
USCA1 Opinion

	




          December 31, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No.  91-2303        No.  91-2303                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                  MICHAEL J. NEWMAN,                                  MICHAEL J. NEWMAN,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                 ____________________                                        Before                                        Before                                  Cyr, Circuit Judge,                                  Cyr, Circuit Judge,                                       _____________                            Roney,* Senior Circuit Judge,                            Roney,* Senior Circuit Judge,                                    ____________________                            and Pieras,** District Judge.                            and Pieras,** District Judge.                                          ______________                                 ____________________                                 ____________________             John A. MacFadyen for appellant.             John A. MacFadyen for appellant.             _________________             Craig  N.  Moore, Assistant  United  States  Attorney, with  whom             Craig  N.  Moore, Assistant  United  States  Attorney, with  whom             ________________        Lincoln C. Almond, United States Attorney, was on brief for appellee.        Lincoln C. Almond, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                 ____________________                                 ____________________                                 ____________________         *Of the Eleventh Circuit, sitting by designation.         *Of the Eleventh Circuit, sitting by designation.        **Of the District of Puerto Rico, sitting by designation.        **Of the District of Puerto Rico, sitting by designation.                    CYR,  Circuit Judge.    Michael J.  Newman appeals  his                    CYR,  Circuit Judge.                          _____________          conviction  and sentence  on one  count of  depriving a  pretrial          detainee of his civil rights  under color of law in violation  of          18 U.S.C.   242.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Viewed in the  light most favorable to the verdict, see                                                                        ___          United States  v.  Batista-Polanco, 927  F.2d  14, 17  (1st  Cir.          _____________      _______________          1991), the  evidence presented  at trial warranted  the following          jury findings.  On October 6, 1990,  Daniel Peterson was arrested          in  Providence, Rhode Island, for  drinking in public.   A record          check revealed outstanding warrants against  Peterson.  Appellant          Michael J. Newman  was the officer  in charge of  the cell  block          where Peterson was detained.                    After being  placed in a  cell, Peterson began  to yell          and scream, then  picked up the porcelain toilet  in the cell and          hurled it through the bars.  Appellant Newman and another officer          removed Peterson to a nearby  cell.  Peterson put up mild  resis-          tance and his wrists  were handcuffed to the cell  bars.  Shortly          after the officers left, Peterson resumed his yelling and scream-          ing,  which prompted  appellant  Newman to  return  to the  cell.          While  still handcuffed to the cell bars, Peterson was beaten and          kicked  in the stomach and head by appellant.  Peterson sustained          injuries  to his face, nose, eyes, and inner ear, and experienced          difficulty in breathing.  He remained  in a local hospital for  a          week, where he experienced dizziness, severe headaches, and other          physical pain.  Extensive medical tests proved negative.                    Newman was indicted, tried, and convicted for interfer-          ing with Peterson's  civil rights  under color of  law, and  sen-          tenced to  sixty months in prison  and a two-year term  of super-          vised release.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Appellant presents four claims.   First, he claims that          the court  committed error by excluding  certain "habit" evidence          proffered  under Federal Rule of  Evidence 406.   Second, he con-          tends that he  was entitled to a new trial  due to juror inatten-          tiveness.   Third,  he  disputes  the  finding that  the  alleged          assault  involved  "serious  bodily  injury."    Finally,  Newman          attempts for the first  time to assert that the  sentence imposed          pursuant to  U.S.S.G.    2A2.2(b) (3)(B) and  2H1.4(a)(2) had the          impermissible  effect of  "double counting"  any "serious  bodily          injury" inflicted on Peterson.                     A.   Evidence Rule 406          A.   Evidence Rule 406               _________________                    At trial, the defense attempted to introduce Providence          Police Sergeant MacDonald's testimony that he had seen between 75          and  100 prisoners handcuffed to the cell  bars, but never to the          first bar.  MacDonald's testimony was offered to support Newman's          testimony that he had handcuffed Peterson to the third bar of the                                          4          cell  and not to the first bar  as Peterson testified.  The issue          became material in light of the trial testimony of Daniel Greene,          a detainee  in  the same  cell block,  who claimed  to have  seen          Peterson's cuffed  hands protruding  through the bars  during the          assault.  The evidence demonstrated  that Greene could have  seen          Peterson's hands only if they were  cuffed to the first bar.  The          district  court  sustained  the  government's  objection  to  the          proffered testimony.                    Under  Rule  406,  competent  evidence  of  a  person's          "habit" may be admissible to prove conduct in conformity with the          habit on a particular occasion.  