                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0120n.06

                                     Case Nos. 17-6391/18-5206

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Mar 14, 2019
UNITED STATES OF AMERICA,                              )                   DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )       ON APPEAL FROM THE UNITED
v.                                                     )       STATES DISTRICT COURT FOR
                                                       )       THE EASTERN DISTRICT OF
DAMON HICKMAN (17-6391); WILLIAM                       )       KENTUCKY
CURTIS HOWELL (18-5206),                               )
                                                       )
       Defendants-Appellants.                          )


       BEFORE: KEITH, STRANCH, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. This consolidated appeal arises from the

beating death of a pre-trial detainee at the Kentucky River Regional Jail (“KRRJ”), at the hands of

Damon Hickman and William Curtis Howell, KRRJ supervisory deputy jailers. Hickman pleaded

guilty to two counts of willful deprivation of constitutional rights (aiding and abetting), in violation

of 18 U.S.C. §§ 242 and 2, and one count of obstruction of justice, in violation of 18 U.S.C. § 1519,

and was sentenced to 120 months’ imprisonment. Howell was tried by a jury and convicted of two

counts of willful deprivation of constitutional rights (aiding and abetting), in violation of 18 U.S.C.

§§ 242 and 2, and sentenced to 120 months’ imprisonment. They each filed separate appeals.

       Hickman argues that the district court erred by granting the government’s motion for a

downward departure, but then failing to apply an actual reduction to his sentence. Hickman also
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


challenges the district court’s application of the following sentencing enhancements: (1) a four-

level sentencing enhancement for use of a dangerous weapon under U.S.S.G. § 2A2.2(b)(2)(B);

(2) a seven-level enhancement for inflicting permanent or life-threatening injuries under

§ 2A2.2(b)(3)(C); (3) a two-level enhancement for the victim being restrained under § 3A1.3;

(4) a two-level enhancement for obstruction of justice under § 3C1.1; and (5) a six-level

enhancement for acting under color of law under 2H1.1(b)(1). Howell argues that the district court

erred by: (1) failing to properly instruct the jury on the subjective aspect of deliberate indifference,

and (2) improperly permitting the jury to consider his falsification of two reports as evidence of

having a guilty conscience. We affirm as to both defendants.

                                        I. BACKGROUND

        On July 5, 2013, Larry Trent was arrested on a bench warrant and for driving under the

influence of alcohol, and was detained at the KRRJ. Trent was initially placed in general

population, but after he became confused and disoriented, jailers determined that he was detoxing

and moved him to a detox cell for closer observation. On the morning of July 9, 2013, Hickman

and Howell arrived for their 7:00 a.m. shift. Howell had a brief encounter with Trent, in which he

described Trent as “confused” and “talking out of his head” stating someone was “going to kill

[him] in the morning.” According to Hickman, Trent was not posing any danger or displaying any

signs of aggression, but Hickman “could tell [Trent] was withdrawing from something” because

he was “fidgeting” with screws.

        Believing Trent should not have a mat or other personal item in his cell at the time,

Hickman sought Howell’s assistance in removing them. As Hickman and Howell opened Trent’s

cell, Trent rushed towards them “flailing” his arms, striking Hickman. Hickman responded by

punching Trent twice in the face and head, and Howell began tasing Trent. Although Trent initially



                                                   2
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


went down, he immediately got up and hurried out of the cell towards the booking area of the jail.

Howell and Hickman followed behind, and Howell began applying the taser to Trent’s lower back.

When the taser did not appear to affect Trent, Hickman forced Trent to the ground. Eventually,

several other deputy jailers began assisting in restraining Trent.

          After Trent was subdued and lying on the floor, Hickman—standing 6’6 tall and weighing

nearly 400 pounds—kicked Trent in the torso, leaving an imprint of his boot in Trent’s body. With

the help of other deputy jailers, Hickman and Howell then carried Trent back to the detox cell. At

some point, Trent got a hold of Howell’s taser and began deploying it. Because the taser prongs

were still attached to Trent, he repeatedly shocked himself. The deputies immediately placed Trent

back on the floor outside of the detox cell and retrieved the taser. As several jailers restrained

Trent on the floor near the cell, Hickman and Howell continued to punch, kick and stomp Trent.

Specifically, Howell repeatedly punched Trent in the head and stomped on Trent’s arm, as

Hickman continuously shocked Trent with the taser gun. Either Howell or Hickman also kicked

Trent in the pelvic area. After placing Trent back in his cell, Howell stepped in the cell and began

“kick[ing] [Trent] in the face” with so much force that he left his shoe impression on Trent’s head.

Hickman and Howell then left Trent in the cell bleeding from an open wound to his face.1 Neither

sought medical assistance for Trent.

