             Case: 14-14505    Date Filed: 06/26/2015   Page: 1 of 16




                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14505
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:14-cr-20387-KMM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JAMES COLUMBUS CLAYTON, JR.,

                                                             Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (June 26, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      In this direct appeal, James Columbus Clayton, Jr., appeals his conviction

and 24-month sentence for assault on a federal employee resulting in bodily injury,
               Case: 14-14505     Date Filed: 06/26/2015     Page: 2 of 16


in violation of 18 U.S.C. § 111(a)(1), (b). Following a careful review of the record

and briefs, we affirm.

                                 I. BACKGROUND

A.      Offense Conduct

        On May 19, 2014, at about 12:50 p.m., defendant Clayton, a 64-year-old

Army veteran,1 arrived at the Veterans Administration Medical Center (“VAMC”)

in Miami, Florida, for a 1 p.m. appointment at the pain clinic. Clayton was under

treatment to manage pain resulting from claimed injuries to his back, hip, and neck

while in the Army.

        Upon arrival, Clayton inquired whether his appointment would be on time.

An office manager, who also served as the receptionist, told Clayton that the

doctors were running a few minutes behind schedule.

        The office manager checked Clayton in and provided him a pager to alert

him when the doctor was ready. A nurse triaged Clayton. Clayton left the

reception area.

        Fifteen to twenty minutes later, Clayton returned, upset that he had not yet

been called to see the doctor. The office manager instructed Clayton to go ask the

nurse how much longer the wait would be, and Clayton again left the reception

area.

        1
        Clayton served in the Army from October 1969 to May 1972 but was never deployed
overseas.
                                            2
              Case: 14-14505    Date Filed: 06/26/2015   Page: 3 of 16


      A few minutes later, Clayton came back to the reception area, acting “very

belligerent and very combative.” He began yelling and cursing profusely,

demanding to be seen by a doctor, and complaining that the doctors expected him

to be on time even though “the mother fucking doctor always [is] late.” The nurse

told Clayton to go into the hallway.

      Concerned for her own safety and that of the nurse, the office manager

retreated into her office, closed and locked the door, pressed the panic buttons on

her computer, and called the police. In the hallway, Clayton continued to curse

and speak in a raised voice.

      Dr. Constantine Sarantopoulos was in an exam room with a patient and a

resident physician when he heard Clayton “yelling and screaming” obscenities in

the hallway. Dr. Sarantopoulos stepped out into the hallway to investigate the

situation, at which point Clayton, who appeared to be “very, very angry,” started

directing obscenities at Sarantopoulos. Clayton began to move toward Dr.

Sarantopoulos in a threatening manner, causing Sarantopoulos to retreat into the

exam room for protection.

      As Dr. Sarantopoulos tried to close the door to the examination room,

Clayton reached the door and attempted to force his way inside. Clayton pushed

the door with significant force into Dr. Sarantopoulos’s right arm and shoulder.




                                          3
              Case: 14-14505     Date Filed: 06/26/2015   Page: 4 of 16


Dr. Sarantopoulos managed to close and lock the door, activated a panic alarm, and

told the resident physician to call the police.

      At this point, Clayton was kicking and banging on the exam room door in an

effort to enter the room. Clayton kicked the door with enough force to leave shoe

marks. Clayton also slammed the entire weight of his body against the door.

      When the police arrived and told Clayton to leave the VAMC, Clayton

continued to act combative and speak in a raised tone, stating that “he wasn’t afraid

of no mother fucking cop,” that “[the police] can’t do shit to him,” and that “he

wasn’t going to go until he had been seen by the doctor.”

      Clayton then lunged at one of the police officers, who sprayed Clayton with

pepper spray. Clayton became angrier, started “[going] after anybody who was in

sight,” and began “grabb[ing]” and “fighting” the police officers. Ultimately, it

took three officers to subdue Clayton.

      After Clayton was subdued, Dr. Sarantopoulos emerged from the exam room

and went to the emergency unit to have his right arm examined. As a result of the

attack, Dr. Sarantopoulos suffered a minor muscle sprain. Although Dr.

Sarantopoulos was able to return to work the day of the attack, he continued to feel

pain in his arm for three to four days and had physical difficulty performing his

duties. Clayton was the angriest patient with whom Dr. Sarantopoulos had ever

interacted, and the encounter made Dr. Sarantopoulos very afraid for his safety.


                                           4
               Case: 14-14505       Date Filed: 06/26/2015      Page: 5 of 16


B.     Indictment

       A grand jury indicted Clayton on one count of forcibly assaulting a federal

employee, Dr. Sarantopoulos,2 while Sarantopoulos was engaged in the

performance of his official duties, thereby inflicting bodily injury, in violation of

18 U.S.C. § 111(a)(1), (b). The indictment specifically alleged that Clayton “in the

commission of the offense did inflict bodily injury” on Dr. Sarantopoulos,

exposing Clayton to sentence of up to 20 years’ imprisonment under § 111(b).

