                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4827


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

REUBEN AUGUSTINE ALVAREZ, JR.,

                Defendant   - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00566-RDB-1)


Submitted:   August 29, 2011                 Decided:   September 6, 2011


Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney,   Greenbelt,  Maryland,   for   Appellant.     Rod J.
Rosenstein, United States Attorney, Ayn B. Ducao, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            On    April     11,   2007,    United      States    Drug    Enforcement

Administration (DEA) Agents attempted to arrest Reuben Augustine

Alvarez, Jr. pursuant to an arrest warrant.                      One car, carrying

two agents, was angled across the street from the home where

Alvarez was staying in order to prevent Alvarez from driving

away.    Nevertheless, Alvarez accelerated his vehicle toward the

car carrying the two agents, striking it, as well as a parked

car, before squeezing through the space and driving off.                              The

agents   were     unable    to    arrest     Alvarez    that    day.        Eight   days

later,   when     confronted      by   law     enforcement      officers,         Alvarez

again fled.       He was arrested a few minutes later.

            Based      on   the   April      11   incident,      a   jury    convicted

Alvarez of two counts of assaulting a federal officer with a

dangerous weapon, in violation of 18 U.S.C. § 111 (2006), one

count for each of the DEA agents in the car that Alvarez hit.

The   district     court    calculated         Alvarez’s     sentencing       range    as

fifty-seven       to   seventy-one      months,        and   imposed     a    variance

sentence of thirty-six months of imprisonment.                       Alvarez asserts

six claims of error on appeal.               As explained below, we affirm in

part and vacate and remand in part.

            First, Alvarez argues that he should not have been

convicted of two counts of assaulting a federal officer, because

he    committed    only     one   assaultive       act.        Whether      his    double

                                           2
conviction was in error is reviewed for plain error, because

Alvarez did not make this argument before the district court.

United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008).                  The

Government concedes, and we agree, that his double conviction

was plainly erroneous.           See Ladner v. United States, 358 U.S.

169, 178 (1958) (“We thus hold that the single discharge of a

shotgun . . . would constitute only a single violation of [the

prior statutory section for 18 U.S.C. § 111].”).                   Accordingly,

we vacate the conviction on Count Two and remand this action to

the district court for the entry of an amended judgment.

           Second, Alvarez argues that district court erred in

denying    his    motion   for    judgment       of   acquittal   because   the

evidence    was    insufficient     to       prove    the   requisite   criminal

intent.    This Court reviews the district court’s denial of a

motion for judgment of acquittal de novo.                    United States v.

Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct.

271 (2010).

    In reviewing the sufficiency of the evidence following
    a conviction, the court is to construe the evidence in
    the light most favorable to the government, assuming
    its credibility, and drawing all favorable inferences
    from it, and will sustain the jury’s verdict if any
    rational trier of fact could have found the essential
    elements of the crime charged beyond a reasonable
    doubt.

United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011)

(citation and emphasis omitted).


                                         3
            To    sustain      a    conviction         for     assaulting      a    federal

officer with a dangerous weapon in violation of 18 U.S.C. § 111,

the Government must prove that Alvarez used a dangerous weapon

to    forcibly    assault,        resist,      oppose,       impede,     intimidate,      or

interfere with any designated federal officer while that officer

was    performing      official         duties.           18    U.S.C.       § 111(a)-(b).

Section 111 “does not proscribe reasonable force employed in a

justifiable belief that it is exerted in self-defense.”                              United

States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966).

            “[T]he      quantum         of     force      which    one       may    use   in

self-defense is proportional to the threat which he reasonably

apprehends.”        United States v. Black, 692 F.2d 314, 318 (4th

Cir. 1982).       “[W]here a defendant charged with violating § 111

claims    that    he   was     unaware        that     the     victim    was    a   federal

officer, the question becomes:                     would the defendant have been

justified,       because     of    the       agent’s    actions,        in   using    force

against the agent had the latter, in fact, been a ‘civilian.’”

United States v. Hillsman, 522 F.2d 454, 460 (7th Cir. 1975).

            Here,      there      was    more      than      sufficient      evidence     to

establish that on April 11, Alvarez used force against the DEA

agents that was disproportionate to any reasonably apprehended

potential threat.          Alvarez accelerated toward the car carrying

the two agents, even though their car was parked and even though

one of the agents had opened his door and begun to exit.                              There

                                               4
was no evidence that the agents displayed any weapons or called

out    any     threats.    Because    there        was   sufficient    evidence       to

support the jury’s finding that Alvarez acted with the requisite

criminal intent to support a conviction for assaulting a federal

agent, and sufficient evidence to disprove any allegation of

self    defense,     the   district    court        did    not   err     in     denying

Alvarez’s motion for judgment of acquittal.

               Third, Alvarez argues that the district court erred in

declining       to   include   the    entire       jury    instruction        that    he

requested.        This Court “review[s] a district court’s decision

whether to give a jury instruction for abuse of discretion.”