          Pursuant to KRRJ procedure, jailers must prepare an incident report whenever force is used

on an inmate, whether reasonable or not, and a taser report if a taser gun is deployed. The report

must include “why [the force] was used” and “any injuries that an inmate sustains” so that incidents

involving force “can be investigated and looked at” by the Department of Corrections. Some time

after assaulting Trent, Howell completed an incident and taser report. However, Howell failed to



1
    Much of the assault was captured on surveillance.
                                                  3
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


disclose that Hickman kicked Trent in the torso, that Howell punched Trent in the face, or that

Howell kicked Trent in the head after placing him back in his cell. Nor did Howell indicate in the

report that Trent was bleeding from an open head-wound and was otherwise injured. Howell also

called the jail administrator, Tim Kilburn, to report the incident. Howell testified that he informed

Kilburn that Trent “had a cut on his head.” However, Kilburn’s notes reflected that Howell

informed him that “no one had any injuries, except for [Howell]” having a “busted lip.” Hickman

then authored an observation log in which he falsely reported that he checked on Trent numerous

times and that Trent was “10-4”—an indication that Trent was okay.

       Hours after the assault, a KRRJ maintenance worker discovered Trent unresponsive in his

cell. Emergency responders arrived and noted large amounts of blood on the floor, walls, and

“sink area” of Trent’s cell, and multiple shoe and boot prints on Trent’s body. What “stuck out

the most” to the emergency technician was the large “boot print” on Trent’s chest. Trent was

transported to a local hospital, where he was pronounced dead. An autopsy revealed Trent’s

primary cause of death was hemorrhaging, caused by a displaced pelvic fracture. Blunt force

trauma to Trent’s head, trunk and extremities also contributed to his death. On October 27, 2015,

a grand jury indicted Hickman and Howell on two counts of aiding and abetting deprivation of

rights under color of law, in violation of 18 §§ U.S.C. 242 and 2, and one count of obstruction of

justice, in violation of 18 U.S.C. § 1519.

       Hickman’s Sentence

       Hickman pleaded guilty to each count in the indictment. At sentencing, the district court

adopted the recommendations in Hickman’s presentence investigation report (“PSR”). Hickman’s

PSR revealed that, for sentencing purposes, Hickman’s offenses would be “grouped together”

under count one of the indictment. Hickman’s PSR revealed a base offense level of 14 for count



                                                 4
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


one. See U.S.S.G. § 2H1.1; § 2A2.2. He received a four-level increase for use of a dangerous

weapon, see § 2A2.2(b)(2)(B), and a seven-level increase because the victim sustained life-

threatening injuries, see 2A2.2(b)(3)(C). However, because the “cumulative adjustments from

application of subdivisions (2) and (3) shall not exceed 10 levels,” see § 2A2.2(b)(3)(E), the district

court adjusted Hickman’s offense level to 10, bringing his total base offense level to 24. From

there, he received a six-level increase because the offense was committed under color of law, see

§ 2H1.1(b)(1); a two-level increase because the victim was restrained in the course of conduct, see

§ 3A1.3; a two-level increase for obstruction of justice, see § 3C1.1; and a three-level reduction

for acceptance of responsibility, for an adjusted offense level of 31.

       Hickman objected to each enhancement, but the district court overruled his objections. The

district court adopted the PSR’s advisory sentencing guideline range of 108 to 135 months’

imprisonment. The government moved for a four-level upward variance based on the seriousness

of Hickman’s offense, and also for a 35% downward departure from the varied range based on

Hickman’s cooperation in the case.2 As to the government’s request for an upward variance, the

district court stated that although it would “ordinarily . . . vary upward” it was “not going to do

that” because Hickman “accepted responsibility for his actions and has cooperated with the

government.” The court then addressed the government’s request for a downward departure,

which it also denied.     In doing so, the court noted Hickman’s cooperation, but ultimately

determined that, because of the “severity of the crime,” it was “not persuaded that [Hickman]

should be able to cooperate his way out of the hole that he has dug in this case.” The court

sentenced Hickman to 126 months’ imprisonment.



2
 Hickman was also indicted on related charges stemming from an assault on two other inmates.
As part of Hickman’s plea agreement, the government agreed to dismiss the unrelated indictment,
but noted it would seek an upward variance based on the unrelated conduct.
                                                  5
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       Howell’s Conviction and Sentence

       Howell proceeded to trial on two counts of deprivation of constitutional rights under color

of law, in violation of 18 U.S.C. §§ 242 and 2: one for deliberate indifference to Trent’s medical

needs, and the other for depriving Trent of his constitutional right to be free from excessive force.

Before closing arguments, the district court held a jury instruction conference. As relevant here,

Howell objected to two proposed jury instructions: (1) the proposed jury instruction stating that

the jury may consider as evidence of consciousness of guilt that he omitted information from the

taser and incident report, and (2) a portion of the deliberate indifference instruction stating that

“[j]ail officials who actually know of a substantial risk to pretrial detainees’ health or safety are

not deliberately indifferent if the jail official responds reasonably.”