Reyes v. Missouri P. R. Co., 589                                           _____    __________________          F.2d 791, 794 (5th Cir. 1979); see also John H. Strong, McCormick                                         ___ ____                 _________          on  Evidence   195 (4th ed.  1992); 1A John  A. Wigmore, Evidence          ____________                                             ________            95  (Tillers rev. 1983).1  The party offering the evidence must          establish the habitual nature  of the alleged practice.   Weil v.                                                                    ____          Seltzer, 873  F.2d 1453, 1461  (D.C. Cir.  1989).  As  with other          _______          exclusionary rulings, the party challenging an exclusion of habit          evidence under Rule  406 bears the heavy  burden of demonstrating          on  appeal that the trial court abused its discretion.  McWhorter                                                                  _________          v. Birmingham, 906 F.2d  674, 675 (11th Cir. 1990);  Rosenburg v.             __________                                        _________                                        ____________________               1Evidence Rule 406 states:                  Evidence  of the habit of a person or of the routine               practice  of an  organization, whether  corroborated or               not and regardless of  the presence of eyewitnesses, is               relevant to  prove that  the conduct  of the  person or               organization on a particular occasion was in conformity               with the habit or routine practice.          Fed. R. Evid. 406.                                          5          Lincoln American Life  Ins. Co.,  883 F.2d 1328,  1337 (7th  Cir.          _______________________________          1989); Weil, 873  F.2d at  1460; United States  v. Troutman,  814                 ____                      _____________     ________          F.2d  1428,  1454 (10th  Cir. 1987);  see  also United  States v.                                                ___  ____ ______________          McCarthy, 961 F.2d 972, 977 (1st Cir. 1992) (we review rulings on          ________          the admissibility of evidence for "abuse of discretion").                    Habit evidence under Rule 406 may be probative of "'the          regular practice of meeting a particular kind of situation with a          specific  type of  conduct, such  as the  habit of  going down  a          particular stairway two stairs at a time, or of giving  the hand-          signal for  a left  turn . . . .'"   Fed. R. Evid.  406, advisory          committee's note  (quoting  McCormick, Evidence    195  at  826);                                                 ________          Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th          _______    ___________________________          Cir. 1985).    Although  there are  no  "precise  standards"  for          determining whether a behavior pattern has matured  into a habit,          two factors are considered  controlling as a rule:   "adequacy of          sampling and uniformity of response."  Fed. R. Evid. 406, adviso-          ry committee's notes; McWhorter, 906 F.2d at 679; G.M. Brod & Co.                                _________                   _______________          v. U.S. Home Corp., 759  F.2d 1526, 1533 (11th Cir.  1985); Loug-             _______________                                          _____          han, 749 F.2d at 1529; Weil, 873 F.2d at 1460; Reyes, 589 F.2d at          ___                    ____                    _____          795.   These  factors  focus on  whether  the behavior  at  issue          "occurred with sufficient regularity making it more probable than          not that it  would be carried  out in every  instance or in  most          instances."  Weil, 873 F.2d at 1460.  The requisite regularity is                       ____          tested by the  "'ratio of  reaction to situations.'"   Wilson  v.                                                                 ______          Volkswagen  of America, Inc., 561  F.2d 494, 512  (4th Cir. 1977)          ____________________________          (quoting  Lewan, Rationale of Habit Evidence, 16 Syracuse L. Rev.                           ___________________________                                          6          39, 51 (1964)),  cert. denied,  434 U.S. 1020  (1978); Weil,  873                           ____  ______                          ____          F.2d at 1461; Simplex, Inc.  v. Diversified Energy Systems, Inc.,                        _____________     ________________________________          847 F.2d 1290, 1294 (7th Cir. 1988).  It is essential, therefore,          that the regularity of the conduct alleged to be habitual rest on          an  analysis  of  instances  "'numerous enough  to  [support]  an          inference of systematic conduct'  and to establish 'one's regular          response to a repeated specific situation.'"  Wilson, 561 F.2d at                                                        ______          511 (quoting Fed. R. Evid. 406, advisory committee's notes).                    Appellant's  proffer failed  to demonstrate  the admis-          sibility of the  MacDonald testimony under  Rule 406.   Appellant          provided no foundation for assessing the adequacy of the sampling          to which MacDonald  would testify.   There was  no evidence  even          approximating the  number of  times prisoners were  handcuffed to          the cell bars.2  Absent some evidence of  the number of instances          in which  the handcuffing practice took place, we cannot conclude          that  the  district court  abused its  discretion.   An officer's          observation  of  75 to  100 such  instances  did not  require the                                                                _______          conclusion  that  the putative  practice  was  followed with  the          necessary regularity.   See  Brod,  759 F.2d  at 1533  (testimony                                  ___  ____          concerning  specific instances within experience of witness, when          considered in light of thousands of unobserved similar instances,          "falls  far short of the  adequacy of sampling  and uniformity of          response  which  are  the  controlling  considerations  governing          admissibility").                                        ____________________               2The district court nonetheless allowed appellant to testify          that he and other officers "always cuffed prisoners" to the third          bar.                                           7                    Other  considerations reinforce the conclusion that the          district court  did not  abuse its  discretion.   First, Sergeant          MacDonald testified  that there was  no "rule or  practice that's          followed"  about  where to  handcuff  prisoners  but that  "[t]he          officers involved . . .  at the time would decide where  to hand-          cuff them  and how to do it."   Second, we are  aware of no case,          and appellant cites  none, in  which the routine  practice of  an          organization, without more, has  been considered probative of the          conduct of a particular individual  within the organization.  See                                                                        ___          United States v. Angelilli, 660 F.2d 23, 41 (2d Cir. 1981), cert.          _____________    _________                                  ____          denied,  455 U.S. 910, cert.  denied, 455 U.S.  945 (1982) (ques-          ______                 ____   ______          tioning  whether  it is  proper on  the  basis of  the "ambiguous          structure  of Rule  406" to  infer individual  behavior  based on          evidence of routine practice of  the organization).  The  exclus-          ionary ruling under Evidence Rule 406 did not constitute error.          B.   Juror Inattentiveness          B.   Juror Inattentiveness               _____________________                    Appellant contends that the  district court (1)  failed          to  conduct adequate inquiry  into allegations  that one  or more          jurors slept  during portions  of the  trial,  and (2)  committed          reversible  error by  denying a  new trial  based on  the alleged          juror inattentiveness.                    At one  point during  trial, on July 10,  the presiding          judge observed  a juror who appeared  as though he  may have been                                          8          asleep.3  Immediately, the judge advised all counsel and  offered          to replace the juror with an alternate.  Defense counsel declined          the offer.  The  judge promptly and firmly cautioned  all members          of the jury on  the importance of devoting full  attention to the          evidence.   After  trial,  three putative  eyewitnesses submitted          letters recounting their observations  of one or more jurors  who          appeared to be sleeping during parts of the trial.4                      These letters  formed the basis for  appellant's motion          for new trial.  The district  court stated that it had "noted the          incidents in question and promptly brought it to the attention of                                        ____________________               3The presiding  judge described  the related events  as fol-          lows:               [D]uring  the trial I called counsel to the bench; as I               recall,  I told them that  I had observed  a juror with               his eyes closed and that the juror may have been sleep-               ing.  I did not say the juror was sleeping,  nor can it               be said  that he was.   I did not see  any jurors' head               fall  'to the  side' with  his chin  'on his  chest' as               described  by  one of  the  letter writers.    Both the               prosecutor  and the  defense counsel  acknowledged they               too had noticed what  I observed.  I offered  to excuse               the  juror and have him replaced with an alternate.  In               no uncertain terms, defense counsel objected.               4Each of the three letters describes one juror who  appeared          to be asleep.  Two of the  letters refer to July 10 and appear to          refer to  the same juror and the same incident.  According to one          letter, a juror in the back row slept for ten  minutes during the          testimony of Dr.  Welch.  The second letter refers  to a juror in          the back row who rested his head on the wall and appeared to have          his eyes closed  for about ten minutes,  but the letter does  not          indicate what  was transpiring in  the trial  at the  time.   The          third letter appears to  refer to another juror at  another time.          It  describes a juror in the front  row who slept through most of          the testimony of Dr. Green and when he awoke asked another juror:          "What  did he  say?"   The letter  states that  this juror  slept          during  the testimony of  a police officer and  on and off during          the testimony of all three doctors.  Although the letter does not          indicate  the date  on which  these  observations were  made, the          witnesses to which it refers testified on July 9 and July 10.                                          9          counsel in a[n] [unrecorded]  bench conference," but that defense          counsel  rejected the court's offer  to replace the  juror.5  The          court  noted further  that there  was no  firm evidence  that the          juror had been asleep.  The court offered to submit  to an inter-          rogation  on the record by defense counsel as to its recollection          of the incidents,  which was  confirmed by the  prosecutor.   The          proposal was not  endorsed by defense  counsel.  Defense  counsel          requested  neither  further  investigation,  nor  an  evidentiary          hearing, into the allegations  contained in the letters submitted          after trial.  The district court determined that any inattentive-          ness  which may have occurred was limited to "an isolated moment"          in a week-long trial, thus implicitly determining that  there had          been no prejudice  to appellant.   The motion  for new trial  was          denied.                      Appellant  belatedly  challenges  the adequacy  of  the          district  court's investigation  into the  letter allegations  of          juror  inattentiveness.  