                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                   ______________________________

                             NO. 91-2723
                    ______________________________

UNITED STATES OF AMERICA
                                                 Plaintiff-Appellee
-vs-

CURTIS DELASKIO MOORE
                                                Defendant-Appellant



            Appeal from the United States District Court
                 for the Southern District of Texas




                           (April 6, 1992)

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.1

LITTLE, District Judge:



       Curtis Delaskio Moore appeals his conviction on one count of

assaulting a federal officer with a deadly weapon in violation of

18 U.S.C. § 111, and one count of using a firearm during the

commission of a predicate felony in violation of 18 U.S.C. §

924(c).    We affirm the convictions and remand for resentencing.

                              I.   FACTS

       On the night of 13 April 1990, agents of the Houston Police

Department, the Federal Drug Enforcement Agency ("DEA"), and the


       1
       District Judge of the Western District of Louisiana,
sitting by designation.
U.S. Customs      Service   executed   a    search   warrant    at   6338   West

Montgomery   in    Houston,   Texas,   a    suspected   crack    house.     Ten

plainclothes officers, wearing jackets emblazoned with "Houston

Police Department" or "DEA" in large reflective letters, were

joined by four uniformed officers.           Street lights, mercury lights

in a neighbor's yard, and a porch light all illuminated the front

of the house.     Additional light was provided by a floor lamp in the

kitchen window and a mercury light from the street behind the

house. As DEA Agent Kevin Blair and Houston Police Officer Ranaldo

Ollie approached the back of the house through the driveway, they

observed a man walk towards a car in the driveway, open the door,

and sit down in the driver's seat.           Curtis Moore, the defendant,

then exited the house and approached the car to speak with the

driver.   Although disputed at trial, Officer Ollie testified that

he shouted, "Police!" "Stop!"              He further testified that the

identifying letters on his jacket, Houston Police Department, were

clearly visible.       Moore turned toward Officer Ollie and began

shooting.    Officer Ollie was wounded in this confrontation.

     Agent Blair, who accompanied Officer Ollie up the driveway and

wore a jacket with "DEA" across the front and back, was also fired

upon by the defendant.        Moore's attempt to escape by climbing a

fence was thwarted by the police.          Both Blair and Ollie identified

Moore at the scene as the individual who fired upon them.

     At trial, Moore testified that he did not have a firearm in

his possession when he arrived at the house, but purchased it that

evening from two unknown people who arrived uninvited at the house

on a motorcycle.     Moore also stated that he initially saw only one

man jump out from the corner of the house, Officer Ollie of the

                                       2
HPD, and that he did not hear anyone yell "police."                    The adverse

decision from the jury formed the predicate for the district court

sentence of fifty-four months on count one, sixty months on count

two, and a three year term of supervised release.

                                  II.   ISSUES

     Moore has raised seven issues on appeal.                   First, there was

insufficient evidence to establish that the defendant knew that

Kevin Blair   was    an   officer.          Second,    there    was    insufficient

evidence to sustain the conviction for assault on a federal officer

because the intended victim was a state officer.                        Third, the

district court improperly refused to instruct the jury on a lesser-

included misdemeanor offense of obstructing, resisting or opposing

a federal officer.        Fourth, Moore's federal prosecution, after

prosecution in state court for offenses that arose out of the same

criminal   transaction,     was    precluded      by    the     sham   prosecution

exception to the dual sovereignty rule.               Fifth, the district court

erred in its application of the Sentencing Guidelines.                   Sixth, the

trial court erred in determining an appropriate guideline sentence

by improperly using confidential information.                  Seventh, the trial

court violated defendant's double jeopardy rights by imposing a

mandatory consecutive five year sentence for use of a deadly

weapon, which constituted an essential element of 18 U.S.C. §

924(c) and § 111.    We will review each separately.

                    A.    SUFFICIENCY OF THE EVIDENCE

     When reviewing an appeal based on the insufficiency of the

evidence, the evidence and all reasonable inferences that may be

drawn must be viewed in the light most favorable to the verdict.

U.S. v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989).                  The evidence

                                        3
is sufficient to sustain the verdict if a reasonable trier of fact

could have found that the government proved all of the essential

elements of the crime         beyond a reasonable doubt.             Id.     The

government must prove that the defendant was guilty beyond a

reasonable doubt, not merely that he could have been guilty.                 See

U.S. v. Litterell, 574 F.2d 828, 832 (5th Cir. 1978); U.S. v.

Sacerio, No. 90-1637, slip op. (5th Cir. 22 Jan. 1992).

            1.    Moore had Knowledge and No Justification

      Title 18 U.S.C. § 111 punishes by fine or imprisonment, or

both, anyone who "forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with a [federal officer] engaged in or

on account of the performance of his official duties."               18 U.S.C.

