                                                                  FILED
                                                      United States Court of Appeals
                                 PUBLISH                      Tenth Circuit

                UNITED STATES COURT OF APPEALS                July 29, 2019

                                                          Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                   Clerk of Court
                   _________________________________


UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                  No. 18-2170

JAMES GONZALES,

      Defendant - Appellant.

                   _________________________________

              Appeal from the United States District Court
                     for the District of New Mexico
                   (D.C. No. 1:18-CR-00585-JAP-1)
                  _________________________________

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New
Mexico, for the Defendant-Appellant.

Marisa Ong, Assistant United States Attorney (Dustin C. Segovia,
Assistant United States Attorney, and John C. Anderson, United States
Attorney, District of New Mexico), Office of the United States Attorney,
Albuquerque, New Mexico, for the Plaintiff-Appellee.
                    _________________________________

Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
              _________________________________

BACHARACH, Circuit Judge.
              _________________________________

     Mr. James Gonzales pleaded guilty to possessing a firearm after a

felony conviction. See 18 U.S.C. § 922(g)(1). The district court sentenced
him to 27 months’ imprisonment and 3 years of supervised release. In

selecting this sentence, the court enhanced the base-offense level under

Sentencing Guideline § 3A1.2(c)(1), which applies when the defendant

assaults a law-enforcement officer during the course of the offense. But the

court erred in interpreting § 3A1.2(c)(1), so we reverse.

1.     While fleeing from Albuquerque police officers, Mr. Gonzales
       pulls a firearm and drops it.

       The sentencing issue springs from a 2018 confrontation between Mr.

Gonzales and Albuquerque police officers. While trying to arrest Mr.

Gonzales on outstanding warrants, the police officers conducted a traffic

stop. After the cars came to a stop, the officers approached and Mr.

Gonzales ran away.

       As Detective Eric Endzel closed in, Mr. Gonzales lifted up his shirt

and pulled a gun. According to Detective Endzel, Mr. Gonzales briefly

applied a “firing grip” but then dropped the gun. R. vol. 4, at 19. After

dropping the gun, Mr. Gonzales reached forward, but he was unable to grab

the gun and it fell to the ground. Detective Endzel believed that Mr.

Gonzales was trying to hold onto the gun. Mr. Gonzales contends that the

evidence also supported a finding that he had intentionally discarded the

gun.




                                      2
2.    Section 3A1.2(c)(1) requires proof of an intent to instill fear of
      bodily harm.

      The district court ruled that

           Mr. Gonzales had failed to present evidence regarding his
            intent and

           § 3A1.2(c)(1) had no intent requirement.

This reasoning reflects an erroneous interpretation of § 3A1.2(c)(1).

      We engage in de novo review of the district court’s interpretation of

this guideline provision. United States v. Robertson, 350 F.3d 1109, 1112

(10th Cir. 2003). In applying de novo review, we consider (1) the

guideline’s language and scholarly commentaries on the common-law

definition of assault, (2) our case law defining the crime of assault, and (3)

other circuits’ interpretations of § 3A1.2(c)(1).

      A.    The Common-Law Definition of Assault

      We begin with the language of § 3A1.2(c)(1). It increases a

defendant’s base-offense level

      [i]f, in a manner creating a substantial risk of serious bodily
      injury, the defendant or a person for whose conduct the
      defendant is otherwise accountable . . . 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) (emphasis added).

      The parties agree that Mr. Gonzales created a substantial risk of

serious bodily injury and knew that police officers were trying to arrest


                                      3
him. Thus, Mr. Gonzales’s challenge to the § 3A1.2(c)(1) enhancement

turns on whether he assaulted a law-enforcement officer.

     We interpret guideline provisions in the same manner as statutes and

court rules. United States v. Duran, 127 F.3d 911, 918 (10th Cir. 1997). If

a guideline term like “assault” is undefined, we generally consider its

established common-law definition (if there is one). Chapman v. United

States, 500 U.S. 453, 461–62 (1991); United States v. Checora, 175 F.3d

782, 790 (10th Cir. 1999). To determine the common-law definition, courts

have considered scholarly commentary. See United States v. Delis, 558

F.3d 177, 180–81 (2d Cir. 2009) (relying on treatises to determine the

common-law definition of assault); see also United States v. Molinar, 881

F.3d 1064, 1071 (9th Cir. 2017) (stating that the court’s interpretation of

generic definitions of common-law crimes is “guided by scholarly

commentary” (quoting United States v. Esparza-Herrera, 557 F.3d 1019,

1023 (9th Cir. 2009))).

     Two forms of assault are recognized under the common law:

     1.    an attempted battery and

     2.    the deliberate infliction of a reasonable fear of injury.

United States v. Hampton, 628 F.3d 654, 660 (4th Cir. 2010). On the first

form of an assault, the government does not question the element of

specific intent. See 2 Wayne R. LaFave, Substantive Criminal Law

§ 16.3(a), at 769 (3d ed. Thomson Reuters 2018) (“An attempt to commit

                                      4
any crime requires a specific intent to commit that crime; and so assault of

the attempted-battery sort requires an intent to commit a battery, i.e. an

intent to cause physical injury to the victim.” (footnote omitted)). The

parties’ disagreement involves the second form of assault.

