                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-12011         ELEVENTH CIRCUIT
                                                         APRIL 11, 2012
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                            CLERK

                  D.C. Docket No. 8:10-cr-00010-VMC-AEP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

AARON CAINION,

                                                             Defendant-Appellant.

                        ___________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                       ___________________________

                                 (April 11, 2012)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM.

      Aaron Cainion appeals his convictions and sentences for drug and firearm-

related offenses. After a thorough review of the record, we affirm.
      Cainion was charged with (1) possession with the intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1); (2) possession of a

firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c) (Count 2); and (3) possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g), (Count 3). During jury selection, Cainion

objected to three potential jurors. First, Cainion moved to strike juror Linda

Richards for cause after Richards stated that she thought it would be hard for her

to sit through a trial if the defendant did not testify. Second, Cainion moved to

strike juror Patrick Ricketts for cause after Ricketts stated that he assumed the

defendant had done something wrong and was guilty until proven innocent. After

the court denied the motions to strike, Cainion used his peremptory strikes to

remove Richards and Ricketts. The third juror, Joe Forker, worked as a laboratory

technician and had testified in other cases about drug-screening results. Cainion’s

motion to strike Forker was denied, and Cainion had no more peremptory

challenges. Forker was placed on the jury as an alternate, but later replaced

another juror.

      The evidence at trial established that Cainion was driving at speeds reaching

100 miles-per-hour through Tampa when he struck multiple vehicles, including a

police car. Although the officer attempted to move out of Cainion’s way, Cainion

                                          2
tracked the police car and struck it. Police eventually stopped Cainion and, during

a search of the car police found cocaine. They also discovered a firearm and

ammunition under a bag on the floor. Cainion waived his rights and admitted to

police the drugs were his. The government submitted videos of the chase.

      Cainion testified in his own defense, stating that he had been drinking and

did not know the gun and ammunition were in the car. He denied telling police

that the cocaine was his, and he denied striking any cars while driving at high

speed. He asserted that the video tape was doctored. The jury convicted Cainion

of all three charges.

      Before sentencing, Cainion moved for a competency hearing, which the

court granted. The psychologist testified that Cainion experienced depression,

hallucinations, and paranoia, and, although he appeared to understand the

adversarial nature of the legal system, his paranoia probably limited his ability to

assist in his defense. At the hearing, Cainion argued that he was not incompetent

but that he had a problem with his attorney. The psychologist stated that Cainion

believed that the government and his attorney were conspiring against him and

that appointing new counsel might alleviate concerns about his ability to assist in

his defense. The magistrate judge concluded that Cainion understood the legal




                                          3
system and the charges against him, found Cainion competent, and appointed new

counsel.

      The probation officer calculated the advisory guidelines range based on

886.7 grams of cocaine, which resulted in a base offense level of 26 under

U.S.S.G. § 2D1.1(c)(7). The probation officer added a 6-level enhancement under

§ 3A1.2(c)(1) because Cainion’s conduct created a substantial risk of serious

bodily injury to law enforcement, a 2-level enhancement under § 3C1.2 because he

recklessly created a substantial risk of death or serious bodily injury when he fled

and struck a civilian’s car, and a 2-level enhancement for obstruction of justice

under § 3C1.1. Cainion’s advisory guidelines range was 235 to 293 months’

imprisonment for Counts 1 and 3, and there was a mandatory consecutive 60-

month sentence for Count 2, the § 924(c) offense.

      Cainion objected to the enhancements under § 3A1.2 and 3C1.2 as double-

counting and he argued that neither enhancement applied to his conduct. The

district court overruled the objections, finding that the evidence showed that

Cainion knew he struck a marked police car and did so intentionally. The court

further found that Cainion’s high speed chase was reckless endangerment during

flight, and, because it put both law enforcement and civilians at risk, both

enhancements were proper. The court sentenced Cainion to 260 months for

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possession of the drugs and firearm, and a consecutive 60 months for the

possession of a firearm in furtherance of a drug-trafficking crime, for a total of

320 months’ imprisonment.