§ 111.     In U.S. v. Feola, the Supreme Court held that the only

criminal intent required in order to violate § 111 is the intent to

do the acts specified.       420 U.S. 671, 686, 95 S.Ct. 1255, 43 L. Ed.

2d 541 (1975).      There is no requirement that the defendant be aware

of the official status of the person assaulted.              Id. at 686.

      Appellant     argues   that   the   evidence     was   insufficient    to

establish that he knew that Agent Blair was a federal official.

Moore asserts that he reacted because he feared for his life and

had   to   defend    himself.       In    order   to   refute    a   claim   of

justification or self-defense, the Government must show that the

defendant knew of the victim's status or that the defendant's

actions were not reasonably justified.            U.S. v. Ochoa, 526 F.2d

1278, 1281-82 (5th Cir. 1976).           Even a cursory inspection of the

facts reveals that each officer was dressed in a jacket that bore

the letters "DEA" or "HPD." Additionally, the testimony of Officer

Ollie and other officers, disputed only by the testimony of the

                                      4
defendant,         reveals    that    when     Ollie    approached      the   defendant

standing by the car, the officer said before firing the first shot,

"Police!" "Stop!"             Stanley Green, the man to whom Moore was

speaking      when     the    shooting     began,      corroborated     the   officer's

testimony. Green testified that he heard Ollie shout "police." He

also heard other officers' voices transmitted over their portable

radios during the incident.

     Even if Moore was unaware of Agent Blair's official status as

a Drug Enforcement Agent, based on the facts, he certainly knew

that he was a law enforcement officer.                  When Moore disregarded the

officers' directives to stop and proceeded to shoot during their

attempt to execute a search warrant, the essential elements of the

offense were satisfied.

        2.    Moore's Intention to Assault an Officer of the Law

     Although Ollie, the Houston police officer, was the one

injured,       there    was       sufficient       evidence   adduced    at   trial     to

establish that the defendant intended to shoot Agent Blair, the

federal agent, as well.                 Once Ollie was struck, there is no

evidence to indicate that the defendant discontinued his fire.                          On

the contrary, once Ollie was shot he jumped behind the car in the

driveway for protection.              Even so, Moore continued firing at both

officers.          Blair stated that "he felt a bullet sail right past

him."

     By his own testimony, the defendant admitted that he saw the

shadow of a man at the corner of the house [Agent Blair], heard

shots,       and   began     to    fire.     As     previously   stated,      §   111   as

interpreted by Feola, does not require that the defendant intend to

assault a federal officer; all that is required is an intent to

                                               5
assault.   U.S. v. Feola, 420 U.S. 672 at 684.




                                 6
                    B.   LESSER-INCLUDED OFFENSE

     The appellant argues that the trial court committed reversible

error when it refused to instruct the jury on the lesser-included

offense of obstructing, resisting, or opposing a federal officer in

violation of 18 U.S.C. § 1501.2     There are three well-established

criteria for determining whether a defendant is entitled to have

the jury instructed as to a lesser-included offense.            U.S. v.

Gampino, 680 F.2d 898, 901 (5th Cir. 1982).           First, all of the

elements of the lesser-included offense must also be elements of

the offense charged.     Id.   Second, to be "lesser," the uncharged

included offense must be composed of fewer than all of the elements

comprising the offense charged.        Id.   Finally, "a lesser-included

offense instruction is only proper where the charged greater

offense requires the jury to find a disputed factual element which

is not required for conviction of the lesser included offense."

U.S. v. Gampino, 680 F.2d 898, 901 (5th Cir. 1982).            The only


     2
         Title 18 U.S.C § 1501 provides that:

           Whoever knowingly and willfully obstructs,
           resists, or opposes any officer of the United
           States, or other person duly authorized, in
           serving, or attempting to serve or execute,
           any legal or judicial writ or process of any
           court of the United States, or United States
           commissioner [magistrate]; or

           Whoever assaults, beats, or wounds any
           officer or other person duly authorized,
           knowing him to be such officer, or other
           person so duly authorized, in serving or
           executing any such writ, rule, order,
           process, warrant, or other legal or judicial
           writ or process ---

           Shall, except as otherwise provided by law,
           be fined not more than $300 or imprisoned not
           more than one year, or both.

                                   7
factual element required for a § 111 violation that is not included

within a § 1501 violation is the threat or use of force.

     Here, it is undisputed that Moore fired a weapon in the

direction of Officers Ollie and Blair.         The only disputed issue at

trial was whether Moore shot at someone other than Ollie and

whether Moore had the requisite criminal intent necessary to commit

a § 111 violation.     Whether he actually used force was not disputed

and thus the trial court did not err when it refused to instruct

the jury on the lesser-included offense.