      Scholars generally describe the second form of assault as requiring

the subjective intent to instill fear in another. For example, Professor

LaFave defined assault to require “an actual intention to cause

apprehension.” 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b)

(3d ed. Thomson Reuters 2018); see also Wayne R. LaFave, Criminal Law

§ 16.3(b) (5th ed. Thomson Reuters 2010). Like Professor LaFave, John

Hawley and Malcolm McGregor stated that an assault is committed when

someone intentionally instills fear in another. John G. Hawley & Malcolm

McGregor, The Criminal Law 155–56 (5th ed. Sprague Pub. Co. 1908). And

Professor Eisenberg observed that “common law criminal assault required

intent to cause fear of imminent bodily harm.” Avalana K. Eisenberg,

Criminal Infliction of Emotional Distress, 113 Mich. L. Rev. 607, 637

(2015). Similarly, Professors Perkins and Boyce defined the crime of

assault as “(1) an attempt to commit a battery or (2) an intentional placing

of another in apprehension of receiving an immediate battery.” Rollin M.

Perkins & Ronald N. Boyce, Criminal Law 159 (3d ed. The Foundation

Press, Inc. 1982). And Dean Miller wrote that despite some conflict in the

cases, the test for the crime of assault “should be the intent of the accused,

                                      5
not the fear of injury of the victim of the alleged assault.” Justin Miller,

Handbook of Criminal Law § 98, at 305 (West. Pub. Co. 1934).

      Like these scholarly commentaries, courts elsewhere have concluded

that common-law assault requires specific intent to instill fear in another. 1

Together, these opinions and scholarly commentary support the existence

of a specific-intent requirement for assault.

      B.    Our Case Law Defining “Assault”

      We draw guidance not only from the common law but also from our

case law defining the crime of assault. For example, we recognized in

United States v. Lynch that an “assault” occurs in two circumstances:

(1) “when a person commits a voluntary, deliberate act which constitutes

an offensive touching” and (2) “when a person intentionally threatens to




1
      See United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009)
(“[C]ommon-law assault consisted of either attempted battery or the
deliberate infliction upon another of a reasonable fear of physical injury
and is often described as a specific intent crime.”); United States v.
Hampton, 628 F.3d 654, 660 (4th Cir. 2010) (stating that common-law
assault “‘consisted of either attempted battery or the ‘deliberate infliction
upon another of a reasonable fear of physical injury’” (quoting Delis, 558
F.3d at 180–81)); United States v. Lamott, 831 F.3d 1153, 1156 (9th Cir.
2016) (“We have previously held that common law assault is a specific
intent crime.”); Carter v. Commonwealth, 606 S.E.2d 839, 841 (Va. 2005)
(concluding that the common-law crime of assault occurs when the
defendant “engages in an overt act intended to place the victim in fear or
apprehension of bodily harm and creates such reasonable fear or
apprehension in the victim”).
                                       6
hurt someone else and has the apparent ability to do so.” 881 F.3d 812, 817

(10th Cir. 2018) (internal quotation omitted).

      The second form of assault is at issue here. Mr. Gonzales’s conduct

would constitute this form of assault only if he had “intentionally”

threatened to hurt one of the officers. Id. Given this definition of “assault,”

the district court could apply the enhancement under § 3A1.2(c)(1) only if

the government had established an intention to instill fear.

      The government contends that a showing of intention is unnecessary

under United States v. Calderon, 655 F.2d 1037 (10th Cir. 1981). We

disagree with the government’s interpretation of Calderon. That case

addressed 18 U.S.C. § 351(e), which governs assaults on members of

Congress. Under § 351(e), the Calderon defendant argued that the

government had needed to prove an attempt to commit a battery. We

disagreed, noting that common-law assault includes not only attempted

battery but also acts “putting another in reasonable apprehension of bodily

harm.” 655 F.2d at 1038. We concluded that the district court had

adequately defined the two types of assault by instructing the jury:

      Any willful attempt to (sic) threat to inflict injury upon the
      person of another, when coupled with an apparent present
      ability to do so, or any intentional display of force such as
      would give the victim reason to fear or expect immediate bodily
      harm, constitutes an assault.




                                      7
Id. The government points to the reference in this instruction to “an[]

intentional display of force.” According to the government, this language

jettisoned the need to show an intent to instill fear.

         The government misreads Calderon. There we merely rejected the

defendant’s argument that § 351(e) required an attempt to commit a

battery. We didn’t need to decide whether the display of a weapon (without

an intent to instill fear) could constitute an assault under the common law.

Indeed, in Calderon, the defendant stepped forward, identified himself,

threw two eggs at a member of Congress, and announced why he had

thrown the eggs. 655 F.2d at 1038. His intent to instill fear was not an

issue.

         Unlike the government, the district court didn’t rely on Calderon.

The court instead relied on United States v. Ford, 613 F.3d 1263 (10th Cir.