C.     Jury Trial

       After Clayton, through counsel, entered a plea of not guilty, the case

proceeded to a one-day jury trial on July 14, 2014. At trial, the government’s

witnesses testified as to Clayton’s offense conduct as described above.

       During the jury charge, the district court, over defense objection, provided

the following instruction on forcibly assaulting a federal employee with the

infliction of bodily injury:

             A defendant can be found guilty of the offense of assaulting a
       Federal employee only if all the following facts are proved beyond a
       reasonable doubt:

             First, that the defendant forcibly assaulted,                   impeded,
       intimidated or interfered with Constantine Sarantopoulos.




       2
         Dr. Sarantopoulos is a federally employed physician at the VAMC and director of the
pain clinic.
                                               5
              Case: 14-14505      Date Filed: 06/26/2015   Page: 6 of 16


            Two, that Constantine Sarantopoulos was a Federal employee
      as described above, then engaged in the performance of an official
      duty.

             Three, that the defendant acted knowingly and intentionally.

            Four, that the defendant inflicted bodily injury upon
      Constantine Sarantopoulos.

             The term “forcible assault” can include either an assault which
      results in physical contact or an intentional display of force that would
      cause a reasonable person to expect immediate and serious bodily
      harm or death, regardless of whether the act is carried out or the
      person is injured.

             ...

            Though a forcible assault requires an intentional threat or
      attempt to inflict serious bodily injury, the threat or attempt does not
      have to be carried out and the victim does not have to be injured.

             But in this case, the Indictment alleges that bodily injury
      actually occurred, so that is the fourth element that the Government
      must prove.

(Emphasis added).

      Clayton’s trial counsel objected, in relevant part, to the inclusion of the

language stating that forcible assault can occur “regardless of whether the act [of

physical contact or display of force] is carried out or the person injured.” Clayton

argued that it would confuse the jury to instruct them both that forcible assault can

occur regardless of whether the victim is injured and that, in this case, they are

required to find bodily injury.



                                           6
              Case: 14-14505     Date Filed: 06/26/2015    Page: 7 of 16


      The district court’s instruction largely matched and was consistent with this

Court’s pattern jury instruction on forcible assault of a federal employee resulting

in bodily injury in use at the time of Clayton’s jury trial. See 11th Cir. Pattern Jury

Instructions (Criminal), Offense Instruction 1.2 (2010).

      This Court’s pattern instruction then included the phrase “regardless of

whether the act is carried out or the person is injured,” although the instruction has

since been amended to omit that phrase. See Pattern Jury Instructions (Criminal),

Offense Instruction 1.2 (2015 Revisions). However, the instruction still includes

the sentence: “Though a forcible assault requires an intentional threat or attempt to

inflict serious bodily injury, the threat or attempt doesn’t have to be carried out and

the victim doesn’t have to be injured.” Id.

D.    Verdict and Sentencing

      The jury found Clayton guilty as charged.

      The presentence investigation report (“PSI”) recommended a base offense

level of 10, pursuant to U.S.S.G. § 2A2.4. The PSI added to that base offense

level: (1) a three-level increase because the offense involved physical contact,

§ 2A2.4(b)(1); and (2) a two-level increase because the offense involved physical

injury, § 2A2.4(b)(2).

      Clayton’s total adjusted offense level was 15. Based on this total offense

level and a criminal history category of I, Clayton’s advisory guidelines range was


                                           7
              Case: 14-14505    Date Filed: 06/26/2015    Page: 8 of 16


18 to 24 months’ imprisonment. The statutory maximum for Clayton’s offense

was 20 years’ imprisonment.

      At sentencing, Clayton’s attorney requested a sentence of probation with

mandatory participation in anger management classes. Clayton’s attorney

acknowledged that Clayton’s guidelines range was correctly calculated but argued

that the circumstances of Clayton’s offense fell outside the “heartland of what is

contemplated” by the Sentencing Commission for cases of assault against federal

employees. Clayton’s attorney pointed out that Clayton went to the VAMC on the

day of the assault originally for a lawful purpose, was dealing with pain that

resulted from his service in the Army, and had since written a letter of apology to

Dr. Sarantopoulos.

      Clayton addressed the district court and apologized for his actions,

indicating that he was out of pain medication at the time of the attack and his

actions resulted from the pain he was in.

