                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0389n.06

                                          No. 13-1803
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                        May 28, 2014
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
                                                                ON APPEAL FROM THE
               v.                                       )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE EASTERN
SAMUEL JOHN PEGO,                                       )
                                                                DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )
                                                        )


BEFORE: GUY, GIBBONS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Samuel Pego appeals his convictions and 780-month sentence for assaulting his domestic

partner on federal territory and subsequently engaging in witness tampering. Because Pego has

not established any legal error underlying his convictions or sentence, we affirm the district

court’s judgment.

                                                I.

       By July 2012, Samuel Pego, a Native American living on a reservation in Mount

Pleasant, Michigan, had been in an intimate relationship with Katherine Osawabine for almost

two years. On July 12, Pego accused Osawabine of serving as a confidential informant against

him. Osawabine testified at Pego’s ensuing criminal trial that Pego repeatedly beat her over the

subsequent three-day period—from July 12 through July 14—striking her in the face with a

metal fireplace poker, kicking her, punching her, beating her with a belt buckle, and at one point
No. 13-1803
United States v. Pego


confining her in a spare bedroom while standing in the doorway with a knife. Osawabine

sustained serious injuries from the repeated assaults, ultimately requiring reconstructive surgery

for multiple facial fractures.

        Osawabine’s friends and neighbors noticed that her injuries were growing increasingly

severe as the days passed, and they eventually called the authorities, who arrested Pego. While

awaiting trial, Pego made several intimidating phone calls to Osawabine and wrote threatening

letters to her, all of which were intercepted by law enforcement.

        The grand jury returned a six-count superseding indictment charging Pego with:

(1) unlawful imprisonment, in violation of Mich. Comp. Laws § 750.349b, as assimilated by

18 U.S.C. § 13; (2) assault with a dangerous weapon with intent to do bodily harm, in violation

of 18 U.S.C. §§ 113(a)(3) and 1153; (3) assault resulting in serious bodily injury, in violation of

18 U.S.C. §§ 113(a)(6), 1151, and 1153; (4) witness tampering occurring over the three-day

period in which the assaults were occurring, in violation of 18 U.S.C. § 1512(b)(3); (5) domestic

assault by an habitual offender, in violation of 18 U.S.C. § 117; and (6) a second witness

tampering charge relating to Pego’s communications to Osawabine after his arrest.

        After a trial at which Osawabine testified that Pego had assaulted her over the pertinent

three-day period, the jury found Pego guilty on all counts. The presentence report (“PSR”)

prepared in Pego’s case grouped Counts One through Five together, assessed several sentencing

enhancements, and concluded that Pego had a combined adjusted offense level of 38. Pego’s

seventeen criminal history points gave him a criminal history category of VI, resulting in an

advisory Guidelines sentencing range of 360 months to the statutory maximum of 1,020 months.

        Pego raised no objections to any of the PSR’s sentencing computations. The district

court, after hearing allocution from Pego, remarked that Pego had “one of the highest numbers of

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United States v. Pego


criminal history points that I’ve had a chance to witness,” despite the fact that the calculation did

not even include several tribal court convictions. The district court also heard a victim impact

statement from Osawabine. Finally, noting that Pego persisted in denying that he had assaulted

Osawabine and that Pego “simply cannot psychologically bring himself to the point of accepting

responsibility for his own behavior,” the district court stated its view that Pego’s offense “was

one of the more violent and disrespectful acts” that it had yet encountered and that his “twenty

prior misdemeanor convictions, seven felony convictions and six tribal court convictions”

militated in favor of “a significant sentence.”

       Ultimately, the district court sentenced Pego to the statutory maximum terms applicable

to all six counts of conviction and ran the sentences for the first five counts consecutive to each

other. The result was a 780-month sentence, with 240 months concurrent on Count Six. Pego

appeals.

                                                  II.

                                                  A.

       Pego first argues that the district court erred in denying his motion for a new attorney.

Generally, a criminal defendant is entitled “to choose who will represent him.” United States v.

