           Case: 17-10392   Date Filed: 03/23/2018   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10392
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:16-cr-00037-MCR-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

THOMAS M. JACKSON, JR.,

                                                      Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (March 23, 2018)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Thomas M. Jackson, Jr. appeals his 135-month sentence, imposed after he

pled guilty to one count of assaulting a federal officer. On appeal, Jackson argues

that the district court erred in two ways when sentencing him under the United

States Sentencing Guidelines. First, he argues that the district court incorrectly

inferred that he had the intent to cause bodily injury. Second, he argues that the

district court engaged in impermissible double counting. After careful review, we

affirm.

                               I.      BACKGROUND

      Under a plea agreement, Jackson pled guilty to one count of assaulting a

federal officer in violation of 18 U.S.C. § 111(a)(1), (b). Jackson’s factual proffer

established the following: Jackson approached an officer with the Naval Air

Station Pensacola Police Department who was on duty outside the main gate of the

Naval Air Station Pensacola. The officer was wearing a police uniform with a

badge. As Jackson approached the officer, he held cash out of the window of his

car, as if paying a toll. The officer noticed the odor of alcohol coming from

Jackson’s car and saw an open beer bottle inside the car. He instructed Jackson to

turn off the car and give him the keys. When Jackson asked why, the officer

explained that he believed Jackson was driving under the influence. At that point,

Jackson “looked around in all directions, gripped the steering wheel tightly, and




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accelerated the vehicle.” Doc. 25 at 2. 1 As Jackson’s car struck the officer in the

chest, the officer grabbed onto the driver’s side window frame and “was dragged

for approximately 15 feet before falling.” Id. After the officer fell, his left foot

was run over by the rear tire of the car. The officer sustained injuries including

strained muscles and scrapes on his left hand, arm, and shoulder. Jackson

continued to drive away; he was located by other officers approximately 40

minutes later.

       The Presentence Investigation Report (“PSI”), prepared in advance of

Jackson’s sentencing, indicated that his base offense level was 14 because he had

committed an aggravated assault with his car. U.S.S.G. § 2A2.2(a). It also

recommended that Jackson receive a four-level enhancement under

§ 2A2.2(b)(2)(B) for the use of the car as a dangerous weapon, a three-level

enhancement under § 2A2.2(b)(3)(A) because the officer sustained bodily injury,

and a two-level enhancement under § 2A2.2(b)(7) because Jackson was convicted

under 18 U.S.C. § 111(b), for assault with a deadly weapon or that caused bodily

injury. Finally, the PSI recommended a six-level enhancement under

§ 3A1.2(c)(1) for knowingly assaulting an officer.

       At his sentencing hearing, Jackson objected to his base offense level,

arguing that he had not committed aggravated assault because he had not intended

       1
         Unless otherwise indicated, all citations in the form of “Doc. #” refer to the district
court docket entries.
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to injure the officer. He also objected to the enhancements, arguing that they

amounted to impermissible double counting. The government presented testimony

of the officer and a video of the incident. The district court found by a

preponderance of the evidence that Jackson had intended to injure the officer and

thus that a base offense level for aggravated assault under § 2A2.2(a) was

appropriate. The district court also rejected Jackson’s double counting arguments.

Jackson was sentenced to 135 months’ imprisonment, which was in the middle of

his guideline range of 120-150 months. This is Jackson’s appeal.

                        II.    STANDARDS OF REVIEW

      We review a district court’s findings of fact for clear error and its application

of the Sentencing Guidelines de novo. United States v. Maddox, 803 F.3d 1215,

1220 (11th Cir. 2015). A finding of fact is clearly erroneous only if we are left

with a “definite and firm conviction that a mistake has been committed.” United

States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). We review a district

court’s rejection of a double counting challenge under the Sentencing Guidelines

de novo. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).

                                 III.   ANALYSIS

      On appeal, Jackson argues that the district court erred in finding that he

intended to injure the officer and thus erroneously applied a base offense level for

aggravated assault. Jackson also argues that the district court engaged in


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impermissible double counting when it applied the sentencing enhancements. For

the reasons that follow, we affirm Jackson’s sentence.

A.    The District Court Did Not Clearly Err in Finding That Jackson
      Intended to Injure the Officer.

      Jackson was convicted of a single count of violating 18 U.S.C. § 111(a)(1),

(b). A person who “forcibly assaults” a federal officer “engaged in . . . official

duties,” § 111(a)(1), is subject to enhanced penalties if, during the commission of

the violation, the person “uses a deadly or dangerous weapon . . . or inflicts bodily

injury.” 18 U.S.C. § 111(b). We previously have held that § 111 is a general

intent statute, requiring only intent to commit the underlying act, not necessarily

intent to injure. See United States v. Ettinger, 344 F.3d 1149, 1153-56, 1161 (11th

Cir. 2003). Likewise, we have held that § 111 does not require actual knowledge

that the victim is a federal officer. See United States v. Alvarez, 755 F.2d 830, 842

(11th Cir. 1985).