      The government requested a 21-month sentence, emphasizing the

seriousness of Clayton’s offense and the fear Clayton caused Dr. Sarantopoulos

and the other witnesses at the pain clinic. The government urged the district court

to consider “[w]hat would have happened if Dr. Sarantopoulos had not been able to

lock [the exam room] door” and Clayton had “been able to get inside that door at

Dr. Sarantopoulos.” The government argued that a 21-month sentence would


                                            8
              Case: 14-14505      Date Filed: 06/26/2015     Page: 9 of 16


provide adequate deterrence to help ensure the safety of both veterans and

employees in VA medical centers. The government noted, “The veterans of World

War II, Vietnam, the Gulf conflict, Afghanistan, Iraq, deserve to be able to seek

treatment in a violence-free environment.”

       The district court then read Dr. Sarantopoulos’s statement to the probation

officer, in which the doctor recounted the pain he experienced after the attack and

the serious emotional impact the experience had on him, including “unpleasant

recurrent memories” and “frequent flashbacks.” Dr. Sarantopoulos and his wife

became concerned about his safety in the workplace after the attack and about the

possibility of retaliation against his family after he testified at trial. Dr.

Sarantopoulos’s colleagues at the VAMC also were “very apprehensive and

worried” following the attack.

       Before imposing sentence, the district court stated that it had considered the

parties’ statements, the PSI, and the sentencing factors set forth in 18 U.S.C.

§ 3553(a). The district court sentenced Clayton to 24 months’ imprisonment, a

sentence within Clayton’s advisory guidelines range. Clayton objected to the

substantive reasonableness of the sentence.




                                             9
             Case: 14-14505     Date Filed: 06/26/2015    Page: 10 of 16


                                 II. DISCUSSION

A.    Jury Instructions

      On appeal, defendant Clayton argues that the district court erred by

instructing the jury both that bodily injury was an element the government was

required to prove and also that forcible assault can occur “regardless of whether

. . . the person is injured.” Clayton contends that the inconsistent instruction on

whether forcible assault required an actual injury confused the jurors, such that

they may have convicted him on an invalid legal theory.

      We review the legal correctness of jury instructions de novo but defer to the

district court’s phrasing of the instruction absent an abuse of discretion. United

States v. Wilk, 572 F.3d 1229, 1236-37 (11th Cir. 2009). District courts have wide

discretion in the style and phrasing of instructions, so long as the instructions

accurately reflect the applicable law. United States v. Williams, 526 F.3d 1312,

1320-21 (11th Cir. 2008). When a jury instruction accurately expresses the

applicable law without confusing the jury, “there is no reason for reversal even

though isolated clauses may, in fact, be confusing, technically imperfect, or

otherwise subject to criticism.” See United States v. Gibson, 708 F.3d 1256, 1275

(11th Cir. 2013) (quotation omitted).

      Forcible assault against a federal employee is defined in 18 U.S.C. § 111(a)

as an offense in which a person “assaults, resists, opposes, impedes, intimidates, or


                                          10
             Case: 14-14505     Date Filed: 06/26/2015    Page: 11 of 16


interferes with [a federal employee] engaged in or on account of the performance

of official duties.” 18 U.S.C. § 111(a)(1). Subsection (b) of the statute provides

for an enhanced penalty if the perpetrator “inflicts bodily injury” during “the

commission of any acts described in subsection (a).” Id. § 111(b).

      Thus, in order to convict a defendant for a violation of § 111(b), the

government must prove all the elements of a violation of § 111(a) and the

additional element of actual bodily injury. See United States v. Gutierrez, 745

F.3d 463, 471 n.9 (11th Cir. 2014); see also United States v. Siler, 734 F.3d 1290,

1296 (11th Cir. 2013), cert. denied, 134 S. Ct. 1563 (2014) (holding “that § 111

establishes three separate crimes” each consisting of the elements of the preceding

category of crime, but adding an element or elements that must be proved to the

jury beyond a reasonable doubt, resulting in an increased penalty).

      Here, defendant Clayton fails to show any reversible error in the district

court’s jury instruction on forcible assault. As noted above, the jury charge was

consistent with this Court’s pattern jury instruction in use at the time of Clayton’s

trial. See 11th Cir. Pattern Jury Instructions (Criminal), Offense Instruction 1.2

(2010). More importantly, the language of the actual jury charge given accurately

reflected that, under § 111, the offense of forcible assault against a federal

employee generally does not require actual injury, but that the government must




                                          11
             Case: 14-14505      Date Filed: 06/26/2015   Page: 12 of 16


prove that element where it seeks an enhancement for an assault resulting in bodily

injury. 18 U.S.C. § 111(a)(1), (b); see Gutierrez, 745 F.3d at 471 n.9.

      In particular, the jury charge made clear that, “in this case, the Indictment

alleges that bodily injury actually occurred, so that is the fourth element that the

Government must prove.” (Emphasis added). Thus, the language to which

Clayton specifically objected—“regardless of whether the act is carried out or the

person is injured”—was not unduly confusing in light of the jury instruction as a

whole, which clearly instructed the jury that it was required to find that Clayton

had inflicted a bodily injury.

