     Case: 10-40278     Document: 00511523774         Page: 1     Date Filed: 06/28/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 28, 2011

                                       No. 10-40278                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JOSHUA CALHOUN,

                                                   Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  7:09–CR–1159


Before GARWOOD, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Joshua Calhoun (“Calhoun”) appeals the district
court’s calculation of his sentence after he pled guilty to high speed flight from
a border checkpoint. We VACATE and REMAND for resentencing.
                                              I.
        United States Border Patrol (“Border Patrol”) agents stopped Calhoun at
a Texas port of entry. Calhoun looked suspicious, which prompted Border Patrol
agents to check his vehicle’s license plate. This check alerted the Border Patrol

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-40278

agents to consider Calhoun “armed and dangerous.” Thereafter a second agent,
Cynthia Sandoval, approached Calhoun’s truck and asked that he step out of the
vehicle. When Calhoun refused, Sandoval attempted to open the driver’s side
door, but Calhoun started the ignition and began driving off. Sandoval ran
alongside the truck for about 30 feet, simultaneously reaching into the truck to
turn off the ignition and trying to hit Calhoun with her baton. Calhoun was
“shoving” or “brushing” or “pushing” the agent’s arms away. The agent finally
let go of the truck and Calhoun sped off.
      Calhoun was eventually apprehended, after which he pled guilty to flight
from a checkpoint in violation of 18 U.S.C. § 758. The Pre Sentence Report
(“PSR”) stated that the applicable sentencing guideline was United States
Sentencing Guidelines (“Guidelines”) § 2A2.4, for obstructing or impeding
officers (base offense level 10), increased by 3 levels because the offense involved
physical contact and by 2 levels because the victim sustained bodily injury. The
PSR noted, however, that § 2A2.4(c)(1) directed a sentencing court to apply
§ 2A2.2 “[i]f the conduct constituted aggravated assault.”               The PSR
recommended that the court apply § 2A2.2 because Calhoun committed a felony
assault with an intent to commit another felony (flight from a checkpoint).
      At his sentencing hearing, Calhoun objected to the aggravated assault
cross-reference, under § 2A2.2. Calhoun argued that the offense of conviction
could not be the “other felony” contemplated by § 2A2.2 because the offense of
conviction led to the cross-reference in the first place, therefore the other felony
must be separate from the offense of conviction. Calhoun also argued that if the
court accepted the PSR’s interpretation, it would render the enhancement under
§ 2A2.4 for bodily injury a nullity, because any time a person impeded an officer
and caused bodily injury, it would always be aggravated assault.
      The district court disagreed with Calhoun. The district court noted that
the defendant need not cause the bodily injury to trigger the enhancement.

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Instead, the victim must merely have “sustained bodily injury.” The court
reasoned the enhancement is not a nullity and the cross-reference is applicable.
Calhoun was sentenced under § 2A2.2 to a term of fifty-four months’
imprisonment and three years of supervised release.         This timely appeal
followed.
                                       II.
                                       A.
      “We review the district court’s application and interpretation of the
sentencing guidelines de novo and its factual findings for clear error.” United
States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). Specifically, we
review the application of cross-reference provisions de novo. United States v.
Hicks, 389 F.3d 514, 529 (5th Cir. 2004). If the district court did not make the
necessary factual findings, we must conduct a de novo review of those facts. See
United States v. Castaneda, 162 F.3d 832, 836 & n.24 (5th Cir. 1998).
                                       B.
      Calhoun pled guilty to 18 U.S.C. § 758, which proscribes flight from a
checkpoint operated by a federal law enforcement agency. The circumstances
involving his flight and subsequent arrest, including the role played by
Sandoval, implicate two provisions of the Guidelines. Section 2A2.4 is entitled
“Obstructing or Impeding Officers” and lists as its specific offense
characteristics: “if the offense involved physical contact; or dangerous weapon;”
or if “the victim sustained bodily injury.” U.S.S.G § 2A2.4b. Section 2A2.4 also
includes a cross-reference which instructs the district court to apply § 2A2.2 if
“the conduct constituted aggravated assault.”        U.S.S.G § 2A2.4C.       The
commentary to § 2A2.2 defines aggravated assault as “a felonious assault that
involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not
merely to frighten) with that weapon; (B) serious bodily injury; or (C) an intent
to commit another felony.” U.S.S.G § 2A2.2 n.1.