                       C.   DOUBLE JEOPARDY CLAIM

     It is well-established that a double jeopardy claim cannot be

raised when an individual is prosecuted for the same act that

violates the laws of dual sovereigns.      Heath v. Ala., 474 U.S. 82,

89-90, 106 S.Ct. 433, 88 L. Ed. 2d 387 (1985).         The only deviation

from the "dual sovereignty" rule is found in the "sham prosecution"

exception.    Bartkus v. Ill., 359 U.S. 121, 79 S.Ct. 676, 3 L. Ed.

2d 684 (1959). This narrow exception bars a subsequent prosecution

if the "two sovereigns were so intertwined that the state in

bringing   its    prosecution   was   merely    a   tool   of   the   federal

authorities, who thereby avoided the prohibition of the Fifth

Amendment against a retrial of a federal prosecution after an

acquittal."      Id.

     On appeal, Moore argues, for the first time, that the federal

prosecution was a sham or tool of the state prosecution because the

state essentially "lost" the first case against him.3            The Federal

     3
        Defendant considers the state's prosecution a loss in
this case because, although charged with shooting a police
officer, Moore was convicted of a lesser-included offense and was
given probation.

                                      8
Rules of Criminal Procedure provide that defenses and objections

based on the prosecution of the case must be raised at trial or

they are waived.      Fed. R. Crim. P. 12(b), (f).            At trial, the

defendant made a motion to dismiss the charges on double jeopardy

grounds, but failed to raise specifically the "sham prosecution"

exception.   Although appellant mentions several times in his brief

that the trial judge was aware of the state prosecution and wanted

to keep this information from the jury, there is no indication that

this concern was prompted by evidence presented by the defendant on

the applicability of the exception in this case.               Even if this

court had found that the defendant had properly raised the "sham

prosecution" exception at trial, it is clear that the defendant

committed two separate and independent acts, one against a state

officer and the other against a federal officer, violating the laws

of two different sovereigns. The appellants argument on this issue

thus has no merit.

               D.     QUESTIONS OF ERROR AT SENTENCING

                 1.     Application of the Guidelines

     Prior to the imposition of sentence, the probation and parole

office in this case prepared a presentence report that was later

adopted by the trial court.       The probation department determined

that § 2A2.2(b)(3) of the Sentencing Guidelines was applicable in

this case because Officer Ollie of the Houston Police Department

was actually injured.        Section 2A2.2(b)(3) of the Sentencing

Guidelines   provides     that   when    a   defendant   is   convicted   of

aggravated assault:

          If the victim sustained bodily injury,
          increase the offense level according to the
          seriousness of the injury:

                                     9
             (B) Serious Bodily Injury add 4.

Although the probation officer who prepared the report recognized

that the federal agent, the "victim" contemplated by 18 U.S.C.

§111, had not been injured, it was still recommended that Moore's

base offense level be increased by four. In his written objections

to the presentence report, the defendant argued that the "victim"

contemplated by the guidelines is the victim of the aggravated

assault.     The district court adopted the presentence report over

the defendant's objections, and sentenced the defendant to fifty-

four months on count I and sixty months on count II.

     A defendant's sentence "must be upheld unless he demonstrates

that it was imposed in violation of the law, as a result of an

incorrect application of the guidelines, or was outside of the

range of the applicable guidelines and is unreasonable."                    United

States v. Goodman, 914 F.2d 696, 697 (5th Cir. 1990).                    Here, the

record is devoid of any evidence suggesting that Agent Blair

received any injuries at the hands of defendant Moore.                    A plain

sense reading of the term "victim" in § 2A2.2(b)(3) leads one to

conclude that the "victim" must be the object of the aggravated

assault.     Id.     There is no justification for adding four points

when the only person injured was Officer Ollie, the city police

officer.     Moore is entitled to be resentenced, and we will remand

for that limited purpose.

        2.    Use of Confidential Information at Sentencing

     The defendant argues that the trial judge erred in considering

confidential       information   during       sentencing    without   giving   the

defendant    an    opportunity    to   comment     on   the   information.      At

sentencing,       the   trial    judge    stated     that     he   had    received

                                         10
confidential information from a reliable and credible source who

indicated that the defendant had a history of substance abuse,

including the use of crack cocaine.    The trial court found this

information to be enlightening to explain the defendant's presence

at a suspected crack house.   The accuracy of the defendant's claim

that he did not know that Ollie and Blair were law enforcement

officers also may have been affected by defendant's substance

abuse.   Whether Moore knew the two men were officers was relevant

in determining if he was entitled to an adjustment under the

guidelines for acceptance of responsibility.   After the court made

its revelation, the record does not reflect an attempt by counsel

to challenge the accuracy of the information presented.