       With respect to the first, Howell argued that “an innocent person may omit certain

information for some other reason.” The district court overruled Howell’s objection, finding that

“there was evidence that information was omitted” and that Howell was free to argue that the

omission was “by mistake or [that it] meant nothing.”

       With respect to the second, Howell’s challenge was successful. He argued that the jury

instruction improperly lowered the state of mind to a “negligence” standard for deliberate

indifference, where a heightened standard was required. The district court sustained Howell’s

objection and modified that portion of the instruction as follows:

       Deliberate indifference requires that the defendant knew of and disregarded a
       substantial risk of serious of serious harm to [the detainee’s] health and safety, even
       if the harm ultimately was not averted.

Other than requesting the court to add that “[m]ere negligence is insufficient to prove . . . that

definition,” Howell had “[no] more objections” to the instruction. The jury convicted Howell on

both counts, and the district court sentenced him to 120 months’ imprisonment.



                                                   6
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


                                         II. ANALYSIS

               a. Hickman’s Sentencing Challenge

       On appeal, Hickman argues that the district court erred by granting the government’s

motion for a downward departure but then failing to apply an actual reduction to his sentence. He

also challenges the district court’s application of five sentencing enhancements: (1) a four-level

enhancement for use of a dangerous weapon under § 2A2.2(b)(2)(B); (2) a seven-level

enhancement for inflicting permanent or life-threatening injuries under § 2A2.2(b)(3)(C); (3) a

two-level enhancement for finding that the victim was restrained under § 3A1.3; (4) a two-level

enhancement for obstruction of justice under § 3C1.1 ; and (5) a six-level enhancement for acting

under color of law under 2H1.1(b)(1). We disagree with Hickman as to each challenge.

       We review the procedural reasonableness of a district court’s sentence for abuse of

discretion.   Gall v. United States, 552 U.S. 38, 51 (2007).        “In reviewing for procedural

reasonableness, a district court abuses its discretion if it commits a significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range” or by “selecting a

sentence based on clearly erroneous facts . . . .” United States v. Callahan, 801 F.3d 606, 626 (6th

Cir. 2015) (quoting United States v. Johnson, 640 F.3d 195, 201–02 (6th Cir. 2011)) (internal

quotation marks omitted). We accord a “rebuttable presumption of reasonableness” to a sentence

that is within the advisory Guidelines range. Id. at 627 (quoting United States v. Kirchhof,

505 F.3d 409, 413 (6th Cir. 2007)). We review the district court’s interpretation of the Guidelines

de novo, and its application of the Guidelines for clear error. United States v. Duke, 870 F.3d 397,

401 (6th Cir. 2017).

       Downward departure. We begin with Hickman’s argument that the district court erred by

granting the government’s request for a downward departure but failing to reduce his sentence.



                                                 7
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


Hickman’s argument fails for one main reason: the district court denied the government’s request

for a downward departure. In response to the government’s request for departure, the district court

stated it “was not persuaded that [Hickman] should be able to cooperate his way out of the hole he

has dug in this case” and denied the government’s request. Because our review of a district court’s

denial of a downward departure is limited to instances where the district court mistakenly believed

it lacked the discretion to grant a departure, a challenge Hickman does not raise, we lack

jurisdiction to consider this challenge. See United States v. Mapp, 311 F. App’x 738, 740 (6th Cir.

2008) (“[W]e shall not review decisions of a district court not to depart downward unless the record

reflects that the district court was not aware of or did not understand its discretion to make such a

departure.” (internal quotation mark omitted)).

       Dangerous Weapon Enhancement.              Next, Hickman challenges the district court’s

application of a four-level enhancement under § 2A2.2(b)(2)(B), finding that Hickman’s boot was

a dangerous weapon. We find no error. The Guidelines define a “dangerous weapon” as “an

instrument capable of inflicting death or serious bodily injury.” § 1.B1.1, n.1(E). This “includes

any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice pick) if such

an instrument is involved in the offense with the intent to commit bodily injury.” § 2A2.2, n.1.

Employing a “‘functional approach’ to ‘what constitutes a dangerous weapon’ under the

Guidelines,” we recognize that, “in the proper circumstances, almost anything can count as a

dangerous weapon,” including—as relevant here—“tennis shoes” and “rubber boots.” Callahan,

801 F.3d at 628 (quoting United States v. Tolbert, 668 F.3d 798, 802–03 (6th Cir. 2012)).

       “The ultimate inquiry is whether a reasonable individual would believe that the object is a

dangerous weapon [i.e., capable of inflicting serious bodily injury] under the circumstances.”

Tolbert, 668 F.3d at 801 (quoting United States v. Rodriguez, 301 F.3d 666, 668 (6th Cir. 2002)).



