                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4073


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ZAKARIA TAOUFIK,

                    Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:18-cr-00073-CMH-1)


Submitted: March 17, 2020                                         Decided: May 12, 2020


Before KEENAN and RUSHING, Circuit Judges, and Thomas E. JOHNSTON, Chief
United States District Judge for the Southern District of West Virginia, sitting by
designation.


Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge Rushing and Judge Johnston concurred.


James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. G.
Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

       Zakaria Taoufik was convicted of taking an action to prevent or hamper his removal

from the United States, in violation of 8 U.S.C. § 1253(a)(1)(C), and of assaulting federal

officers, in violation of 18 U.S.C. § 111(a). The district court sentenced Taoufik to a term

of 60 months’ imprisonment.

       On appeal, Taoufik argues that the district court erred: (1) in excluding evidence

regarding Taoufik’s mental health; and (2) in imposing a sentencing enhancement under

U.S.S.G. § 2A2.2(b)(2)(B) for use of a dangerous weapon during an assault. We conclude

that the district court did not abuse its discretion in excluding evidence of Taoufik’s mental

health because the evidence was proffered for an impermissible purpose, namely, to excuse

his conduct.

       Regarding the dangerous weapon enhancement, the government has abandoned on

appeal its argument that Taoufik’s saliva, which struck the officers, qualified as a

dangerous weapon because Taoufik has an infectious disease. Now, the government

maintains simply that Taoufik’s use of his teeth and head in attempting to bite and “head

butt” the officers qualified as the use of a dangerous weapon. We conclude that the record

before us does not support imposition of the dangerous weapon enhancement, and that the

district court erred in reaching a contrary conclusion. Thus, we affirm in part, and vacate

in part, the district court’s judgment and remand for resentencing.




                                              2
                                             I.

       Taoufik, a citizen of Morocco, entered the United States in 1999 as a lawful

permanent resident. In 2010, immigration authorities issued a removal order based on

Taoufik’s commission of numerous criminal offenses not at issue in this appeal. In October

2017, officers with the United States Immigration and Customs Enforcement (ICE)

attempted to remove Taoufik to Morocco. However, Taoufik refused to board the airplane

and threatened to “fight” any attempt by the officers to force him onto the plane. The pilot

refused to allow Taoufik to board, and he was returned to ICE custody.

       In January 2018, immigration authorities again attempted to remove Taoufik to

Morocco by placing him on a commercial flight at Dulles International Airport. Taoufik,

who was restrained by handcuffs and leg shackles, informed the pilot that he would “not

allow [the officers] to put him on the flight,” that he would “fight hard,” and that he would

“make the flight uncomfortable for everyone.” Despite these comments, the pilot permitted

Taoufik to board the plane accompanied by five ICE officers. As Taoufik proceeded to his

seat, he was “making outbursts,” calling the officers “liars,” and threatening to kill them.

       The rear section of the plane had been dedicated to Taoufik and the officers. The

officers planned to seat Taoufik in the last row, between Officer Bjorn Cupid and Officer

Michael Donato, with Officer Jeremy Thompson seated nearby. When other passengers

began boarding the airplane, Taoufik began yelling loudly, asking passengers to take video

recordings and photographs of his treatment by the officers. As the officers began to place

Taoufik in his seat, he attempted, but failed, to bite Officer Donato. Taoufik also attempted

to “ram” his head to strike Officer Donato, who backed away, and attempted to “head butt”

                                             3
Officer Cupid. Taoufik began slamming his head into the back of the seat in front of him,

cracking the video screen on the seat. While engaging in this behavior, Taoufik yelled that

the officers were “beating him.”

       Taoufik next unbuckled his seatbelt and attempted to stand, prompting the officers

to try to force Taoufik back into his seat. Officer Thompson applied force to a pressure

point to subdue Taoufik. In response, Taoufik “gathered a mouthful of saliva and spit

directly into” Officer Thompson’s face, striking his right eye. Taoufik’s saliva also struck

the eye and face of Officer Cupid. Based on the disturbance, the pilot directed that Taoufik

be removed from the plane. The officers later received medical treatment “for exposure to

an infectious disease.”