     The trial court exempted disclosure of the identity of the

source of the information pursuant to Rule 32(c)(3)(A) of the

Federal Rules of Criminal Procedure.   The rule states in part:

     [T]he court shall provide the defendant and the
     defendant's counsel with a copy of the report of the
     presentence investigation, including the information
     required by subdivision (c)(2) . . . , and not to the
     extent in the opinion of the court the report
     contains . . . sources of information obtained upon a
     promise of confidentiality; or any other information
     which, if disclosed, might result in harm, physical or
     otherwise, to the defendant or other persons. The court
     shall afford the defendant and the defendant's counsel an
     opportunity to comment on the report and, in the
     discretion of the court, to introduce testimony or other
     information relating to any alleged factual inaccuracy
     contained in it.

     (B)    If the court is of the view that there is
     information in the presentence report which should not be
     disclosed under subdivision (c)(3)(A) of this rule, the
     court in lieu of making the report or part thereof
     available shall state orally or in writing a summary of
     the factual information therein to be relied on in
     determining sentence, and shall give the defendant and
     the defendant's counsel an opportunity to comment
     thereon. The statement may be made to the parties in
     camera.

                                 11
Fed. R. Crim. P. 32(c)(3)(A), (B).

     Defendant now contends that he was not given the opportunity

to comment upon or address the court about this confidential

information. The sentencing phase is the appropriate time at which

to raise any objections to the presentence investigation and any

other matters that concern sentencing. The record does not reflect

that the defendant's counsel objected to the introduction of this

information, requested a side bar, challenged the accuracy of the

information, or requested an in camera conference.                His only

interjection    at    the   time   of    sentencing   concerned    certain

"housekeeping matters."

     Rule 32 does not require that the trial court disclose the

name of a confidential source contained in the presentence report,

but the court is required to state a summary of the factual

information upon which it relies.          United States v. Johnson, 935

F.2d 47, 51 (4th Cir. 1991) (citing United States v. Houston, 745

F.2d 333 (5th Cir. 1984), cert denied, 470 U.S. 1008, 105 S.Ct.

1369, 84 L. Ed. 2d 388 (1985)).          Once the facts are disclosed to

the defendant and his counsel, Rule 32 places the burden upon the

defendant to comment upon the factual accuracy contained in the

disclosure.    The defendant did not assert a timely comment.         Even

in these proceedings, there is no claim made that the trial judge's

information was inaccurate.

                 3.   Enhancement for Use of a Weapon

     Section 924(c) of the Sentencing Guidelines provides that an

additional five years may be added to the punishment of a felony,

if a firearm was used in the commission of that felony.           Appellant

contends that his sentence was twice enhanced under the guidelines

                                    12
for using a weapon pursuant to 18 U.S.C. § 111 (Count I) and

§ 924(c) (Count II).    Refuting appellant's claim of error on this

issue requires only a review of the presentence investigation

report, which states:

     U.S.S.G. § 2A2.2(b)(2) indicates that if a firearm was
     discharged, the offense level is to be increased by 5.
     However, since count 2 sanctions the defendant for this
     behavior, this specific offense characteristic is not
     applied pursuant to Application Note. N. 2 of U.S.S.G. §
     2K2.4. (Emphasis added.)

7 R. 5.   The Application Notes and background of § 2K2.4 of the

guidelines further provide:

     2.   Where a sentence under this section is imposed
          in conjunction with a sentence for an
          underlying offense, any specific offense
          characteristics for the possession, use or
          discharge of a firearm (e.g. § 2B3.1(b)(2)(A)-
          (F) (Robbery)) is not to be applied in respect
          to the guideline for the underlying offense.

Background:   18 U.S.C. §§ 924(c) and 929(a) provide mandatory
minimum penalties for the conduct proscribed.      To avoid double
counting, when a sentence under this section is imposed in
conjunction with a sentence for an underlying offense, any specific
offense characteristic for firearm discharge, use or possession is
not applied in respect to such underlying offense.

U.S.S.G. § 2K2.4, n. 2.

     The presentence report prepared by the probation and parole

department was adopted by the trial court.     The language of the

report clearly reveals that the prohibition against double counting

when the defendant is charged with a violation of 18 U.S.C. §

924(c) was acknowledged and accepted.   The enhanced sentencing for

the discharge of a firearm was not added to the defendant's base

level offense.   Appellant's claim is unsupported by the facts and

thus has no merit.




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                        III.   CONCLUSION

    Moore's convictions are AFFIRMED but his sentence is vacated

and the matter REMANDED for resentencing in accordance with this

opinion.




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