      Cainion now appeals, raising three issues: (1) the district court erred when it

denied his motion to strike two jurors for cause; (2) the magistrate judge erred

when it found him competent; and (3) the court erroneously calculated his

sentencing range. We address each in turn.

                                          I.

      The United States Constitution protects the right of a criminal defendant to

be tried “by an impartial jury. . . .” U.S. Const. Amend. VI. A district court has

great discretion to determine whether to excuse a prospective juror for cause.

United States v. Flores, 572 F.3d 1254, 1261 (11th Cir. 2009). We review the

district court’s decision on such a question deferentially, determining whether the

record contains “fair support” for the district court’s conclusion that the juror

would be impartial. United States v. Dickerson, 248 F.3d 1036, 1045 (11th Cir.

2001).

      The Federal Rules of Criminal Procedure provide that a defendant in a non-

capital felony case is entitled to ten peremptory challenges. Fed. R. Crim. P.

24(b)(2). When a defendant uses a peremptory challenge to remove a juror who

                                           5
should have been excused for cause, his right to exercise peremptory challenges

under Rule 24(b) is not denied or impaired. United States v. Martinez-Salazar,

528 U.S. 304, 317 (2000). Indeed, if a defendant cures a court’s error in this way,

he has not been deprived of any rule-based or constitutional right. Id. at 307.

       Here, even if the court erred by denying Cainion’s motion to strike Richards

and Ricketts for cause, his use of two peremptory challenges to remove these two

jurors cured the error.1

                                               II.

       Cainion next challenges the magistrate judge’s finding that he was

competent to proceed to sentencing. The government argues that Cainion waived

his argument because he failed to object below. In response, Cainion argues that,

under Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982),2 he may raise

this issue because the magistrate judge did not notify him that his failure to file

objections would result in a waiver of his right to further review.

       A magistrate judge has the authority to “hear and determine any pretrial

matter pending before the court,” with a limited number of exceptions. See 28


       1
          Cainion has abandoned any argument that the court erred by denying his motion with
respect to juror Forker. United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010).
       2
         In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982), we adopted as binding
precedent all Fifth Circuit Unit B decisions from any date.

                                               6
U.S.C. § 636(b)(1)(A). In criminal proceedings, if the magistrate judge issues an

order on a non-dispositive matter, a “party may serve and file objections to the

order within 14 days after being served with a copy of a written order” so that the

district court can review and modify it if necessary. Fed. R. Crim. P. 59(a).

“Failure to object in accordance with this rule waives a party’s right to review.”

Id. (emphasis added).

      More recently, we reiterated that the “law is settled that appellate courts are

without jurisdiction to hear appeals directly from federal magistrates.” United

States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (quotation omitted).

Addressing a challenge to a magistrate judge’s order that was not first appealed to

the district court, we held that we were without jurisdiction to review the order.

See id. at 1359-62. Because Cainion failed to object to the magistrate judge’s

order, we will not consider his claim.

                                         III.

      Cainion challenges the calculation of his sentencing range on two grounds.

First, he argues that the enhancement under U.S.S.G. § 3A1.2(c)(1) was not

warranted. Second, he contends that the application of both § 3A1.2 and § 3C1.2

constitutes impermissible double-counting.




                                          7
      We review a district court’s application of the guidelines to the facts de

novo. United States v. Lamons, 532 F.3d 1251, 1268 (11th Cir. 2008). We also

review allegations of impermissible double-counting de novo. United States v.

Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). We review a district court’s

factual findings for clear error. Id.

      Under U.S.S.G. § 3A1.2(c)(1), a district court should enhance a defendant’s

offense level by six levels “[i]f, in a manner creating a substantial risk of serious

bodily injury, the defendant . . . knowing or having reasonable cause to believe

that a person was a law enforcement officer, assaulted such officer during the

course of the offense or immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1).

