     Case: 12-41081      Document: 00512431960         Page: 1    Date Filed: 11/06/2013




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

                                                                                    FILED
                                                                               November 6, 2013
                                      No. 12-41081
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
v.

DIEGO JAVIER NUNEZ-GRANADOS,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           U.S.D.C. No. 7:12-CR-699-1


Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Diego Javier Nunez-Granados pleaded guilty to assaulting, resisting, or
impeding certain officers or employees in violation of 18 U.S.C. § 111 and to
being found in the United States subsequent to deportation. Pursuant to the
aggravated assault Sentencing Guideline, the district court sentenced Nunez-
Granados to 33 months’ imprisonment followed by a year of supervised release.
Nunez-Granados appeals herein. We VACATE and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 12-41081
                                      I.
      According to the presentence report (PSR), on May 2, 2012, Customs and
Border Protection agents were actively tracking a group of suspected
undocumented aliens and encountered multiple individuals, who attempted to
flee on foot. Agent Shaun Paquette grabbed one of the individuals, later
identified as Nunez-Granados, by the leg to prevent him from fleeing.
According to the PSR, Nunez-Granados became combative and kicked Agent
Paquette in the face multiple times while wearing shoes. In his report, Agent
Paquette stated that Nunez-Granados turned his head to look at him and then
kicked him in the face. After a brief struggle, Agent Paquette handcuffed and
arrested Nunez-Granados. Agent Paquette was taken to a nearby hospital,
where it was determined that he “sustained lacerations on the forehead and a
mild deviation to the nasal septum.” It was undisputed that Nunez-Granados
was wearing some type of footwear at the time. Agent Paquette offered a brief
victim statement, saying that he did not “think it was an accident.”
      Using the 2011 Guidelines Manual, the PSR recommended applying
§ 2A2.2, the aggravated assault Guideline, which provides a base offense level
of fourteen. See U.S.S.G. § 2A2.2. The PSR further recommended a five-level
enhancement under § 2A2.2(b)(3)(B) because the victim sustained serious
bodily injury, and a two-level enhancement under § 2A2.2(b)(6) because Nunez-
Granados was convicted under § 111(b). See U.S.S.G. § 2A2.2; 18 U.S.C. § 111.
      Nunez-Granados objected to the use of § 2A2.2, arguing that the offense
was not an aggravated assault; therefore, either § 2A2.3 (minor assault) or
§ 2A2.4 (obstructing or impeding officers) should apply. See U.S.S.G. §§ 2A2.2,
2A2.3, 2A2.4. He also objected to the enhancement for serious bodily injury.
      At sentencing, Nunez-Granados conceded that there was bodily injury,
but he objected to the application of the aggravated assault Guideline on the
basis that his footwear was not a dangerous weapon. He further argued that
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                                  No. 12-41081
the requisite intent to cause bodily harm was not present, as the kicking was
merely an effort to get free of Agent Paquette’s grasp. Rather, in the typical
case when kicking constitutes use of a deadly weapon, the assailant is standing
up and “kicking to the ground” or “stomping” on someone. The Government
conceded that the bodily injury was not serious but argued that § 2A2.2 should
still apply because Nunez-Granados’s assault involved the use of a dangerous
weapon with intent to cause bodily injury.
      The district court determined that the assault qualified as an aggravated
assault and that § 2A2.2 applied. See U.S.S.G. § 2A2.2. However, the court
imposed only a three-level adjustment for bodily injury rather than the
recommended five-level adjustment for a serious bodily injury.         The total
offense level was 19 and the guidelines range was 33 to 41 months. The district
court sentenced Nunez-Granados to concurrent terms of 33 months in prison
and one year of supervised release. Additionally, the district court stated that
it would have imposed the same sentence regardless of scoring under the
Sentencing Guidelines. Nunez-Granados appeals herein.
                                       II.
      “Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C. §
3553(a).” United States v. Williams, 520 F.3d 414, 422 (5th Cir. 2008) (citing
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005)). “Although
Booker rendered the Guidelines advisory, district courts are still required to
properly calculate the advisory guidelines range prior to imposing a sentence.”
Id. (citing Mares, 402 F.3d at 519); see also 18 U.S.C. § 3553(a)(4).         “In
calculating the guidelines range, the district court determines all facts relevant
to sentencing in the same manner as before Booker.” Williams, 520 F.3d at
422. “If the sentencing judge imposes a sentence within a properly-calculated
guideline range, the sentence is entitled to a nonbinding presumption of
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                                  No. 12-41081
reasonableness.” Id. (citing Rita v. United States, 551 U.S. 338, 351 (2007);
United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006)).
      This court reviews the district court’s application and interpretation of
the Sentencing Guidelines de novo and the district court’s factual findings for
clear error. United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.
2008) (citations omitted). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” United States v. Calbat, 266
F.3d 358, 364 (5th Cir. 2001).
      On appeal, Nunez-Granados argues that the district court erred in
applying § 2A2.2, the aggravated assault Guideline, and that instead the court
should have applied § 2A2.4, which pertains to obstructing or impeding
officers, or § 2A2.3, which pertains to simple assault. See U.S.S.G. §§ 2A2.2,
2A2.3, 2A2.4.
      Section 2A2.4 of the Sentencing Guidelines specifically applies to
obstructing or impeding officers, but it provides a cross-reference, stating that,
“[i]f the conduct constituted aggravated assault, apply § 2A2.2.” See U.S.S.G.
§ 2A2.4(c); see also U.S.S.G. App’x A (providing that the Guidelines applicable