                                                  8
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


For instance, in Duke, we held that a table was a dangerous weapon where the defendant struck

the victim’s head upon it. 870 F.3d at 404. We explained that the “manner [in which the table]

was used,” along with the “bruising” and “abrasion” suffered by the victim, “illustrat[ed] that [the

defendant] used the table in a dangerous manner.” Id. at 402. The same is true here. Hickman

weighed nearly 400 pounds and wore a size 15 boot; he admittedly kicked Trent in the torso with

enough force that his boot-print remained embedded in Trent’s body hours later. A reasonable

individual would undoubtedly believe that Hickman’s large shoe size, when combined with Trent’s

vulnerable position of lying on the floor, was “capable of inflicting serious bodily injury.” Tolbert,

668 F.3d at 801. Even more, the bruising and boot print on Trent’s body indicates that Hickman

“used [his boot] in a dangerous manner.” Duke, 870 F.3d at 402. Thus, the district court did not

err in finding that Hickman’s boot was a dangerous weapon.

       In arguing that the dangerous weapon enhancement should not apply, Hickman contends

that “the boot was incidental” and just “happened to be on his foot when [he delivered] the kick

[to Trent].” Hickman’s Br. at 12. Hickman contends that because it was only “one kick” and the

boot is not “steel toed” or “worn with intent to do damage,” it cannot be considered a dangerous

weapon. Hickman Br. at 12. He is mistaken. Whether his boot was steel toed, or whether he wore

it with the intent to use it as a dangerous weapon is of no moment to our analysis. Rather, because

a reasonable person would have known that Hickman’s boot “was capable of causing serious

bodily injury,” and he used it “in a dangerous manner,” his boot was a dangerous weapon for

purposes of the four-level enhancement under § 2A2.2(b)(2)(B).3



3
 Hickman relies on the Fifth Circuit’s decision in United States v. Nunez-Granados, 546 F. App’x
483 (5th Cir. 2013), where the court held the defendant’s shoe was not a dangerous weapon.
Unlike here, the defendant in Nunez-Granados kicked the officer as he “attempt[ed] to free himself
from [the officer’s] grasp.” This case is easily distinguishable as Hickman used his boot, not to
“free himself,” but to inflict harm upon Trent.
                                                  9
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       Permanent or Life-Threatening Injury Enhancement. Hickman contends that the district

court erred in applying the seven-level enhancement under § 2A2.2(b)(3)(C).             Pursuant to

§ 2A2.2(b)(3)(C), a seven-level enhancement is required “[i]f the victim sustained [permanent or

life-threatening] bodily injury.”     A life-threatening injury includes an “injury involving a

substantial risk of death.” § 1B1.1. n.1(K). As relevant conduct, a court may consider “all acts

and omissions committed, aided, abetted, counseled . . ., or willfully caused by the defendant,”

including “all harm that resulted from these acts.” United States v. Settle, 414 F.3d 629, 632 (6th

Cir. 2005) (quoting § 1B1.3(a)(1)).

       Hickman argues that “there is no proof at all that [he] was the individual who inflicted [the]

injuries [upon Trent]” because Trent died from a pelvic fracture on his left side, but Hickman

kicked Trent in his upper right side. Thus, he contends the district court improperly enhanced his

sentence for causing life-threatening injuries. Hickman Br. at 13. This argument fails for two

reasons. First, the record contradicts Hickman’s assertion that his individual conduct did not

contribute to Trent’s death. Hickman admitted in his plea agreement that he or Howell “kicked

[Trent] in the pelvic area”—the primary cause of Trent’s death. Moreover, blunt force trauma to

Trent’s head, trunk and extremities also contributed to his death. Hickman admits to “kick[ing]

[Trent] without justification in the torso,” to “drive tas[ing]” Trent while he was subdued, and to

“continu[ing] to assault” Trent as he lay on the floor. This alone supports the district court’s

finding that Hickman’s direct actions resulted in Trent’s life-threatening injuries. Second, even if

Hickman did not directly cause Trent’s life-threatening injuries, Hickman aided and abetted

Howell’s assault on Trent. Relevant conduct for a sentencing enhancement includes “all acts . . .

aided [and] abetted.” § 1B1.3(a)(1). Hickman likewise acknowledges in his plea agreement that




                                                10
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


he aided and abetted Howell as Howell punched Trent in the face, stomped on his arm, and kicked

him in the face. Thus, we find no error by the district court.

       Physically Restrained Enhancement. Hickman also argues that § 3A1.3, which provides

for a two-level enhancement “[i]f [the] victim was physically restrained in the course of the

offense,” is inapplicable because Trent was “still reaching up with his arms, and kicking with his

legs,” and therefore was not restrained. Hickman Br. at 14. We disagree. The Guidelines define

“physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or

locked up.” U.S.S.G. § 1B1.1 n.1(L). In United States v. Coleman, we explained that “force” is to

“compel[] [one’s actions] by physical means or by legal requirement.” 664 F.3d 1047, 1049 (6th

Cir. 2012) (quoting Black’s Law Dictionary 718 (9th ed. 2009)).