      But even though § 111 may be violated without an intent to injure, if the

district court finds—as it did here—that the defendant did in fact intend to injure,

then the base offense level may be higher. Under the Sentencing Guidelines, a

conviction for violating § 111 corresponds to a base offense level under either

§ 2A2.2 or § 2A2.4. See U.S.S.G. App. A. Jackson’s base offense level was

calculated under § 2A2.2 because the district court determined that his conduct

constituted aggravated assault. See U.S.S.G. § 2A2.4(c)(1) (“If the conduct
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constituted aggravated assault, apply § 2A2.2 (Aggravated Assault).”).

Aggravated assault is defined as, among other things, a “felonious assault that

involved . . . a dangerous weapon with intent to cause bodily injury (i.e., not

merely to frighten) with that weapon.” U.S.S.G. § 2A2.2 cmt. n.1. The definition

of “dangerous weapon,” in turn, includes a vehicle if it “is involved in the offense

with the intent to commit bodily injury.” Id.

      Jackson argues that the district court committed clear error when it found by

a preponderance of the evidence that he committed aggravated assault because he

lacked the intent to cause bodily injury. The district court found that after Jackson

hit the officer with his car, “Jackson must have seen and known full well that [the

officer] was hanging onto his window frame and that [the officer] would be injured

if the vehicle continued picking up speed, ran over [the officer], and kept moving.”

Doc. 41 at 4. The district court concluded, “Taken together, these facts support an

inference that Jackson intended to use his vehicle to cause bodily injury to [the

officer] if doing so was necessary to ensure his successful escape.” Id.

      The district court’s finding was not clearly erroneous. Although the

evidence presented also could have supported an inference that Jackson acted with

mere recklessness when he hit the officer with his car, dragged him several feet,

and ran over his foot, we are not left with a “definite and firm conviction that a

mistake has been committed.” Foster, 155 F.3d at 1331. Because the district court


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did not clearly err in finding that Jackson acted with the intent to cause injury,

Jackson’s conduct fit within the definition of aggravated assault, and the district

court appropriately applied § 2A2.2 to calculate the base offense level.

      Jackson similarly argues that the district court erred in applying the official

victim enhancement under § 3A1.2 because his conduct was reckless but

unintentional. See U.S.S.G. § 3A1.2 cmt. n.4(a) (noting that the enhancement

applies in circumstances “tantamount to aggravated assault” that are “sufficiently

serious to create at least a substantial risk of serious bodily injury” against “official

victims”). Based on our conclusion that the district court did not clearly err in

finding that Jackson acted with intent to injure the officer, and because there was

sufficient evidence to support the court’s finding that Jackson knew or had

reasonable cause to believe that the officer—who wore a police uniform with a

badge—was a law enforcement officer, see § 3A1.2(c)(1), the court did not err in

applying the official victim enhancement.

B.    The District Court Did Not Engage in Impermissible Double Counting.

      Next, Jackson argues that the district court engaged in impermissible double

counting when it applied the following two sentence enhancements:

§ 2A2.2(b)(2)(B), for use of a dangerous weapon; and § 2A2.2(b)(7), for a

conviction under § 111(b). “Impermissible double counting occurs only when one

part of the Guidelines is applied to increase a defendant’s punishment on account


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of a kind of harm that has already been fully accounted for by application of

another part of the Guidelines.” Cubero, 754 F.3d at 894 (internal quotation marks

omitted). Double counting is permitted when “the Sentencing Commission

intended that result and each guideline section in question concerns conceptually

separate notions relating to sentencing.” Id. (internal quotation marks omitted).

“Moreover, we presume that the Sentencing Commission intended separate

guidelines sections to apply cumulatively, unless specifically directed otherwise.”

Id. (internal quotation marks omitted; alterations adopted).

      1. The District Court Did Not Err in Enhancing Jackson’s Sentence Under
         U.S.S.G. § 2A2.2(b)(2)(B).

      The district court enhanced Jackson’s sentence under U.S.S.G.

§ 2A2.2(b)(2)(B) because he “otherwise used” a dangerous weapon. Jackson

argues that this enhancement was erroneously applied because his conduct

qualified for the base offense level of aggravated assault only as a result of the use

of the car. In other words, he argues that his sentence was increased twice for

using a dangerous weapon: once when he was given a base offense level for

aggravated assault—which required that the offense “involve[] a dangerous

weapon with intent to cause bodily injury,” § 2A2.2 cmt. n.1—and a second time

when his offense level was enhanced because the dangerous weapon was

“otherwise used.” § 2A2.2(b)(2)(B).