       A grand jury charged Taoufik with taking an action to prevent or hamper removal,

in violation of 8 U.S.C. § 1253(a)(1)(C), and with assaulting federal officers, in violation

of 18 U.S.C. § 111(a). Before trial, the district court ordered an evaluation of Taoufik’s

competence to stand trial, and later found that Taoufik was competent. Taoufik does not

challenge this finding on appeal. The district court also granted Taoufik’s motion to

appoint as an expert witness the psychologist who had evaluated Taoufik for his

competency determination. However, the court deferred ruling at that time regarding

whether the psychologist’s testimony would be admissible at trial.

       The government filed a motion in limine to exclude testimony from the psychologist

concerning Taoufik’s mental health, including evidence that he suffers from post-traumatic

stress disorder (PTSD), mood disorder, personality disorder, anxiety, and depression. The

psychologist further had opined that Taoufik’s “thought processes are likely . . . marked by

                                             4
confusion, distractibility, and difficulty concentrating,” causing Taoufik to “mistrust the

motives of others.” In opposing admission of this evidence, the government contended

that because Taoufik had not asserted a defense of “insanity,” he was barred from

presenting such evidence to show diminished capacity or justification for his crimes.

       Taoufik maintained that the expert testimony would show his “maladaptive

behavior patterns,” and that he “has difficulty making decisions and perceiving the larger

significance of decisions that are made.” Taoufik also argued that his PTSD affected “the

volitional nature of” his actions. The district court granted the government’s motion,

holding that such “evidence of diminished capacity” was not admissible except as a

mitigating factor at sentencing.

       After a one-day trial, a jury found Taoufik guilty on both counts. The probation

officer calculated Taoufik’s offense level at 27, which included a four-level enhancement

under U.S.S.G. § 2A2.2(b)(2)(B) for use of a dangerous weapon during an assault.

Although the probation officer did not identify the factual basis for this enhancement, the

government argued that the enhancement was applicable because Taoufik “knew that he

had an infectious disease and [that he] transformed his teeth and saliva into dangerous

weapons.” Taoufik’s criminal history category was calculated at V, and the recommended

sentencing guideline range was between 120 and 150 months’ imprisonment.

       Taoufik objected to the four-level enhancement for use of a dangerous weapon. He

argued that he “did not intentionally spit at anyone” and that, because had been receiving

treatment for his infectious disease in prison, the likelihood of transmission was very low.

After conducting a sentencing hearing, the district court overruled Taoufik’s objection.

                                             5
The district court imposed a sentence of 60 months’ imprisonment, well below the

recommended guideline range. Taoufik now appeals.


                                             II.

       Taoufik raises two arguments for our consideration. First, he contends that the

district court abused its discretion in excluding evidence regarding his mental health.

Second, he argues that the district court erred in applying the four-level enhancement under

U.S.S.G. § 2A2.2(b)(2)(B) for use of a dangerous weapon during an assault. We address

these arguments in turn.

                                             A.

       Taoufik first argues that the district court erred by excluding evidence regarding his

mental health, including his diagnosis of PTSD. According to Taoufik, his proffered

evidence was relevant to the issue whether he had the mens rea necessary to commit the

charged offenses. Taoufik maintains that because of his PTSD, “he did not act willfully,”

which the government had to prove for both the crime of taking an action to prevent

removal under 8 U.S.C. § 1253(a)(1)(C), and the crime of assaulting federal officers under

18 U.S.C. § 111(a). We disagree with Taoufik’s argument.

       We review the district court’s evidentiary ruling under an abuse-of-discretion

standard. United States v. Sutherland, 921 F.3d 421, 429 (4th Cir. 2019). Among other

circumstances, a court abuses its discretion when it bases its ruling on an erroneous

principle of law. Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527, 533

(4th Cir. 2013).


                                             6
       Under the Insanity Defense Reform Act (IDRA), 18 U.S.C. § 17(a), a defendant is

prohibited from asserting “a defense that raises ‘any form of legal excuse based upon one’s

lack of volitional control[,]’ including ‘a diminished ability or failure to reflect adequately

upon the consequences or nature of one’s actions.’” United States v. Worrell, 313 F.3d

867, 872 (4th Cir. 2002) (quoting United States v. Cameron, 907 F.2d 1051, 1061 (11th

Cir. 1990)); see also United States v. Eff, 524 F.3d 712, 719 (5th Cir. 2008); United States

v. Pohlot, 827 F.2d 889, 890 (3d. Cir. 1987). Accordingly, a defendant generally may not

use psychiatric evidence of a mental condition as an excuse for his conduct. See Worrell,

313 F.3d at 873. In rare circumstances, however, such evidence may be relevant to

“negate[] an essential element of the government’s prima facie case.” 1 Id. at 873-74

(citation omitted).