to § 111 offenses are § 2A2.2 and § 2A2.4). Under the Guidelines, “[a]ggravated
assault means a felonious assault that involved (A) a dangerous weapon with
intent to cause bodily injury (i.e. not merely to frighten) with that weapon; (B)
serious bodily injury; or (C) an intent to commit another felony.” Id. at § 2A2.2,
cmt. n.1 (internal quotation marks omitted). The Government concedes that
this case did not involve serious bodily injury or an intent to commit another
felony. Thus, the question before this court is whether Nunez-Granados’s
offense involved a dangerous weapon with intent to cause bodily injury.
      For purposes of aggravated assault, the Guidelines define the term
“dangerous weapon” as an instrument that is “capable of inflicting death or
serious bodily injury,” as well as an object not capable of inflicting death or
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                                  No. 12-41081
serious bodily injury if it “closely resembles such an instrument,” or if “the
defendant used the object in a manner that created the impression that the
object was such an instrument.” Id. at § 1B1.1, cmt. n.1(D). In addition, the
term “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.” Id. at § 2A2.2, cmt. n.1.
      Other circuits have held that, “in the proper circumstances, almost
anything can count as a dangerous weapon, including walking sticks, leather
straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes
irons, and stink bombs.” United States v. Serrata, 425 F.3d 886, 910 (10th Cir.
2005) (quoting United States v. Dayea, 32 F.3d 1377, 1379 (9th Cir. 1994))
(citations and internal quotation marks omitted).
      Whether the defendant intended to use an instrumentality to cause
bodily injury, and thus as a dangerous weapon, is a finding of fact that this
court reviews for clear error. United States v. Morris, 131 F.3d 1136, 1138 (5th
Cir. 1997). Intent to do bodily harm “is to be judged objectively from the visible
conduct of the actor and what one in the position of the victim might reasonably
conclude.” United States v. Perez, 897 F.2d 751, 753 (5th Cir. 1990) (quoting
Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962)); see also United
States v. Ortegon, No. 01-51202, 2002 WL 1860281, at *1 (5th Cir. 2002)
(unpublished).
      Citing Serrata and United States v. Hatch, Nunez-Granados asserts that
the cases in which courts have found that kicking someone qualified as the use
of a dangerous weapon involved much more serious, repeated, and intentional
kicking by the defendant than was present in his own case. See, e.g., Serrata,
425 F.3d at 909-10 (upholding a dangerous weapon enhancement where
officers repeatedly kicked an inmate in the head with their boots); United
States v. Hatch, 490 F. App’x 136, 137 (10th Cir. 2012) (unpublished) (affirming
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                                  No. 12-41081
enhancement where the defendant pulled a man out of his car and kicked at
and “stomped on” his head repeatedly). By contrast, Nunez-Granados argues,
the kicking in this case is distinguishable because it happened when Agent
Paquette grabbed his leg; both he and the agent were on the ground; and
Nunez-Granados was “scrambling and trying to flee the scene.” We agree that
the facts and circumstances of Nunez-Granados’s case are distinguishable from
those set forth in Serrata and Hatch. See, e.g., Serrata, 425 F.3d at 909-10;
Hatch, 490 F. App’x at 137.
      The record reflects that when Agent Paquette grabbed Nunez-
Granados’s leg, Nunez-Granados kicked him multiple times in the face,
causing lacerations and a mild deviated septum. Both Agent Paquette and
Nunez-Granados agree that the injuries sustained by the agent did not rise to
the level of “serious bodily injury.” It is also clear from the record that the
injuries happened immediately after Agent Paquette grabbed Nunez-
Granados’s leg and the two men were near the ground as Nunez-Granados was
attempting to free himself from Agent Paquette’s grasp. While it is obvious
that Nunez-Granados chose an aggressive way to free himself from the agent’s
grasp, i.e, by kicking him in the face with a shoed foot, this act does not rise to
the level of the defendants’ conduct in Serrata and Hatch. The facts set forth
in Serrata featured several officers standing over an inmate stomping on his
head repeatedly with boots on. Serrata, 425 F.3d at 909-10. Similarly, Hatch
involved a defendant who pulled a man out of his car and stomped on his head
repeatedly as he lay on the ground motionless. Hatch, 490 F. App’x at 137.
Nunez-Granados’s conduct simply does not compare to the egregious
circumstances in these two cases. Additionally, there is scant case law in this
circuit providing guidance on the issue.
      Accordingly, we conclude that when Nunez-Granados’s “visible conduct”
is viewed objectively in light of what a reasonable victim might conclude, see
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                                      No. 12-41081
Perez, 897 F.2d at 753 (quoting Shaffer, 308 F.2d at 655), the district court’s
determination that he intended to cause bodily harm with a dangerous weapon
is not plausible in light of the record as a whole, see Calbat, 266 F.3d at 364
(5th Cir. 2001). 1 Consequently, we hold that the district court’s application of
the aggravated assault enhancement during sentencing was erroneous. 2 See
Gonzalez-Terrazas, 529 F.3d at 296; U.S.S.G. § 2A2.2.
                                          III.
       For the foregoing reasons, we VACATE and REMAND for resentencing.




       1 We do not hold herein that every situation where a defendant violates 18 U.S.C. §
111 by kicking an officer with shoes on will equate to the use of a dangerous weapon under
U.S.S.G. § 2A2.2, thereby warranting an aggravated assault enhancement under the
Guidelines. The determination of such will depend on the specific facts and circumstances of
each case.
       2 The district court’s error was not harmless because the government cannot show
that the district court: (1) considered the correct Guidelines range as well as the incorrect
range, and (2) provided reasons sufficient to justify the sentence imposed as a variance from
the correct Guidelines range. See, e.g., United States v. Bonilla, 524 F.3d 647, 656–59 (5th
Cir. 2008).


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