       Hickman again focuses on the single kick to Trent in arguing that Trent was not restrained

because he was “reaching” and “kicking.” But as discussed, the district court may consider

Hickman’s individual acts as well as those of Howell that Hickman aided and abetted. Hickman

concedes in his plea agreement that “[a]s [Trent] was being restrained and was under control,

Howell punched [Trent] in the head and stomped on [Trent’s] arm,” while Hickman tased Trent.

Hickman also testified that “after Trent was [no longer] a threat and was being physically

restrained,” Howell “hit [Trent] a few times in the face.” Accordingly, the record supports the

district court’s finding that Trent was physically restrained for purposes of the sentencing

enhancement under § 3A1.3.4



4
 Hickman relies on a Fifth Circuit case, United States v. Clayton, 172 F.3d 347 (5th Cir. 1999), in
arguing that the restraint enhancement should not apply in excessive-force cases. In doing so,
Hickman relies on a single sentence from Clayton: “the lawfulness of the defendant’s restraint of
the victim at the time the unreasonable or excessive force occurs is not a concern implicated by
U.S.S.G. § 3A1.3.” However, Hickman reads this sentence out of context. In Clayton, the victim
was lawfully handcuffed at the time of the assault. Id. at 353. The Fifth Circuit held that the


                                                 11
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       Double Counting. Finally, Hickman asserts that the district court improperly double

counted two sentencing enhancements. By penalizing him twice for the same conduct, he argues,

the district court violated his right to be free from double jeopardy. Hickman’s double jeopardy

claim fails as a matter of law. It is well-established that “double jeopardy principles generally

have no application in the sentencing context ‘because the determinations at issue do not place a

defendant in jeopardy for an offense.’” United States v. Wheeler, 330 F.3d 407, 413 (6th Cir.

2003) (quoting Monge v. California, 524 U.S. 721, 728 (1998)). We have previously explained

that “[t]his rule also applies to sentencing enhancements, which constitute increased penalties for

the latest crime, rather than ‘a new jeopardy or additional penalty for the earlier crimes.’” Id.

(quoting Monge, 524 U.S. at 728). Given that Hickman’s challenge is to the district court’s

application of sentencing enhancements, his double jeopardy claim fails.

       Although framed as a double jeopardy violation, Hickman’s arguments more accurately

raise issues of impermissible double counting by the district court. “Impermissible ‘double

counting’ occurs when precisely the same aspect of a defendant’s conduct factors into his sentence

in two separate ways.” Duke, 870 F.3d at 404 (quoting United States v. Farrow, 198 F.3d 179,

193 (6th Cir. 1999) (superseded on other grounds)). However, “not all instances of double

counting are impermissible.” Wheeler, 330 F.3d at 413. “[A] court may impose two enhancements

arising from the same conduct, provided the enhancements ‘penalize distinct aspects of [a

defendant’s] conduct and distinct harms.’” United States v. Sweet, 776 F.3d 447, 451 (6th Cir.

2015) (quoting United States v. Smith, 516 F.3d 473, 476 (6th Cir. 2008)).



enhancement for restraint was appropriate despite the victim being lawfully restrained, explaining
that “the lawfulness of the defendant’s restraint of the victim at the time the unreasonable or
excessive force occurs is not a concern implicated by U.S.S.G. § 3A1.3.” Id. In other words, the
enhancement is appropriate whether or not the officer’s restraint was lawful. This does not help
Hickman.
                                                12
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       This argument fares no better for Hickman. As discussed, Hickman pleaded guilty to two

counts of aiding and abetting deprivation of civil rights under color of law, in violation of 18 U.S.C.

§§ 242 and 2, and one count of obstruction of justice, in violation of 18 U.S.C. § 1519. Hickman

points to two instances of alleged double counting: (1) the district court’s application of a two-

level enhancement under § 3C1.1 for obstruction of justice, and (2) the district court’s application

of the six-level enhancement under § 2H1.1(b)(1)(B) for acting under color of law. As to the first,

Hickman contends that, because he was convicted of obstruction of justice, in violation of

18 U.S.C. § 1519, the district court erred by also applying the two-level enhancement for

obstruction of justice under § 3C1.1 based on the same conduct for which he was convicted. We

disagree with Hickman. Section 3C1.1 provides for a two-level enhancement “[i]f . . . the

defendant willfully obstructed or impeded . . . the . . . investigation,” and “the obstructive conduct

related to . . . the defendant’s [underlying] offense or conviction.” As relevant here, the

accompanying comments for § 3C1.1 explain that “if the defendant is convicted of [an obstruction

offense],” the enhancement “is not to be applied to the offense level for that offense” unless

“significant further obstruction occurred.” § 3C1.1 cmt. n.7 (emphasis added).

       Hickman reads this to mean the two-level enhancement cannot apply if he is convicted of

the underlying offense and the obstruction offense.         He has misread the Guidelines.        The

commentary instructs that the enhancement “is not to apply to the [obstruction] offense level.”