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      Although Jackson’s argument is not without logic, the commentary to the

Sentencing Guidelines, which lists a vehicle as an example of a dangerous weapon,

specifically instructs that “[i]n a case involving a dangerous weapon with intent to

cause bodily injury, the court shall apply both the base offense level and subsection

(b)(2),” which includes the enhancement Jackson received for “otherwise us[ing]”

a dangerous weapon. U.S.S.G. § 2A2.2 cmt. n.1, 3. Further, the background to the

commentary explains that the weapon enhancement under subsection (b)(2)

“take[s] into account different aspects of the offense” than the base offense level,

“even if the application of the base offense level and the weapon enhancement is

based on the same conduct.” Id. § 2A2.2 cmt. background. This commentary is

binding unless it “violates the Constitution or a federal statute, or is inconsistent

with or a plainly erroneous interpretation of the guideline,” United States v. Birge,

830 F.3d 1229, 1232 (11th Cir. 2016), and Jackson does not argue that the

commentary is nonbinding for any of these reasons.

      We acknowledge that United States v. Hudson, 972 F.2d 504 (2d Cir. 1992),

reached the opposite conclusion. In Hudson, the Second Circuit explained that

“aggravated assault with a car will always lead to a three or four-level

enhancement, because mere possession of a car during an assault will not convert

an ordinary assault into an aggravated one.” Id. at 507. Thus, the Hudson court

concluded, an enhancement for use of a car as a deadly weapon in such a context


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constituted impermissible double counting. Id. But the Hudson court’s decision is

contrary to both the plain language of the Sentencing Guidelines and the

conclusion of the majority of the circuits to consider this issue. See, e.g., United

States v. Valdez-Torres, 108 F.3d 385, 388-89 (D.C. Cir. 1997) (declining to

follow Hudson, concluding that the enhancement for use of an automobile as a

dangerous weapon was not impermissible double counting). We thus conclude

that the district court did not err in applying the enhancement for use of a

dangerous weapon.

      2. The District Court Did Not Err in Enhancing Jackson’s Sentence Under
         U.S.S.G. § 2A2.2(b)(7).

      Jackson also argues that the district court erred in enhancing his sentence

under U.S.S.G. § 2A2.2(b)(7), which provides an enhancement for a conviction

under 18 U.S.C. § 111(b), which in turn applies when the assault involved the use

of a deadly or dangerous weapon or caused bodily injury. Because Jackson’s

sentence also was enhanced under both U.S.S.G. § 2A2.2(b)(2)(B) for the use of a

dangerous weapon and U.S.S.G. § 212.2(b)(3)(A) for causing bodily injury, he

argues that he was penalized twice for the same conduct. We disagree.

      As an initial matter, the district court did not err in enhancing Jackson’s

sentence under both § 2A2.2(b)(2)(B) and § 212.2(b)(3)(A) because the Guidelines

direct that those subsections should be applied cumulatively as long as the

cumulative adjustments do not exceed ten levels (and, in this case, they did not).
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See U.S.S.G. § 212.2(b)(3). The district court also committed no error in

enhancing Jackson’s sentence under U.S.S.G. § 2A2.2(b)(7), which indicates that a

sentence should be enhanced if the defendant “was convicted under 18 U.S.C.

§ 111(b).” This enhancement accounts for a different aspect of Jackson’s offense

than §§ 2A2.2(b)(2)(B) and 212.2(b)(3)(A) because § 2A2.2(b)(7) increases

penalties for aggravated assaults committed against certain victims. The

enhancement therefore was appropriate and not duplicative of §§ 2A2.2(b)(2)(B)

and 212.2(b)(3)(A). The district court did not engage in impermissible double

counting when it enhanced Jackson’s sentence.2

                                    IV.     CONCLUSION

       For the foregoing reasons, we affirm Jackson’s sentence.

       AFFIRMED.




       2
         The government construed Jackson’s brief as suggesting that the enhancement under
§ 3A1.2 also constituted impermissible double counting. To the extent Jackson made this
argument, it also fails. See U.S.S.G. § 2A2.2 cmt. n.4 (“If subsection (b)(7) applies, § 3A1.2 . . .
also shall apply.”); United States v. Park, 988 F.2d 107, 110 (11th Cir. 1993) (explaining that
enhancing a sentence under U.S.S.G. §§ 2A2.2 and 3A1.2 did not constitute impermissible
double counting).
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