The gravamen of the unpreserved claim is          that the three letters allege  juror inattentiveness on more than          one  day and  apparently  by more  than  one juror,  whereas  the                        __________          district court merely addressed the inattentiveness of one juror,          on  July 10.  According to appellant,  the failure to investigate          these  letter allegations  rendered  it  impossible to  determine          whether he was deprived of a fair trial.                                        ____________________               5The  district  court noted  in  its  memorandum order  that          defense counsel vigorously opposed replacement of the inattentive          juror, as a denial  of defendant's "right to have  his case heard          by a juror of [his] choice."                                            10                    The "district  court has broad discretion  to determine          the type of investigation which must be mounted[]" in response to          an  allegation of juror misconduct.  United States v. Boylan, 898                                               _____________    ______          F.2d  230, 258 (1st Cir.),  cert. denied, 111  S. Ct. 139 (1990).                                      ____  ______          An evidentiary hearing is not  invariably required.  Id.  (citing                                                               ___          cases).  Rather, it is the responsibility of the  trial court "to          fashion a  responsible procedure for ascertaining whether miscon-          duct  actually occurred and  if so, whether  it was prejudicial."          Id.;  United States  v. Hunnewell,  891 F.2d  955, 961  (1st Cir.          ___   _____________     _________          1989).  A determination that no juror misconduct occurred will be          overturned only on  a showing  that the trial  court committed  a          "patent abuse of discretion."   Id.   Similarly, the denial of  a                                          ___          motion for new trial is reviewed for abuse of discretion.  United                                                                     ______          States v.  Soto-Alvarez,  958 F.2d  473,  475 (1st  Cir.),  cert.          ______     ____________                                     _____          denied, 113 S. Ct. 221 (1992); United States v. Dockray, 943 F.2d          ______                         _____________    _______          152, 157 (1st Cir. 1991).                    We  find no abuse of discretion in the district court's          handling of the allegations of juror inattentiveness, see Boylan,                                                                ___          898  F.2d at 258 ("district court has discretion to determine the          type of investigation which  must be mounted"), or in  its denial          of  the motion  for new  trial.   First, defense  counsel neither          requested an  evidentiary hearing  nor an investigation  into the          vague and conclusory allegations  contained in the three letters.          Indeed, the  presiding judge viewed the belated allegations as "a          disingenuous  attempt  to set  aside  the jury  verdict."   After          considering the  allegations, the court concluded  that the "inc-                                          11          idents" in question had been dealt with adequately by the earlier          offer, at the unrecorded bench  conference on July 10, to replace          an inattentive juror, and by the instruction reminding all jurors          of their duty to remain attentive.                    Insofar as  the court correctly  treated the  incidents          collectively recounted  in the three letters to have been consid-          ered and dealt  with at  the unrecorded bench  conference on  Ju-          ly 10, appellant  was entitled  to no further  relief.   Notwith-          standing the court's invitation, appellant chose not to challenge          the judge's  description as to what transpired  at the unrecorded          July 10 bench  conference,6 and opposed replacement  of the inat-          tentive  juror.  Appellant  will not now  be heard for  the first          time  to challenge  the district  court's determination  that the          entire  matter was dealt with during the unrecorded July 10 bench          conference.   See United States  v. Kimberlin, 805  F.2d 210, 244                        ___ _____________     _________          (7th Cir. 1986),  cert. denied,  483 U.S. 1023  (1987) (no  error                            ____  ______          where court brought to attention of counsel that a juror appeared          to be  sleeping, but  neither side requested  juror replacement).          On  the other hand, insofar  as appellant may  have believed that          the  three  letters  collectively  recounted one  or  more  other                                        ____________________               6In denying  the motion  for new trial,  the district  court          noted  that  "[t]he absence  of  a record  forces me  to  note my          personal  recollection,  which  varies  from  the  aforementioned          letters but  is corroborated  by the prosecutor.   I  feel it  is          unfair  to have my unrecorded statement go to the appellate court          without  affording counsel  an opportunity  to question it.   The          defendant's lawyer  is very experienced and  sophisticated and, I          am sure,  not awed by  any court.   If he wishes, I  am perfectly          willing  to have him interrogate  me on the  record, in chambers,          and attach a transcript  of our meeting as part  of this Memoran-          dum."                                          12          instances of juror  inattentiveness not dealt  with at the  unre-          corded bench conference, he  not only failed to avail  himself of          the opportunity to test the contrary recollection recorded by the          court but requested neither  further investigation nor an eviden-          tiary hearing, insisting  instead upon  a new trial  as the  only          acceptable  remedy.  Cf. United States v. Schnabel, 939 F.2d 197,                               ___ _____________    ________          201 (4th Cir. 1991)  (no prejudicial error in court's  refusal to          grant supplementary  voir dire  where defendant  declined court's          offer to excuse juror.)                      