       One such example of admissible psychiatric evidence involved a defendant who was

charged with threatening to shoot an officer and who denied making that threat. Id.

(discussing United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977)). 2 The Seventh Circuit

reversed the district court’s ruling excluding evidence that the defendant suffered from a

mental condition and, therefore, probably could not have engaged in such aggressive

conduct. Staggs, 553 F.2d at 1076. “In other words, [the defendant] was offering the




       1
         “[P]sychiatric testimony regarding a defendant’s mental condition” also may be
admissible if relevant “to disprove specific intent for specific intent crimes.” Worrell, 313
F.3d at 873; see infra at 7 n.3.
       2
        As we explained in Worrell, “Staggs was overruled on grounds unrelated to this
discussion.” 313 F.3d at 874 n.3.

                                              7
psychiatric evidence to show he did not do it, not that he could not help it.” Worrell, 313

F.3d at 874. However, apart from this narrow category of admissible psychiatric evidence,

most efforts to introduce psychiatric evidence in the absence of an insanity defense fall

within the impermissible category of “diminished capacity evidence or some other form of

justification in disguise.” Id. at 873.

       We conclude that Taoufik’s proffered evidence plainly qualifies as an impermissible

attempt to excuse his conduct. Although the jury was instructed that Taoufik had to have

acted “willfully” to be convicted of each charged offense, the jury further was instructed

that

       a person[] acts willfully, as that term is used in these instructions, when that
       person acts deliberately, voluntarily, and intentionally and not by a mistake
       or accident.

       By arguing that PTSD affected his ability to act “willfully,” Taoufik necessarily

contended that that he was unable to act “deliberately, voluntarily, and intentionally.”3

Indeed, Taoufik emphasized to the district court that his proffered evidence bore on “the

volitional nature of” his actions. This argument lacks any merit because the language of

the IDRA “leaves no room for a defense that raises any form of legal excuse based upon

one’s lack of volitional control,” including “a diminished ability or failure to reflect




       3
          The plain language of the jury instruction belies Taoufik’s argument that the
government was required to prove a specific intent element that Taoufik acted “with a bad
purpose.” Instead, the instruction required that the government simply show that Taoufik
acted intentionally and not “by mistake or accident.” See Oxygene v. Lynch, 813 F.3d 541,
548 (4th Cir. 2016) (explaining that an “intent to perform an act” describes “general intent”
(citation omitted)).

                                              8
adequately upon the consequences or nature of one’s actions.” Worrell, 313 F.3d at 872

(citation omitted).

       Applying this general rule, we conclude that this is not the “rare” case in which

psychiatric evidence would have aided a fact finder in determining whether Taoufik

committed the charged offenses. Id. at 874. Instead, Taoufik’s proffered evidence merely

reflected an attempt to present evidence to excuse his conduct, a purpose plainly barred by

the IDRA. Accordingly, we hold that the district court did not abuse its discretion in

excluding Taoufik’s proffered psychiatric evidence.

                                            B.

       We next consider the question whether the district court erred in applying a four-

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

weapon during an assault. As noted above, the government has abandoned its prior

argument that Taoufik’s saliva qualified as a dangerous weapon, conceding that “the record

contains no evidence about whether [Taoufik’s] disease is transmissible via saliva.”

Instead, the government submits that we can affirm the district court’s application of the

enhancement on alternative grounds, namely, that Taoufik’s teeth and skull qualify as

dangerous weapons because Taoufik attempted “to bite and head butt the officers.” 4 We

disagree with the government’s argument.



       4
          See United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (explaining that
with respect to applicability of sentencing enhancements, “we are not confined to the
district court’s analysis but may affirm the court’s ruling on any evidence appearing in the
record”).