§ 3C1.1 n.7. But we have explained that when an obstruction offense is grouped together with

other counts for purposes of determining the defendant’s base offense level, “the obstruction of

justice enhancement applies to the grouped counts . . . .” United States v. Pego, 567 F. App’x 323,

330 (6th Cir. 2018) (citing § 3C1.1 n.8).




                                                  13
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       This is precisely what the district court did here. As reflected in Hickman’s PSR—which

the district court adopted—the court grouped Hickman’s obstruction of justice offense with his

underlying offense for violation of 18 U.S.C. § 242. This established a base offense level of 14

for Hickman’s violation of § 242 alone. The district court then applied the two-level enhancement

for obstruction of justice. Thus, the district court’s application of the two-level enhancement does

not constitute impermissible double counting because Hickman’s “specific conduct for [falsifying

records] did not factor into [his] sentence in two separate ways.” See United States v. Moon, 513

F.3d 527, 543 (6th Cir. 2008) (upholding the district court’s application of the obstruction of justice

enhancement under § 3C1.1 where the district court grouped the defendant’s obstruction count

with the underlying offense).

       Similarly unavailing is Hickman’s challenge to the district court’s application of a six-level

enhancement under § 2H1.1(b)(1)(B) for acting under color of law. Section 2H1.1(b)(1) provides

for a six-level enhancement if “the defendant was a public official at the time of the offense” or

“the offense was committed under color of law.” Hickman contends that the district court’s

application of this enhancement was impermissible double counting because acting under color of

law is already factored into his underlying offense under 18 U.S.C. § 242. Thus, Hickman argues

he was punished twice for acting under color of law. We disagree.

       In United States v. Smith, 196 F.3d 676, (6th Cir. 1999), we considered a similar challenge

to the district court’s application of a sentencing enhancement where the conduct warranting the

enhancement also constituted an element of the defendant’s underlying offense. In Smith, we

found the Fifth Circuit’s reasoning in United States v. Kings, 981 F.2d 790, 793 (5th Cir. 1993),

persuasive that a district court does not engage in double counting by applying an enhancement




                                                  14
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


when the Guideline establishing the base offense level—as opposed to the statute establishing

criminal liability—does not take the conduct into account. Id. at 683–84.

       In Kings, the defendant was convicted of assaulting a federal officer in violation of

18 U.S.C. § 111. Id. at 793. Like here, the Guideline for the defendant’s offense contained a

cross-reference to § 2A2.2 for aggravated assault as the base offense level. Id. Although an

element of 18 U.S.C. § 111 included the victim being a government official, the district court still

applied a three-level enhancement pursuant to § 3A1.2 because the victim was an officer. Id. at

792–93.    Rejecting the defendant’s challenge to the enhancement as impermissible double

counting, the Fifth Circuit explained that, because the defendant’s “conduct constituted aggravated

assault” by cross-reference to § 2A2.2, and “the base offense level for [aggravated assault] does

not reflect the fact that the victim was a government official,” the district court did not err by

“increas[ing] the assault group offense level for an official victim.” Id. at 793 (emphasis in

original). See also United States v. Webb, 252 F.3d 1006, 1010 (8th Cir. 2001) (upholding a six-

level enhancement under § 2H1.1(b)(1) for acting under color of law although the defendant was

convicted under § 242); United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000) (same).

          The same is true here. Indeed, acting under color of law is an element of Hickman’s

underlying offense. However, as Kings instructs, the relative inquiry is not whether the elements

of Hickman’s offense include the same conduct as the enhancement, but whether “the base offense

level” for which the defendant is sentenced includes the same conduct as the enhancement. Kings,

981 F.2d at 793. Hickman’s base offense level does not include acting under color of law. Recall

that to determine Hickman’s base offense level of 14, the district court cross-referenced U.S.S.G.

§ 2A2.2 (aggravated assault). Like Kings, “the base offense level for [aggravated assault] does

not reflect the fact that [Hickman acted under color of law].” Kings, 981 F.2d at 793. We have



                                                15
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


previously explained that “the harm to be punished, and deterred, by the ‘under color of law’

enhancement is the misuse of power by one with governmental authority.” United States v.

McCoy, 480 F. App’x 366, 373 (6th Cir. 2012). Hickman’s base offense level does not—by

itself—“penalize [the] distinct aspects of [Hickman’s] conduct and distinct harms” that §

2H1.1(b)(1)(B) set out to punish. Sweet, 776 F.3d at 451. Thus, because acting under color of law

factored into Hickman’s sentence only through the six-level enhancement under § 2H1.1(b)(1),

the district court did not err.

                b. Howell’s Challenge

        Howell raises two challenges on appeal: (1) that the district court improperly instructed the

jury on the subjective element of deliberate indifference; and (2) that the district court improperly

instructed the jury that it may consider his falsification of two reports as evidence of consciousness

of guilt. We address each in turn.