The  district court  did  not abuse  its discretion  in          concluding that no prejudicial juror misconduct occurred.          C.   U.S.S.G.   2H1.4(a)(2)          C.   U.S.S.G.   2H1.4(a)(2)               ______________________               1.  "Serious Bodily Injury"               1.  "Serious Bodily Injury"                    _____________________                    Section  2H1.4(a)(2) provides  that  the  base  offense          level for interference with civil rights under color of law is to          be set six levels above the base offense level for the underlying          offense.   At sentencing, the  district court determined that the          underlying  offense was  an  aggravated assault,  as it  involved          "serious bodily  injury."  See U.S.S.G.    2A2.2, comment. (n.1).                                     ___          Thus,  the base offense level was set at 21, then adjusted upward          four more levels, pursuant to U.S.S.G.    2A2.2(b)(3)(B), because          the  victim suffered  "serious  bodily injury,"  which yielded  a          total offense level of 25.                    At the  outset, appellant challenges the district court          finding that Peterson suffered  "serious bodily injury," which he          claims led the court into reversible error both in its determina-                                          13          tion  that  the  underlying  offense  constituted  an  aggravated          assault  and  in its  further  four-level  upward adjustment  for          causing "serious bodily injury."                    First,  we must determine  the appropriate  standard of          review.   The  parties agree  that whether  the assault  involved          "serious bodily  injury" presents  a mixed  question  of law  and          fact.   In  light of  their concession,  in  the present  case we          review  for "clear error."   Cf., e.g., United  States v. Pilgrim                                       ___  ____  ______________    _______          Market Corp., 944 F.2d 14, 17 (1st Cir. 1991) (concluding that 18          ____________          U.S.C.    3742(e)  and  First  Circuit precedent  require  "clear          error" review of the  mixed question of law and fact  relating to          the grouping of counts, even though other circuits  would conduct          de  novo review).7   Under  a "clear  error" standard  of review,          __  ____                                        ____________________               7"Plain  error"  may even  be  the  appropriate standard  of          review  in  the present  case.   Although  the issue  of "serious          bodily  injury" was  contested in  the district  court, appellant          inconsistently conceded that "the  base level of 21  obviously is          appropriate."  A base offense level of 21 would be appropriate in          the present  case only  if the assault  was "aggravated,"  rather          than  "minor."  Moreover, since  there is no  contention that the          offense involved  either a dangerous  weapon or intent  to commit          another felony, it could be determined an aggravated assault only          if it  involved "serious bodily injury."   Compare U.S.S.G.   2A-                                                     _______          2.2,  comment. (n.1)  ("'Aggravated  assault'  means a  felonious          assault  that involved (a) a  dangerous weapon with  intent to do          bodily harm . . ., or (b) serious bodily injury, or (c) an intent          to commit another felony.") with U.S.S.G.   2A2.3, comment. (n.1)                                      ____          ("'Minor  assault' means a . . . felonious assault not covered by            2A2.2").  Since the  adjusted base offense level of 21  was not          challenged  below,  ordinarily we  would  review  the finding  of          "serious bodily  injury"  only for  "plain error"  insofar as  it          served as  a predicate for the determination  that the underlying          offense constituted  an "aggravated assault."   See United States                                                          ___ _____________          v. Bello-Perez, No. 91-2232,  slip op. at 19 (1st  Cir. Sept. 29,             ___________          1992) (application  of guideline to specific  facts reviewed only          for "plain error" unless raised below); United States v. Morales-                                                  _____________    ________          Diaz, 925 F.2d 535, 540 (1st Cir.  1991) (same).  The issue is of          ____          no  practical consequence  in the  present case,  however,  as we                                          14          "where  more  than one  reasonable  inference may  be  drawn from          undisputed facts,  'the sentencing court's choice  among support-          able alternatives  cannot be clearly erroneous.'"   United States                                                              _____________          v.  Preakos, 907 F.2d 7, 8 (1st Cir. 1990) (quoting United States              _______                                         _____________          v. Ruiz,  905 F.2d  499, 508  (1st Cir.  1990)); see  also United             ____                                          ___  ____ ______          States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992).          ______    __________                    The  Sentencing  Guidelines   define  "serious   bodily          injury" as "injury involving extreme physical pain or the impair-          ment of a function of a bodily member, organ, or  mental faculty;          or requiring medical  intervention such as surgery,  hospitaliza-          tion,  or physical  rehabilitation."   U.S.S.G.   1B1.1(j).   The          sentencing court supportably found that Peterson sustained injury          to his inner ear.  The ear  is "the organ of hearing and equilib-          rium,"   which includes  "a fluid-filled internal  ear that main-          tains balance  and that conducts  the tympanic vibrations  to the          auditory nerve, which transmits  them as impulses to  the brain."          Random House, Unabridged (2d ed. 1987), at 613.  