Gonzalez-Lopez, 548 U.S. 140, 144 (2006). But “the right to counsel of choice is circumscribed

in several important respects.” Id. (internal quotation marks omitted). At the most basic level, a

defendant that wants to substitute counsel must bring his desire to the attention of the district

court. Benitez v. United States, 521 F.3d 625, 632 (6th Cir. 2008); United States v. Iles, 906 F.2d

1122, 1131 (6th Cir. 1990). The district court then “must determine whether there is good cause

for the substitution by balancing ‘the accused’s right to counsel of his choice and the public’s

interest in the prompt and efficient administration of justice.’” Benitez, 521 F.3d at 632 (quoting

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United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)). We review the district court’s

denial of a motion to substitute counsel for an abuse of discretion, considering “(1) the timeliness

of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the

conflict between the attorney and client and whether it was so great that it resulted in a total lack

of communication preventing an adequate defense, and (4) the balancing of these factors with the

public’s interest in the prompt and efficient administration of justice.” United States v. Mack,

258 F.3d 548, 556 (6th Cir. 2001).

        Here, despite Pego’s insistence to the contrary, the district court’s denial of his motion

was not an abuse of discretion. Pego did not make his motion until the midst of jury selection, at

which point he accused his trial counsel of having insufficiently prepared for trial. The district

court inquired into Pego’s assertions and then asked for a response from Pego’s counsel. Trial

counsel represented that he had followed most of the evidentiary leads to which Pego had

directed him and that much of the resulting material was irrelevant or inadmissible. Further,

claimed Pego’s counsel, he had attempted to contact the witnesses that Pego had identified but

had ascertained that their testimony would not be favorable to Pego. Having heard from both

Pego and his counsel, the district court ruled that trial counsel had adequately investigated the

case and was exercising his professional judgment in Pego’s interest. The district court denied

Pego’s request that he be able to hire his own attorney, noting that his request came in the middle

of jury voir dire.

        Pego now claims that the district court improperly trivialized the extent of the rift

between him and his counsel, which Pego claims exhibited itself in a total lack of contact during

the two weeks immediately before his trial. But this fortnight of silence does not on its own

demonstrate an irretrievable breakdown of communication. Trial counsel represented Pego at his

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arraignment and plea hearing only two weeks before his trial began. The district court heard

testimony that trial counsel investigated Pego’s case in the interim and was receptive to Pego’s

desires about how to approach the case. And despite the alleged failure of his attorney to contact

him during the final few days before trial, Pego did not request a new attorney until jury

selection was underway.       Because the record discloses neither a timely motion nor an

irretrievable breakdown of attorney-client relations, the district court’s denial of Pego’s motion

to substitute counsel was not an abuse of its discretion.

                                                 B.

       Next, Pego claims that his trial counsel was ineffective in a myriad of ways.            But

ineffective assistance claims are generally not reviewed on direct appeal “except in rare cases

where the error is apparent from the existing record.” United States v. Wells, 623 F.3d 332, 348

(6th Cir. 2010) (citation omitted). And despite Pego’s assertions, the record is far from clear that

any of the alleged oversights and failings of his counsel were anything other than the product of

a reasoned trial strategy or that they worked Pego prejudice. See Strickland v. Washington,

466 U.S. 668, 689, 693 (1984).

       Pego claims, for example, that counsel should have challenged the warrantless search of

his residence. But at least one officer testified that Osawabine voluntarily permitted the officers

to enter, and there is also some suggestion in the record that a search warrant was in any event

procured by the investigating officers. Nor is it apparent that, without the lone piece of evidence

that the officers procured from the residence—a knife that Pego had held while trapping

Osawabine in an upstairs bedroom—the prosecution would have been unable to convict him.

Simply put, this is not the “rare” case in which it is appropriate for us to rule on an ineffective-



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United States v. Pego


assistance-of-counsel claim without deferring to the more complete factual record that can be

developed in a collateral proceeding. Wells, 623 F.3d at 348.

       The same analysis applies to counsel’s failure to move to strike expert testimony about

the conduct of domestic abuse victims and the testimony of a medical doctor recounting

Osawabine’s identification of Pego as her assailant while she was being given medical

assistance. It is not clear that Pego is correct in characterizing the challenged testimony as

admissible, and in any event, given the other trial testimony that pointedly identified Pego as the

perpetrator, it is far from apparent that counsel’s conduct in this regard worked Pego any

constitutionally cognizable harm.

       It would be equally improper for us to rush to judgment on counsel’s decision not to

pursue a voluntary intoxication defense to the specific intent crimes charged in Counts Two and

Four of the indictment. As his colloquy with the district court on his motion to substitute counsel

illustrated, Pego wished to defend the case by claiming that he was not actually the assailant.

For his counsel to have pursued the affirmative defense of voluntary intoxication, counsel would

have had to gamble that he could muster enough evidence to prove the affirmative defense,

overriding his client’s stated position while doing so. Again, this is anything but the rare case

where the record conclusively establishes trial counsel’s ineffectiveness, and we decline Pego’s

invitation to hold otherwise. Wells, 623 F.3d at 348.

                                                C.