        “We review challenges to a district court’s jury instruction for abuse of discretion.” United

States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010). The district court does “not abuse its discretion

unless the jury charge ‘fails accurately to reflect the law.’” United States v. Ross, 502 F.3d 521,

527 (6th Cir. 2007) (quoting United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999)).

Considering the jury instruction “as a whole,” reversal is proper “only if the instructions . . . were

confusing, misleading, or prejudicial.” Ross, 502 F.3d at 527 (quoting United States v. Harrod,

168 F.3d 887, 892 (6th Cir. 1999)). Objections not properly preserved, however, are reviewed for

plain error. United States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008). “In the context of

challenges to jury instructions, ‘[p]lain error requires a finding that, taken as a whole, the jury

instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.’” Id.

(quoting United States v. Newsom, 452 F.3d 593, 605 (6th Cir. 2006)).



                                                 16
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


       Deliberate Indifference Jury Instruction. Howell first challenges the district court’s jury

instruction on the subjective element of deliberate indifference. Howell objected to part of the

district court’s proposed instruction that related to the subjective component of deliberate

indifference, arguing that it implied a negligence standard when a higher standard was warranted.

The district court agreed with Howell, sustained the objection, and modified the instruction. Based

on that modification, Howell indicated he had no further objection to the deliberate indifference

instruction. Because Howell made no objection to the modified instruction, his claim is not

properly preserved, and we review his challenge for plain error. 5 Castano, 543 F.3d at 833.

       Deliberate indifference has both an objective and subjective component. Rhinehart v.

Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (citation omitted). The subjective component requires

showing that the defendant had actual knowledge that a “substantial risk” of serious harm existed,

whereas the objective inquiry requires a showing that an inmate had a “serious medical need.” Id.

at 737–38. With respect to the objective component, the district court instructed the jury that it

was required to determine whether:

       (A) Larry Trent’s medical need was serious, meaning it posed a substantial risk of
       serious harm to his health. A serious medical need is a one for which treatment has
       been recommended or that is so obvious that even a person without medical training
       would easily recognize that medical care is needed. A defendant’s state of mind
       about the seriousness of the injury is not to be considered. Rather you must ask
       yourself whether a reasonable person in the same situation as the defendant would
       have viewed Larry Trent’s injuries as being a serious medical need[.]




5
  Howell contends that he objected to the entire deliberate indifference instruction, and thus it was
properly preserved. We disagree. Howell’s objection related entirely to the portion of the jury
instruction that referenced a negligence standard. Moreover, after the district court modified the
jury instruction Howell indicated he had no further objections. Therefore, this argument fails. See
United States v. Semrau, 693 F.3d 510, 526–527 (6th Cir. 2012) (“[A] party who objects to any
portion of the instructions or to a failure to give a requested instruction must inform the court of
the specific objection and the grounds for the objection before the jury retires to deliberate.”
(quoting Fed. R. Crim. P. 30(d))).
                                                 17
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


The court then instructed the jury as to the subjective prong, stating:

        (B) If you find that Larry Trent had a serious medical need, the government must
       then prove that that the defendant was deliberately indifferent to that need. This
       is found only if the government proves:

       a. that the defendant was aware of or perceived facts from which to infer that a
       substantial risk of serious harm to Larry Trent existed;

       b. that the defendant drew the inference that a substantial risk of serious harm
       existed, meaning the defendant was actually aware of or knew that Larry Trent
       had a serious medical need; and;

       c. that the defendant chose to disregard that substantial risk to Larry Trent.

       Mere negligence is insufficient to prove deliberate indifference. Deliberate
       indifference requires that the defendant knew of and disregarded a substantial risk
       to Larry Trent’s health and safety, even if the harm ultimately was not averted.

       Howell contends that the district court “injected contradiction and confusion into the

instructions” by stating that Howell’s state of mind about the seriousness of the injury should not

be considered, and moments later instructing the jury to consider Howell’s mental state as to the

subjective prong. Howell Br. at 16. He argues that, because the district court did not “properly

explain the two-part test or give any other context,” the instruction was “confusing, misleading

and prejudicial.” Howell’s Br. at 16. We disagree. The district court first explained the objective

element, instructing the jury that Howell’s “state of mind about the seriousness of the injury is not

to be considered.” The district court then proceeded to instruct the jury as to the subjective

element, explaining that it must find that Howell was “actually aware of” or “knew” that a

substantial risk of serious harm to Trent’s health existed, but that he “chose to disregard” it. The

instructions, viewed as a whole, correctly state the law concerning deliberate indifference. We

find no error, much less plain error.

       Concealment of Evidence Jury Instruction. We likewise reject Howell’s argument that the

district court erred by instructing the jury that it could consider Howell’s omission from the

                                                 18
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


incident and taser reports as evidence of Howell’s guilty conscience. Howell argues that (1) the

district court erred in giving this instruction because the evidence failed to support the four

inferences required before a court may issue a “flight” instruction; and (2) the instruction was not

warranted because there was insufficient evidence in the record to establish that he intentionally

omitted information from the reports. We disagree.

