anthony Smith, AKA Leon
Smith,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                       Argued & Submitted October 11, 2018
                               Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
      Keith Leon Smith appeals his conviction and sentence for assaulting a

federal officer in violation of 18 U.S.C. § 111(a)(1) and (b). The incident occurred

after officers located Smith in Carson, California, two years after he absconded

from federal supervised release. When the officers blockaded his van, Smith

accelerated and drove directly toward Deputy Beeler, causing Beeler to jump out of

harm’s way.

      On appeal, Smith challenges the mens rea jury instruction, contending it did

not adequately instruct the jury on the intent required for an “intent to frighten”

theory of assault. Not only did Smith waive this objection by failing to object on

this basis below, but the two relevant jury instructions (Instructions 29 and 30),

when read together, do not misstate the law. Smith also argues that the jury lacked

sufficient evidence to conclude that he intended to do anything other than flee. But

the record contains more than enough evidence to conclude that when Smith

accelerated his van towards Beeler, Smith intended to frighten Beeler.

      Smith next contends that the district court erred at sentencing in finding, by

a preponderance of the evidence, that he intended to injure Beeler—a prerequisite

to applying the aggravated assault guideline. Although the jury did not find such

intent beyond a reasonable doubt, the record more than supports the court’s finding

at sentencing under the preponderance-of-the-evidence standard.


                                           2
      Applying both the aggravated assault guideline (U.S.S.G. § 2A2.2), and the

dangerous weapon enhancement (U.S.S.G. § 2A2.2(b)(2)(B)) did not

impermissibly punish Smith twice for the same conduct because the guideline and

enhancement focus on different aspects of Smith’s conduct: The guideline applies

because the assault involved the use of a van with intent to injure; the enhancement

applies because Smith actually used the van as a weapon by accelerating toward

Beeler. See United States v. Reese, 2 F.3d 870, 896 (9th Cir. 1993).

      Finally, Smith waived his argument that the government should have

disclosed the first grand jury transcript when he withdrew the request below. See

United States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995) (“[W]ithdrawal

of an objection is tantamount to a waiver of an issue for appeal.”); United States v.

Moore, 653 F.2d 384, 389–90 (9th Cir. 1981). Additionally, any problem with the

testimony of a witness in the first grand jury proceedings could not have resulted in

reversible error: Smith was tried after a second grand jury independently indicted

him without hearing from that witness, and the trial jury convicted on a similar

record.

      AFFIRMED.




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