Medical testimo-          ____________          ny was  presented that upon  entering the hospital  Peterson com-          plained of  dizziness and tinnitus.  While  tests were "unreveal-          ing,"  the  examining neurosurgeon  testified  that  it was  "not          unusual"  for  inner ear  damage to  be  evidenced solely  by the          patient's   "subjective  complaints."    Moreover,  Peterson  was          hospitalized for six days as a result of the beating administered          to his head, which  caused severe headaches, facial bruising  and          hemorrhaging  around the eyes and under the scalp, in addition to                                        ____________________          discern neither "clear" nor "plain" error.                                          15          the inner ear injury.  See U.S.S.G.   1B1.1(j) (defining "serious                                 ___          bodily  injury" as  "injury involving  extreme physical  pain" or                                                                         __          "impairment  of a bodily . . . organ  . . .," or "requiring . . .                                                        __          hospitalization . . . .").                    We discern  no  clear error  in  the finding  that  the          assault caused "serious bodily injury."               2.   "Double Counting"               2.   "Double Counting"                     _______________                    Finally,  Newman claims  for  the first  time that  the          district court engaged in impermissible "double counting," as the          four  level increase  in  the base  offense  level, see  U.S.S.G.                                                              ___            2A2.2(b)(3)(B), was predicated on  the same finding of "serious          bodily  injury" that prompted the fifteen level adjustment in the          base  offense   level  for   the  underlying  offense,   see  id.                                                                   ___  ___            2H1.4(a)(2), "aggravated assault," see id.   2A2.2(a).                                               ___ ___                    As the "double counting" claim was not raised below, we          consider  whether  it may  be raised  on  appeal.   Although pure          issues  of law  may be  raised for  the first  time on  appeal in          "exceptional cases,"  normally we  will entertain  an unpreserved          legal claim only if the failure to  do so would result in a "rank          miscarriage  of justice."  See  United States v.  La Guardia, 902                                     ___  _____________     __________          F.2d  1010, 1012-13  (1st  Cir. 1990)  (listing factors);  United                                                                     ______          States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982) (same).          ______    ________                    The district court sentenced  defendant to 60 months in          prison.   Were it not for  the challenged four level  increase in          appellant's base  offense level under  U.S.S.G.   2A2.2(b)(3)(B),          which yielded a  57-to-71 month GSR,  the total adjusted  offense                                          16          level would have been 21, yielding a 37-to-46 month GSR.   Assum-          ing the challenged four level increase was impermissible, yet not          reviewable  on appeal, Newman would be compelled to serve no less          than fourteen  months longer than the  maximum sentence allowable          under the appropriate GSR.  We are persuaded, therefore, that the          requisite  showing  has been  made  for  discretionary review  of          appellant's unpreserved claim.                    After  supportably  finding  that  the  assault  caused          "serious bodily  injury," the sentencing court  calculated appel-          lant's base  offense level  in  exact accordance  with the  plain          language of  the applicable  sentencing guidelines.   Pursuant to          U.S.S.G.   2H1.4(a)(2), the  court set the base offense  level at          21     six  levels above  the base  offense level  of 15  for the          underlying offense  of "aggravated assault," see U.S.S.G.   2A2.2                                                       ___          (b) ("a  felonious assault that involved . . . (b) serious bodily          injury")    then increased  it four levels, pursuant  to U.S.S.G.            2A2.2(b)(3)(B),  because the  victim sustained  "serious bodily          injury."   Thus, the first hurdle appellant must overcome is that          the   applicable  sentencing  guidelines  expressly  mandate  the          "double counting" challenged on appeal.8                                          ____________________               8Although no  appellate court  has yet considered  this par-          ticular "double  counting" issue,  there is a  divergence between          the  two  courts of  appeals  which  have addressed  the  closely          analogous question  whether a defendant's base  offense level can          be increased  pursuant to  U.S.S.G.   2A2.2(b)(2)(a) for  using a          dangerous weapon, notwithstanding that the same factor formed the          _________ ______          predicate  for  finding  the  underlying  offense  an  aggravated          assault,  see U.S.S.G.    2A2.2(a), comment.  (n.1) ("'aggravated                    ___          assault' means a felonious assault that involved (a)  a dangerous          weapon  with intent to do bodily harm . . .").  See United States                                                          ___ _____________          v. Williams,  954  F.2d  204, 206-08  (4th  Cir.  1992)  ("double             ________                                          17                    As with statutory language,  see, e.g., North Dakota v.                                                 ___  ____  ____________          United States, 460 U.S. 300, 312 (1983); Benoni v. Boston & Maine          _____________                            ______    ______________          Corp., 828  F.2d 52, 57 (1st  Cir. 1987), we think  the plain and          _____          unambiguous language  of a sentencing guideline  affords the best          recourse  for its  proper  interpretation, cf.  