       Sixth Circuit Pattern Jury Instruction 7.14 permits a court to instruct a jury that it may

consider evidence of “[f]light, [c]oncealment of [e]vidence, [or] [f]alse [e]xculpatory [s]tatements”

as circumstantial evidence that the defendant “thought he was guilty and was trying to avoid

punishment.” The jury may, “[o]n the other hand,” conclude that the defendant’s conduct was the

result of “some other [innocent] reason.” Pattern Jury Instruction 7.14. Over Howell’s objection,

the district court instructed the jury that “if [it] believed that [Howell] omitted information from

written reports,” it could consider the omission as evidence that “he thought he was guilty and was

trying to avoid punishment” or that the information was omitted “for some other [innocent]

reason.” Howell contends the district court was first required to determine the probative value of

the evidence by employing a four-part test establishing an inference:

       (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt;
       (3) from consciousness of guilt to consciousness of guilt concerning the crime
       charged; and (4) from consciousness of guilt concerning the crime charged to actual
       guilt of the crime charged.

United States v. Dillon, 870 F.2d 1125, 1127 (6th Cir. 1989) (citing United States v. Myers,

550 F.2d 1036, 1049 (5th Cir. 1977)). However, our application of this four-part test has been

limited to cases involving actual flight. See United States v. Dye, 538 F. App’x 654, 664–65 (6th

Cir. 2013) (applying the four-part test where the defendant borrowed his girlfriend’s car to leave

town shortly after learning authorities were looking for him); Dillon, 870 F.2d at 1126-27

(applying the four-part test where the defendant fled after learning that his co-conspirator planned


                                                 19
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


to testify before the grand jury). That each of the four inferences explicitly reference “flight”

further illustrates that its application is limited to cases involving actual flight.

          The district court did not give a flight instruction in this case. Rather, the court instructed

the jury on concealment of evidence, likewise provided by the Sixth Circuit Pattern Jury Instruction

7.14. Contrary to Howell’s assertion, we have not applied an inference test in cases where a

defendant suppresses or conceals evidence.6 Because the district court did not give a flight

instruction, it was not required to consider the four-part test.7

          Howell argues next that there was insufficient evidence that he omitted information from

the incident reports. This argument is equally unavailing. In a per curiam decision in United States

v. Singleton, we upheld the district court’s concealment-of-evidence instruction as to the

defendant’s fabrication of evidence, explaining that—with adequate evidence in the record—such

instruction is proper where the court “sufficiently caution[s] the jury” to consider the suppression

of evidence, “together with other evidence” as to a defendant’s “guilt or innocence.” 904 F.2d 37,

8-9 (6th Cir. 1990) (per curiam) (citing United States v. Scheibel, 870 F.2d 818, 822 (2d Cir.

1989)).

          The evidence amply supports the district court’s instruction. Howell testified that he was

required to complete an incident report anytime force was used, including “why [the force] was

used” and “any injuries that an inmate sustain[ed].” Howell also knew that the purpose of the



6
 Howell relies primarily on two out-of-circuit cases, United States v. Beahm, 664 F.2d 414 (4th
Cir. 1981), and United States v. Silverman, 861 F.2d 571 (9th Cir. 1988), in arguing that the four-
inference test should apply in this context. Aside from them being non-binding, they are also
easily distinguishable. Unlike here, they both involved allegations of actual flight.
7
 At any rate, even if the four-part test had applied in this case, Howell’s conduct—which included
making materially false statements about the incident within hours of the assault—would have
been sufficient to support each of those inferences.


                                                    20
Case Nos. 17-6391/18-5206, United States v. Hickman, et al.


reports was to “investigat[e]” incidents involving force. Yet, Howell omitted crucial information

from the incident and taser reports, including that he and Hickman repeatedly kicked, punched and

tasered Trent, and that Trent was visibly injured.8 Thus, there was sufficient evidence for the jury

to infer that Howell omitted this information from the reports because “he thought he was guilty

and was trying to avoid punishment.” Sixth Circuit Pattern Jury Instruction 7.14. Moreover, the

district court also instructed the jury that it could consider that the information was omitted “for

some [innocent] reason.” We find no error.

       Undeterred, Howell argues consciousness of guilt cannot be inferred because he completed

the reports before learning of Trent’s condition and before he was “aware of the specific charges

against him.” But even if Howell were not aware of the full extent of Trent’s injuries or of any

charges against him, Howell was aware of the amount of force used, that Trent was injured, and

that information in the reports might be provided to the Department of Corrections to investigate.

The evidence adequately supports the jury instruction.

                                       III. CONCLUSION

       For these reasons, we affirm.




8
 Though Howell testified that he simply “forgot” to report the information, the jury was free to
consider this testimony as evidence of “some [innocent] reason” for his omission. But the jury
rejected his testimony.
                                                21