United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010),

petition for cert. filed, 80 U.S.L.W. 3015 (U.S. Feb. 4, 2011)

(No. 10-1010).

       A district court commits reversible error in refusing
       to provide a proffered jury instruction only when the
       instruction (1) was correct; (2) was not substantially
       covered by the court’s charge to the jury; and (3)
       dealt with some point in the trial so important, that
       failure to give the requested instruction seriously
       impaired the defendant’s ability to conduct his
       defense.

Id.       In    determining    whether       the     district    court        erred   in

instructing the jury, this Court reviews the district court’s

jury instructions as a whole and in the context of the entire

charge.        Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 191

(4th Cir. 2003).


                                         5
            Here, Alvarez requested that the court include a jury

instruction    first      specifying          that      there    may    be    cases    where

“ignorance of the official status of the person assaulted or

resisted negates the very existence of criminal intent needed to

find the defendant guilty” and next providing an example.                                  The

district court gave the instruction requested by Alvarez, except

for the part that set forth a specific example.                               We conclude

that the part of Alvarez’s requested jury charge setting forth a

specific example was substantially covered by the rest of the

jury charge and the district court did not commit reversible

error in declining to add it.

            Fourth, Alvarez argues that the district court erred

in   admitting    evidence           of     his    flight       from    law    enforcement

officers eight days after the April 11 incident.                              “Evidence of

other   crimes,    wrongs,           or    acts    is    not     admissible”      if       that

evidence is used to prove the character of the defendant “in

order to show action in conformity therewith.”                            Fed. R. Evid.

404(b).       However,         such        evidence     is     admissible      for     other

purposes,     “such      as        proof     of    motive,      opportunity,         intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”        Fed.        R.    Evid.     404(b).           “Rule    404(b)       is     an

inclusionary rule, allowing evidence of other crimes or acts to

be admitted, except that which tends to prove only criminal

disposition.”      Penniegraft, 641 F.3d at 574 (citation omitted).

                                               6
Whether a district court properly admitted evidence under Rule

404(b) is an evidentiary ruling that is reviewed for abuse of

discretion.      United States v. Gray, 405 F.3d 227, 238 (4th Cir.

2005).     An abuse of discretion occurs only when “the [district]

court acted arbitrarily or irrationally in admitting evidence.”

Penniegraft, 641 F.3d at 574.

            Here, Alvarez’s flight from law enforcement officers

eight days after the April 11 incident was relevant to prove

Alvarez’s lack of mistake.         Thus, because the evidence was both

relevant and not more prejudicial than probative, the district

court did not err in admitting it.

            Fifth, Alvarez argues that the district court erred in

applying     a   four-level    sentencing       enhancement      under   U.S.

Sentencing Guidelines Manual (USSG) § 2A2.2(b)(2)(B) (2009), for

use of a vehicle as a dangerous weapon, on the ground that it

punished Alvarez twice for the same factor because the fact that

he had used a vehicle as a dangerous weapon had already been

incorporated into the base offense level for aggravated assault.

Alvarez acknowledges that this court has expressly authorized

this enhancement in this situation.            United States v. Williams,

954 F.2d 204 (4th Cir. 1992).             Accordingly, the district court

did not err in applying the enhancement.

            Finally, Alvarez argues that the district court erred

in   applying    a   three-level   enhancement    under   USSG   § 3A1.2(b).

                                      7
Typically, the district court’s determination that a sentencing

enhancement is warranted is a factual determination reviewed for

clear error.       United States v. Thorson, 633 F.3d 312, 317 (4th

Cir.    2011).      However,        “when     a    party   does     not     preserve     an

argument in the district court, we review only for plain error.”

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                              Plain

error review is warranted in this case because although Alvarez

initially      objected     to   the    three-level        enhancement        under     USSG

§ 3A1.2(a),       counsel     for      Alvarez      specifically        withdrew       that

objection.       “To establish plain error, the appealing party must

show that an error (1) was made, (2) is plain (i.e., clear or

obvious), and (3) affects substantial rights.”                         Lynn, 592 F.3d

at 577.     Even if we assume the district court erred, Alvarez has

failed    to    establish     that     the    error      affected    his    substantial

rights.     The district court imposed a below-Guidelines sentence

and Alvarez has presented no evidence that the district court

would    have    sentenced       him    any       more   leniently      had      the   USSG

§ 3A1.2(a) enhancement not applied.

               Accordingly,      we     affirm        Alvarez’s        conviction       and

sentence on Count One.              We vacate the conviction on Count Two,

vacate    the     judgment,      and    remand       for    entry      of   an     amended

judgment.       We dispense with oral argument because the facts and

legal    contentions      are    adequately         presented     in    the      materials



                                              8
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                  AFFIRMED IN PART, VACATED IN PART,
                                  AND REMANDED




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