This section applies only to “assaultive conduct against such official victims that

is sufficiently serious to create at least a ‘substantial risk of serious bodily injury.’”

Id. § 3A1.2, comment. (n.4). When we have considered the applicability of

§ 3A1.2, we have focused on whether the defendant knew the victim was a law

enforcement officer. United States v. Park, 988 F.3d 107, 110 (11th Cir. 1993);

United States v. Bailey, 961 F.2d 180, 182–83 (11th Cir. 1992).

      Under U.S.S.G. § 3C1.2, a two-level increase is appropriate if the defendant

“recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” Id. § 3C1.2. This

                                            8
section does not apply “where the offense guideline in Chapter Two, or another

adjustment in Chapter Three, results in an equivalent or greater increase in offense

level solely on the basis of the same conduct.” Id. § 3C1.2, comment. (n.1)

(emphasis added). Double-counting occurs when a district court applies one part

of the guidelines to increase a defendant’s punishment on account of a kind of

harm that was already fully accounted for by the application of another part of the

guidelines. United States v. White, 663 F.3d 1207, 1217 (11th Cir. 2011). Cainion

does not challenge the application of § 3C1.2 except insofar as he contends that,

coupled with § 3A1.2, it constitutes impermissible double-counting.

      We have stated that a defendant’s challenge to the application of both

U.S.S.G. §§ 3A1.2 and 3C1.2 was meritless when, while speeding away from law

enforcement officers, the defendant struck a law enforcement officer with a

vehicle, then continued to recklessly operate that vehicle while fleeing. United

States v. Matos-Rodriguez, 188 F.3d 1300, 1304 (11th Cir. 1999). We reasoned

that the defendant’s assault of the law enforcement officer was temporally and

spatially distinct from his reckless conduct in leading law enforcement officers on

a high-speed chase. Id. at 1312.

      Neither of Cainion’s contentions on appeal have merit. First, undisputed

portions of the PSI and information at sentencing showed that Cainion (1) drove

                                         9
his vehicle at excessive speeds, hitting a marked law enforcement vehicle while an

officer was still inside, and (2) knew or had reason to know that the victim was a

law enforcement officer. Thus, the central question is whether this constituted an

“assault,” i.e., whether Cainion intentionally struck the law enforcement vehicle.

The officer testified that he had attempted to avoid Cainion, who continued to

track the car before striking it. Although Cainion contends that the video shows

that he lost control of his vehicle before hitting the marked law enforcement

vehicle, the video does not conclusively do so.

      Cainion’s reliance on United States v. Hampton, 346 F.3d 813, 815 (8th Cir.

2003), is misplaced. In Hampton, the Eighth Circuit concluded that § 3A1.2 did

not apply when the defendant lost control of his vehicle after running over “stop

sticks” placed in the road by police. In Cainion’s case, however, Cainion

intentionally struck the officer’s vehicle and continued to drive at high speeds

until stopped by police. Thus, the record supports the district court’s finding that

Cainion acted intentionally, which in turn shows that the court properly applied

§ 3A1.2.

      Second, the district court did not engage in impermissible double-counting

here. In addition to striking the law enforcement officer’s vehicle, Cainion drove

recklessly for several miles at high speeds, endangered others, and striking a

                                         10
civilian vehicle. Thus, the district court appropriately applied both enhancements.

Although both were imposed as a result of his reckless driving, Cainion’s assault

of the police vehicle and his reckless driving generally were temporally and

spatially distinct from each other. His conduct “did not occur in a small area of

only ‘two or three car lengths,’ or in a brief expanse of time.” Matos-Rodriguez,

188 F.3d at 1312. Thus, the §§ 3A1.2 and 3C1.2 enhancements were not based

solely on the same conduct, and there was no improper double-counting. U.S.S.G.

§ 3C1.2, comment. (n.1).

      Because Cainion has failed to demonstrate any error, we affirm his

convictions and sentences.

      AFFIRMED.




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