                                             9
       The issue whether an object qualifies as a dangerous weapon presents a question of

fact. See United States v. Sturgis, 48 F.3d 784, 788 (4th Cir. 1995) (explaining that whether

an object was used as a dangerous weapon presents a factual issue and is not subject to

routine application as a question of law). Because of the factual nature of this issue, “we

apply the clear error standard in reviewing whether a preponderance of the evidence

supported imposition of the enhancement.” United States v. Steffen, 741 F.3d 411, 415

(4th Cir. 2013).

       Under U.S.S.G. § 2A2.2(b)(2)(B), a defendant is subject to a four-level

enhancement when “a dangerous weapon (including a firearm) was otherwise used” during

an assault. The term “[d]angerous weapon” is defined as

       (i) an instrument capable of inflicting death or serious bodily injury; or
       (ii) an object that is not an instrument capable of inflicting death or serious
       bodily injury but . . . the defendant used the object in a manner that created
       the impression that the object was such an instrument (e.g. a defendant
       wrapped a hand in a towel during a bank robbery to create the appearance of
       a gun).

U.S.S.G. § 1B1.1 app. n.1(E).

       The application notes to U.S.S.G. § 2A2.2 further explain that the term “[d]angerous

weapon” also “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.” U.S.S.G. § 2A2.2 app. n.1. The term “bodily injury” means “any

significant injury,” such as “an injury that is painful and obvious, or is of a type for which

medical attention ordinarily would be sought.” U.S.S.G. §§ 1B1.1 app. n.1(B), 2A2.2 app.

n.1.


                                             10
       We previously have addressed whether a defendant’s teeth qualified as a dangerous

weapon used to assault officers, as prohibited by former 18 U.S.C. § 113(c). 5 Sturgis, 48

F.3d at 785, 787 (citing as helpful authority the definition of “dangerous weapon” under

the guidelines). In Sturgis, the defendant, who was HIV positive, “aggressively bit two

correctional officers” who were attempting to restrain him during an altercation. Id. at 785,

788. Sturgis’ bites on the officers each lasted “four or five seconds” and resulted in wounds

that bled heavily and required medical attention. Id. Under these circumstances, we held

that regardless whether Sturgis could have transmitted his disease by his conduct, a jury

reasonably could conclude that his “mouth and teeth” were used as a dangerous weapon

because he used those body parts to cause injuries akin to puncture wounds inflicted by a

knife. Id. at 785, 788-89; see also United States v. Bryant, 949 F.3d 168, 181-82 (4th Cir.

2020) (citing Sturgis, 48 F.3d at 788).

       In contrast, Taoufik did not inflict any injuries, let alone serious injuries, on the

officers by use of his teeth or his skull. In fact, as reflected by the record, Taoufik’s actions

attempting to bite and “head butt” the officers did not result in any physical contact with

them. Taoufik boarded the airplane in handcuffs and leg shackles, warning that he would

“fight hard” and “make the flight uncomfortable for everyone.” Taoufik begged passengers

to record his actions, pretending that the officers were “beating” him, as Taoufik cracked

a video screen with his head. While the officers held Taoufik in his seat, Officer Thompson



       5
         This provision now is codified at 18 U.S.C. § 113(a)(3). See United States v.
Bryant, 949 F.3d 168, 181 (4th Cir. 2020).

                                               11
observed Taoufik trying to bite Officer Donato on the hand. And, as Officer Donato and

Officer Cupid held Taoufik on each side in his seat, Taoufik “tried to head butt” Officer

Donato and Officer Cupid.

       We know of no precedent, nor has the government cited any, in which a defendant’s

mere attempt to bite or attempt to strike another with one’s head qualified as the use of a

dangerous weapon. Although Taoufik’s attempts to bite and “head butt” the officers were

evidence of an intent to harm them, those attempts did not establish by a preponderance of

the evidence that he inflicted serious bodily injury on the officers with his teeth and head.

Thus, the clear error standard is met in this case. See Steffen, 741 F.3d at 414. Accordingly,

we conclude that the record lacks any factual basis to support application of the dangerous

weapon enhancement, and we vacate Taoufik’s sentence.



                                             III.

       For these reasons, we affirm the district court’s evidentiary ruling excluding

testimony regarding Taoufik’s mental health. We vacate the district court’s application of

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

weapon during an assault, and remand the case to the district court for resentencing.



                                                                      AFFIRMED IN PART,
                                                                       VACATED IN PART,
                                                                        AND REMANDED




                                             12