United States  v.                                                     ___  _____________          Williams, 954  F.2d 204, 206  (4th Cir. 1992)  ("double counting"          ________          required since  Sentencing Guidelines  "must be applied  as writ-          ten"); United  States v.  Florentino, 922 F.2d  1443, 1446  (10th                 ______________     __________          Cir.  1990)  ("double  counting"  permissible  where  "clear  and          unambiguous" guideline language indicates Commission so intended)          (applying   2L1.1  adjustment  for prior  conviction already  re-          flected in criminal history category).  Furthermore, the district          court's application of U.S.S.G.   2A2.2(b)(3)(B) accords with the          apparent  intent of  the Sentencing  Commission as  evidenced not          only by the plain and unambiguous guideline language but by other          intrinsic considerations as well.   For example, the Commission's          awareness of the sentencing  excesses which flow from impermissi-                                                                ___________          ble  "double counting"  is plainly  reflected in  other guideline          ___          application notes  expressly forbidding it.   See, e.g., U.S.S.G.                                                        ___  ____            3A1.1 comment.  (n.2)  (no  "victim  related"  adjustment  when          offense guideline specifically incorporates same   3A1.1 factor);          _______            3A1.2 comment. (n.3) (same);   3A1.3 comment. (n.2) (same); cf.                                                                        ___            3D1.2 comment.  (n.5) (application  note governing  grouping of          closely  related  counts  "prevents  double counting  of  offense                                                                    _______                                        ____________________          counting"  required); but see  United States v.  Hudson, 972 F.2d                                ___ ___  _____________     ______          504, 506-07 (2d Cir. 1992) (expressly disagreeing with Williams).                                                                 ________                                          18          behavior.") (emphasis added).   "Under the principle of expressio                                                                  _________          unius est  exclusio alterius, the enumeration  of specific exclu-          _____ ___  ________ ________          sions from the operation of  a statute is an indication that  the          statute  should apply  to all  cases not  specifically excluded."          United States v. Rocha, 916 F.2d  219, 243 (5th Cir. 1990), cert.          _____________    _____                                      ____          denied,  111 S. Ct. 2057 (1991) (citing United States v. Vickers,          ______                                  _____________    _______          891 F.2d 86,  88 (5th  Cir. 1989) ("double  counting" for  ransom          demand pursuant  to   2A4.1(b)(1)  and for extortion  pursuant to            2A4.1(b)(5) not  improper)); United States v.  Curtis, 934 F.2d                                         _____________     ______          553, 555 (4th Cir. 1991) ("double counting" for more than minimal          planning under    2B1.1(b)(4) and as organizer  and manager under            3B1.1(c) not improper); see also United States v.  Goolsby, 908                                    ___ ____ _____________     _______          F.2d 861, 863 (11th Cir. 1990) (refusing "to fashion an exception          [to "double counting"] since  the Commission has demonstrated its          ability  to do so in those areas it has deemed an exception to be          appropriate") (crime  of escape considered under  both   4A1.1(d)          and   2P1.1(a)(1)).  Cf. United States v. McInnis, 976 F.2d 1226,                               ___ _____________    _______          1233-35 (9th Cir. 1992) (applying   2H1.3(a)(2),(3) where "under-          lying offense"  was deemed an aggravated assault  per   2A2.2(b)-          (3)(B)) ("double counting" not  addressed); but cf. United States                                                      ___ ___ _____________          v. Hudson, 972 F.2d 504, 507 (2d Cir. 1992) (it is not the law in             ______          the Second  Circuit that "double counting  is always permissible,          except  when explicitly  forbidden  by  the Guidelines")  (citing          cases);  United States  v. Romano,  970 F.2d  164, 167  (6th Cir.                   _____________     ______          1992) (defendant should not  be penalized for same  conduct under          two different guideline provisions "whether or not the Guidelines                                          19          expressly prohibit"  doing so);  United States v.  Werlinger, 894                                           _____________     _________          F.2d 1015, 1017  (8th Cir.  1990) (rule of  lenity requires  that          Guidelines  not be  readily construed  to multiply  punishment of          conduct  already  punished  through  the  application of  another          guideline provision);  United States  v. Adeleke, 968  F.2d 1159,                                 _____________     _______          1161 (11th  Cir. 1992) ("double counting" proper "if the Sentenc-          ing  Commission intended the result, and if the result is permis-                                               ___          sible  because  'each  section  concerns   conceptually  separate          notions  relating  to  sentencing'") (quoting  United  States  v.                                                         ______________          Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991)) (emphasis added).           _______                    Closer  to home, U.S.S.G.    2H1.4 itself reflects that          it was drafted with the excesses of impermissible  "double count-          ing" clearly in mind.  