       Without citing any cases, Pego next contends that the district court violated his due

process rights by abandoning its role as a neutral magistrate and instructing the jury with a biased

version of the evidence. But the challenged portion of the district court’s charge to the jury is a

verbatim quotation of Sixth Circuit Criminal Pattern Jury Instruction 7.14, albeit with the

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United States v. Pego


specifics of the relevant testimony inserted in the appropriate blanks, as the pattern instruction

contemplates. The district court fairly represented the relevant trial testimony. Pego’s argument

is entirely without merit.

                                                D.

       Pego also asserts that he was sentenced in an impermissibly duplicative manner.

According to Pego, he was improperly sentenced twice for the same conduct because his

conviction on Count Three—which charged him with assault resulting in serious bodily injury, in

violation of 18 U.S.C. § 113(a)(6)—was essentially a lesser-included offense of his conviction

on Count Five, which charged him with domestic assault by a habitual offender, in violation of

18 U.S.C. § 117(a). He is incorrect.

       Because Pego never raised any such argument in the district court, his current assertions

are reviewed for plain error. United States v. Kakos, 483 F.3d 441, 445 (6th Cir. 2007). Pego’s

position rests on the principle that a sentencing court may not impose “greater punishment than

the legislature intended.” Rutledge v. United States, 517 U.S. 292, 297 (1996) (citation omitted).

The federal presumption is that “where two statutory provisions proscribe the ‘same offense,’ a

legislature does not intend to impose two punishments for that offense.” Id. (internal quotation

marks omitted).     Determining whether two different statutes define two different offenses

requires the court to examine the elements of each statutory provision. If “‘each provision

requires proof of a fact which the other does not,’” then the statutes define two different offenses

instead of only one, and a defendant may be separately punished for each offense. Id. (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)).

       Pego’s assertion that his conviction under § 113(a)(6) is subsumed by his conviction

under § 117(a) is based on a misreading of the statutes. A conviction under § 113(a)(6) requires

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a defendant to commit (1) an assault (2) on federal territory (3) resulting in “serious bodily

injury.” See 18 U.S.C. § 113(a)(6); United States v. Littlewind, 595 F.3d 876, 884 (8th Cir.

2010). “Serious bodily injury” means bodily injury involving “(A) a substantial risk of death;

(B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or

impairment of the function of a bodily member, organ, or mental faculty.”               18 U.S.C.

§§ 113(b)(2), 1365(h)(3).

       Section 117(a), by contrast, provides for a ten-year sentence if a defendant (1) with at

least two prior domestic abuse convictions (2) commits a “domestic assault” (3) on federal

territory (4) that results in “substantial bodily injury.” See 18 U.S.C. § 117(a); United States v.

Cavanaugh, 643 F.3d 592, 593 (8th Cir. 2011). “Substantial bodily injury” encompasses a

degree of bodily injury that is less severe than “serious bodily injury,” given that it includes

bodily injury involving “(A) a temporary but substantial disfigurement; or (B) a temporary but

substantial loss or impairment of the function of any bodily member, organ, or mental faculty.”

18 U.S.C. § 113(b)(1).

       As is evident from the relevant statutory text, Pego’s conviction on Count Three required

evidence of a more serious degree of bodily injury than his conviction on Count Five did. And

his conviction on Count Five required evidence of a domestic assault and at least two prior

domestic abuse convictions, which his conviction on Count Three did not.            Because each

conviction required proof of an element that the other did not, Pego is not entitled to a

presumption that Congress intended for only one punishment to apply to his two offenses. See

Rutledge, 517 U.S. at 297. Because Pego has failed to demonstrate plain error, we decline his

request to vacate his sentence on Count Three on these grounds.



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                                                 E.

       Pego next contends that the district court engaged in impermissible double-counting

when computing applicable sentencing enhancements under the Guidelines. Again, our review is

for plain error, and, again, we do not agree with Pego that the district court plainly erred.

       Impermissible double counting “occurs when precisely the same aspect of the

defendant’s conduct factors into his sentence in two separate ways, but not where the defendant

is punished for distinct aspects of his conduct.” United States v. Morgan, 687 F.3d 688, 695 (6th

Cir. 2012) (internal quotation marks omitted).         Pego contends that he was impermissibly

punished twice for the same conduct when (1) several specific offense enhancements increased

his Guidelines range, after which (2) the district court sentenced him to the statutory maximum

on all charges, several of which had served as the basis of the specific Guidelines enhancements.

       But Pego misapprehends the function of the district court’s Guidelines analysis, which

does not punish him twice for a single aspect of his conduct. Id. The calculation of the advisory

Guidelines range simply gave rise to a presumptively reasonable sentencing range—in this case,

one with a floor of 360 months and a ceiling at the statutory maximum of 1,020 months. See

United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc). The district court’s

selection of a sentence that fell within the presumptively reasonable range is independent of its

calculation of that advisory range. See Jenkins v. United States, 394 F.3d 407, 411–12 (6th Cir.