B.    Substantive Reasonableness

      Defendant Clayton next contends that the district court imposed a

substantively unreasonable sentence in imposing a 24-month sentence of

incarceration and failing to grant a downward variance to a sentence of probation.

      We review the reasonableness of a sentence for abuse of discretion. United

States v. Cubero, 754 F.3d 888, 892 (11th Cir.), cert. denied, 135 S. Ct. 764

(2014). We consider whether a sentence is substantively unreasonable under the

totality of the circumstances and in light of the 18 U.S.C. § 3553(a) factors. Id.




                                          12
                Case: 14-14505        Date Filed: 06/26/2015        Page: 13 of 16


       In determining a sentence, a district court must evaluate all of the § 3553(a)

factors but can attach “great weight” to one factor over others. 3 Id. The weight

given to any specific § 3553(a) factor is committed to the sound discretion of the

district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). As to

variances, we have recognized that a “district court has considerable discretion in

deciding whether the § 3553(a) factors justify a variance and the extent of one that

is appropriate.” Cubero, 754 F.3d at 892 (quotations and alteration omitted). “We

give that decision due deference because the district court has an institutional

advantage in making sentencing determinations.” Id. (quotation omitted).

       The party challenging the reasonableness of a sentence on appeal bears the

burden to show that it is unreasonable. Id. at 893. “We may vacate a sentence

only if we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Id. at 892-93 (quotations omitted). We have held that two

indicators of reasonableness are a sentence within the advisory guidelines range


       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
                                                 13
             Case: 14-14505     Date Filed: 06/26/2015   Page: 14 of 16


and a sentence well below the statutory maximum penalty. Id. at 898; United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

      Here, we cannot say that the district court abused its discretion in sentencing

Clayton to 24 months’ imprisonment and declining to vary downward from his

advisory guidelines range of 18 to 24 months’ imprisonment to a sentence of

probation. The district court listened to the parties’ arguments as to the appropriate

sentence and stated that it had considered those arguments, the PSI, and the

§ 3553(a) factors. The evidence showed that Clayton’s crime was serious, as he

was belligerent, violently attacked Dr. Sarantopoulos, and caused Dr.

Sarantopoulos and multiple others to fear for their safety. When police officers

arrived, Clayton refused to leave the VAMC, attempted to attack the officers,

resisted arrest, and could not be subdued without the participation of three officers

and the use of pepper spray.

      Although Clayton attempts to downplay the seriousness of his offense by

arguing on appeal that Dr. Sarantopoulos’s injury was only “minimal,” Dr.

Sarantopoulos’s statement to the probation officer described not only his physical

pain following the attack but also the attack’s serious emotional impact on him, his

wife, and his colleagues.

      Further, we cannot say the district court abused its discretion in finding a

sentence of incarceration was necessary to provide adequate deterrence. The


                                          14
               Case: 14-14505       Date Filed: 06/26/2015       Page: 15 of 16


government argued at sentencing that a sentence of probation would not adequately

deter Clayton and others from violent and threatening behavior in VA medical

centers that compromises the safety of others and the right of other veterans to

receive treatment in a violence-free environment. Additionally, while on appeal

Clayton emphasizes his lack of criminal history points, his medical issues, and the

pain he was in on the day of the assault, this Court does not reweigh the § 3553(a)

factors. See Clay, 483 F.3d at 743.4

       Finally, the 24-month sentence imposed by the district court was within

Clayton’s advisory guidelines range and was one-tenth the statutory maximum of

20 years for a violation of § 111(b). See Cubero, 754 F.3d at 898; Hunt, 526 F.3d

at 746.

       In sum, Clayton has failed to show that the district court abused its

discretion by deciding that a 24-month sentence, and not a sentence of probation,

was appropriate in light of the § 3553(a) factors.




       4
         On appeal, although Clayton concedes the advisory guidelines range was correctly
calculated at 18-24 months under the Sentencing Guidelines, Clayton also advances several
policy arguments for why his advisory guidelines range was excessive in his case. For example,
he argues his status as a veteran meant he had to go to a VA facility where federal employees
worked, as opposed to a private pain clinic which did not have federal employees. It is
questionable whether Clayton ever fairly presented these arguments to the district court. Instead,
Clayton argued only generally that his case was outside the “heartland of what is contemplated”
by the Sentencing Commission for cases of assault on federal employees. In any event, nothing
in Clayton’s policy arguments shows the district court abused its discretion in sentencing.
                                               15
            Case: 14-14505    Date Filed: 06/26/2015   Page: 16 of 16


                             III. CONCLUSION

      For the foregoing reasons, we affirm defendant Clayton’s conviction and

sentence.

      AFFIRMED.




                                       16