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                                        C.
      Calhoun argues that the district court erred by sentencing him under the
aggravated assault Guideline pursuant to the cross-reference contained in
§ 2A2.4C. He contends that the facts of his case do not support a finding that his
conduct falls “within the ambit” of the aggravated assault Guideline because the
“intent to commit another felony” referenced in the application of the guideline
was the underlying offense for which he was convicted: flight from a checkpoint.
The Government, meanwhile, argues that the district court neither abused its
discretion nor erred in its application of the cross-reference. We agree with
Calhoun.
      There is no evidence that Calhoun intended to commit an assault on
Sandoval. United States v. Feola, 420 U.S. 671, 684 (1975). This dissonance is
amplified by our review of the PSR against our review of the sentencing hearing
at the district court. The district court “adopt[ed] the factual findings contained
within the [PSR],” which states that “it does not appear that there is sufficient
evidence to suggest that the defendant intended to commit bodily injury.” Yet,
this finding contradicts the district court’s legal conclusion that Calhoun
assaulted the agent.
      To salvage its argument, the Government relies on our unpublished
decision in United States v. Ortegon, 45 F. App’x 318 (5th Cir. 2002). Because
we conclude Ortegon is unpersuasive and distinguishable from the facts at hand,
the Government’s reliance on it is misplaced. In Ortegon, a panel of this court
considered a defendant who drove his car from Mexico through a primary
inspection lane at the American border checkpoint at El Paso, Texas. Id.
Defendant Ortegon tried to drive off when checkpoint personnel asked him to
give them his keys. As Ortegon fled the checkpoint, a Border Patrol agent
jumped into the passenger seat to avoid being struck by the car. Once inside, the
officer attempted to turn off the ignition, only to be met by repeated punches by

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                                  No. 10-40278

Ortegon. Ortegon’s vehicle was eventually stopped by another officer, and
Ortegon was arrested. A search of his vehicle yielded 45.15 kilograms of
marijuana. Ortegon pled guilty to assaulting a federal officer by inflicting bodily
injury, importing marijuana, and possession of marijuana with intent to
distribute.
      While the similarity of this case to Ortegon is evident—both involve
attempts to flee a checkpoint—the congruence ends there. In Ortegon, the officer
was halfway inside the defendant’s vehicle when the attempted flight occurred
and the defendant affirmatively punched the checkpoint officer. Here, the officer
ran alongside the vehicle in an attempt to stop the vehicle. Furthermore, there
is no allegation that Calhoun ever punched—or attempted to punch—Sandoval,
as was the case in Ortegon. Moreover, in Ortegon, the defendant attempted to
drive his vehicle into the way of the checkpoint officer.
      Here, Sandoval ran alongside the vehicle and relented only when she
determined that she would be unable to keep pace with Calhoun’s car. Also,
Sandoval’s injuries were not directly from Calhoun’s hand, as was the case in
Ortegon. Sandoval testified that she sustained scratches and bruises on her arm
from the truck, and not Calhoun directly.         Stated differently, Ortegon is
distinguishable from this case.
      Calhoun’s conduct is more accurately described as physical contact, for
which § 2A2.4 supplies an enhancement, and not as an assault, for which
§ 2A2.2 supplies a higher base offense level.        This court has stated that
“although there is some overlap between § 2A2.2 and § 2A2.4, the logical
conclusion is that § 2A2.4 is meant to apply to possession of weapons and verbal
threats, while § 2A2.2 is meant to apply to something more.” United States v.
Hooker 997 F.2d 67, 75 (5th Cir. 1993). In addition to possessing a weapon and
a verbal threat, § 2A2.4 must also cover some form of physical contact that is



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                                       No. 10-40278

less than a forcible assault,1 otherwise the enhancement for physical conduct
would be a nullity. Calhoun’s conduct does not look like “something more” than
possessing a weapon, a threat, or physical contact: He sped away from a
checkpoint while an agent held on to the truck for about 30 feet. He did not
physically attack her, and testified that he did not intend to harm her. This
conclusion is underscored by the lack of a finding by the district court that
Calhoun used his truck as a dangerous weapon—i.e., with intent to injure
Sandoval. Considering all of the above on de novo review, we hold that Calhoun
did not commit an assault, and thus the district court erred in applying § 2A2.2.
                                             III.
       For the foregoing reasons, we VACATE the district court’s judgment of
sentence and REMAND for resentencing.




       1
          See United States v. Rue, 988 F.2d 94, 96 (10th Cir. 1993) (“There exists no conflict
or tension between U.S.S.G. §§ 2A2.2 and 2A2.4. Section 2A2.4 is applicable if the defendant
merely obstructs or impedes an officer. If there was physical contact or if the use of a
dangerous weapon was threatened while obstructing or impeding an officer, then the base
offense level is increased from six to nine under § 2A2.4. In contrast, § 2A2.2 should be
utilized if a dangerous weapon was in fact used with intent to do a bodily harm.”)

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