In prescribing that the base offense level          for interfering with civil rights under color of law is to be the          greater of  level 10, or  6 levels above  that of the  underlying          offense  (here,  aggravated assault),  the  guideline application          note  to U.S.S.G.   2H1.4  first directs the  sentencing court to          the section 2H1.1  commentary, U.S.S.G.   2H1.4,  comment. (n.1),          then  mandates:  "Do not apply the adjustment from   3B1.3 (Abuse          of  Position of  Trust or  Use of  Special Skill),"  id.   2H1.4,                                                               ___          comment.  (n.2), "because  the base  offense level  in   2H1.4(a)          reflects that the abuse of actual or purported legal authority is          inherent  in  the  offense,"  id.    2H1.4,  comment.  (backg'd.)          ________                      ___          (emphasis added).   By way  of contrast, section  2H1.4 gives  no          indication  whatever  that the  offense level  should not  be in-          creased  where the  person who  is deprived  of his  civil rights                                          20          under  color of  law sustains  bodily injury,  as in  the present          case.  We believe  the reason is clear:  bodily injury  is not an                                                                     ___          inherent characteristic of the  offense of interfering with civil          rights under color of law.                    Moreover, the immediately preceding guideline, U.S.S.G.            2H1.3  (Use of  Force or  Threat of Force  to Deny  Benefits or          Rights  in Furtherance  of Discrimination:   Damage  to Religious          Real Property), represents a deliberate  Commission determination          to increase the base  offense level for a civil  rights violation          if the defendant inflicts  bodily injury on the victim.   Section          __          2H1.3 prescribes alternative base offense level increases depend-          ing  on whether  the victim  sustained injury.   Id.    2H1.3(a)-                                                           ___          (1),(2) (increase by 10  if no injury occurred;  by 15 if  injury          occurred).  The section 2H1.3 commentary, appearing  a scant four          lines above  section 2H1.4 (Interference with  Civil Rights Under          Color of Law),  explains:  "The base offense level  in   2H1.3(a)                                      ___ ____ _______ _____  __ _ ________          reflects  that the  threat  or use  of force  is inherent  in the          ________  ____ ___  ______  __ ___  __ _____  __ ________  __ ___          offense."  U.S.S.G.   2H1.3 comment. (backg'd.) (emphasis added);          _______          to which we would add, simply:  unlike the offense of interfering          with civil rights  under color of  law, see id.,    2H1.4,  which                                                  ___ ___          involves  neither bodily injury nor the  threatened or actual use                    _______               ___          of force as an inherent offense characteristic.                         ________                    Finally,  applying  these   sentencing  guidelines   in          accordance  with  their plain  and unambiguous  language promotes          proportionality  in sentencing, an important congressional objec-          tive  of guideline sentencing.  U.S.S.G., Ch. 1, Pt. A, intro. 2,                                          21          p.s. (Congress  sought "proportionality  in sentencing  through a          system that imposes appropriately  different sentences for crimi-          nal  conduct  of differing  severity").    U.S.S.G.   2A2.2(b)(3)          prescribes incremental sentence adjustments scaled to the severi-          ty of  the bodily injury inflicted  on the victim.   For example,          while  "serious bodily  injury" requires  a four  level increase,          "permanent or  life-threatening bodily injury" necessitates a six          level increase.   U.S.S.G.   2A2.2(b)  (3)(B-C).  If  we were  to          conclude, as  appellant urges, that impermissible  "double count-          ing" resulted from  the four level  increase for "serious  bodily          injury," no  increase in the  offense level would  be permissible          even for  the more egregious  infliction of  "permanent or  life-          threatening bodily injury,"  see id.   2A2.2(b)(3)(D),  where the                                       ___ ___          assault likewise was determined to have been  aggravated in light          of the degree of bodily injury sustained by the victim, see id.                                                                    ___ ___          2H1.4(a)(2).   The carefully calibrated offense  level adjustment          scheme prescribed in  U.S.S.G.   2A2.2(b)(3),  cf. Williams,  954                                                         ___ ________          F.2d  at 206 (  2A2.2(b)(2)  "rationally reflects the Guideline's          graduated adjustment  scheme" for possessing a  weapon), would be          disarranged in such cases, as the base offense level could not be          increased  either in  response  to an  assault which  caused "pe-          rmanent or life-threatening  injury," U.S.S.G.    2A2.2(b)(3)(D),          or one which caused "serious bodily injury," U.S.S.G.   2A2.2(b)-          (3)(C).                    Thus, in  sum, we  think the carefully  structured sen-          tencing scheme in Chapter Two,  Part H, as a whole, no  less than                                                  __ _ _____                                          22          U.S.S.G.   2H1.4 in particular,  constitutes a considered resolu-                                                                    _______          tion of the "double counting" issue raised on appeal, rather than          ____          evidence of the Commission's  failure to recognize it.   As there          was no impermissible "double  counting," we reject the contention          that the district court  was required to disregard the  plain and          unambiguous  language of U.S.S.G.    2A2.2(b)(3)(B) and 2H1.4(a)-          (2).                    For the foregoing reasons,  the sentence imposed by the          district court must be affirmed.                    Affirmed.                    Affirmed.                    ________                                          23