2010), stating that it had clarified that “U.S.S.G. § 3A1.2(c)(1) is not to be

applied based on the subjective intent of the defendant.” R. vol. 1 at 76.

But Ford did not decide the need to prove subjective intent. The Ford court

instead assumed, for the sake of argument, that the government had needed

to prove intent. Ford, 613 F.3d at 1269 (“Mr. Ford’s conduct qualifies

under even ‘the most demanding standard’ of assault: conduct which places

another in reasonable apprehension of receiving a battery with intent to

‘cause apprehension’ or actual ‘bodily harm.’” (quoting United States v.

Robinson, 537 F.3d 798, 802–03 (7th Cir. 2008))). Ford said nothing to

                                        8
support application of the enhancement without proof of the defendant’s

intent.

      We thus gather little guidance from either Calderon or Ford. But

Lynch is instructive, treating a threat to hurt someone as an assault only if

the threat is intentional. See pp. 6–7, above. Lynch thus supports treatment

of assault as a specific-intent crime.

      C.    Other Circuits’ Interpretations of § 3A1.2

      The government also invokes three opinions (in other circuits)

interpreting § 3A1.2(c)(1) or its predecessor: (1) United States v.

Robinson, 537 F.3d 798, 802–03 (7th Cir. 2008); (2) United States v.

Olson, 646 F.3d 569, 572–74 (8th Cir. 2011); and (3) United States v. Lee,

199 F.3d 16 (1st Cir. 1999). These opinions provide us with little

guidance.

      Robinson applied § 3A1.2(c)(1) without deciding whether the

defendant had intended to instill fear of bodily harm. 537 F.3d at 802–03.

In dictum, the court doubted the applicability of this “stringent intent

requirement” under § 3A1.2(c). Id. at 803. But the court gave no

explanation for this doubt.

      In Olson, the Eighth Circuit didn’t have the occasion to address the

applicability of an intent requirement under § 3A1.2(c)(1). Olson, 646 F.3d

at 574 n.5 (stating that the court “need not, and do[es] not, decide whether

a mental state falling short of intent to cause fear could satisfy the

                                         9
common-law definition of ‘menacing’ assault for the purposes of

§ 3A1.2(c)”).

      Lee is inconsistent with our precedent. There the First Circuit held

that application of the predecessor to § 3A1.2(c) 2 turns on the “mere

knowledge of consequences,” not on the “purpose to cause fear.” Lee, 199

F.3d at 19–20. But the Lee court did not rest its holding on the common-

law definition of assault; the court focused instead on the policy of this

guideline to protect victims who are public officials. Id. The court

reasoned that the common-law definition of assault “does not clearly

resolve the question [of] what degree of scienter is required . . .: awareness

of consequences or something more purposeful.” Id.

      We respectfully disagree with the First Circuit’s reasoning. “Assault”

either requires intent (to instill fear) or it doesn’t. The difficulty of

answering this question does not allow us to dispense with the guideline

requirement of an assault because the victim was a public official. 3




2
     The provision appeared at that time in § 3A1.2(b). U.S.S.G. § 3A1.2
(1999).

3
      The government also argues that we need not follow the common-law
definition of assault because the guidelines focus on sentencing rather than
criminal liability. But § 3A1.2(c)(1) uses a term widely recognized in
criminal law: “assault.” This use of criminal-law terminology is common in
the guidelines. See, e.g., U.S.S.G. §§ 2L1.2 cmt. 2, 4B1.2(a)(2).
                                       10
3.    The district court’s error was prejudicial.

      The government contends that even if it had needed to show a

subjective intent to instill fear, we should find this intent. But we are not

the factfinder; the district court was, and it made no finding on Mr.

Gonzales’s intent.

      Though the district court didn’t make a finding on intent, the court

noted that Mr. Gonzales hadn’t presented evidence about his intent. But

Mr. Gonzales didn’t need to present such evidence; the burden of proof fell

on the government to trigger the enhancement. United States v. Campbell,

372 F.3d 1179, 1183 (10th Cir. 2004).

4.    Because the district court erroneously disregarded Mr.
      Gonzales’s subjective intent, we vacate his sentence and remand
      for further proceedings.

      The district court erred in concluding that subjective intent is

immaterial under § 3A1.2(c)(1). To the contrary, the § 3A1.2(c)(1)

enhancement would apply only if Mr. Gonzales had the specific intent to

put a law-enforcement officer in fear of serious bodily injury.

      On that issue, the parties presented different views of the evidence.

The government argues that Mr. Gonzales intended to instill fear of bodily

harm when he pulled the gun from his holster. Mr. Gonzales responds that

the evidence permitted a reasonable inference that he was trying to discard

the gun.



                                      11
      Both findings would be reasonable under the evidence. We can’t

resolve this conflict in the evidence because we aren’t a factfinder. The

district court is the entity entrusted with factfinding; and on remand, that

court should address the factual question of Mr. Gonzales’s intent. See

United States v. Manatau, 647 F.3d 1048, 1055 (10th Cir. 2011). We thus

vacate Mr. Gonzales’s sentence and remand for resentencing.




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