2005). The mere fact that the Guidelines range is determined by reference to grouped offense

conduct obviously does not bar the district court from imposing sentences on each count of

conviction, see id., and the district court’s decision to structure Pego’s within-Guidelines

sentence as a mix of consecutive and concurrent sentences on the substantive counts of

conviction raises none of the specters of double punishment that underpins the bar against

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United States v. Pego


double-counting. See, e.g., U.S.S.G. § 5G1.2(d) (noting that where the adjusted offense level

applicable to grouped counts exceeds the highest applicable statutory maximum on one of them,

the sentencing court may apportion the rest of its chosen sentence as a consecutive sentence on

the additional counts of conviction).

       Nor has Pego identified any double-counting error in the Guidelines calculations giving

rise to the advisory sentencing range, including the assessment of multiple sentencing

enhancements. The PSR’s calculations began with Pego’s conviction on Count One, which

charged him under 18 U.S.C. § 13, the Assimilative Crimes Act. The Act’s basic function is to

“borrow[] state law to fill gaps in the federal criminal law that applies on federal enclaves” in

order to ensure that individuals cannot commit state-law crimes on federal territory with

impunity merely because they are beyond a state’s jurisdictional reach. Lewis v. United States,

523 U.S. 155, 160 (1998). Under the Act, if there is no federal criminal law on point, and if a

defendant’s conduct would have been a state-law crime but for the fact that it was committed on

federal territory, it “becomes a federal offense for which [he is] sentenced under federal

guidelines.” United States v. Couch, 65 F.3d 542, 543 (6th Cir. 1995). See also 18 U.S.C.

§ 3551(a) (noting that a defendant who has been found guilty under 18 U.S.C. § 13 “shall be

sentenced in accordance with the provisions of this chapter”).

       Count One charged Pego with unlawful imprisonment in violation of Mich. Comp. Laws

§ 750.349b as assimilated by 18 U.S.C. § 13(a). Pego does not argue that the Michigan statute

was not assimilated, see Lewis, 523 U.S. at 159–66, nor does he dispute that the federal

kidnapping guideline—U.S.S.G. § 2A4.1—is the “most analogous” guideline and was properly

applied to his conduct. See U.S.S.G. § 1B1.2(a) (directing a sentencing court to the “most

analogous guideline”); U.S.S.G. § 2X5.1, bkgd. cmt.; United States v. Gibson, 409 F.3d 325, 339

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(6th Cir. 2005) (noting that “the district court’s choice of an analogy should be upheld if it is

reasonable”). But see United States v. Epley, 52 F.3d 571, 582 (6th Cir. 1995) (noting that

U.S.S.G. § 2A4.1 might not apply where the state law analogues applying to the defendant are

punished “far less” severely than the federal crimes sentenced under § 2A4.1).

       The federal kidnapping guideline established a base offense level of 32 on Pego’s

conviction on Count One. See U.S.S.G. § 2A4.1(a). The PSR grouped Counts One through Five

under U.S.S.G. § 3D1.2(c) and (d) because they involved a common victim and criminal scheme

and because Counts Two through Five involved conduct that the Guidelines treated as

enhancements to the offense level for Count One. Pego does not challenge this grouping

decision.

       As specific sentencing enhancements to the 32-point base offense level applicable to the

counts grouped with Count One, the PSR added two points because Osawabine sustained serious

bodily injury, two points because Pego used a fireplace poker as a dangerous weapon, and two

points because Pego obstructed justice by attempting to intimidate Osawabine into falsifying her

testimony. See U.S.S.G. § 2A4.1(b)(2)(B), (b)(3); U.S.S.G. § 3C1.1. Because the adjusted

offense level of 38 was so high, the lone remaining count that was not grouped with the others—

Count Six—had no effect on the determination of the Guidelines range.

       The application of each of these enhancements to the grouped counts was perfectly

appropriate and does not implicate any impermissible double counting. See, e.g., § 3C1.1, cmt.

n.8 (explaining that the obstruction of justice enhancement applies to the grouped counts when a

defendant is separately convicted of an obstruction offense). The Guidelines calculations gave

rise to a wide Guidelines range, and the district court’s decision to locate a sentence within that

range based on the statutory maximums poses none of the duplicative sentencing risks upon

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United States v. Pego


which the double-counting doctrine is predicated. See Jenkins, 394 F.3d at 411–12. Pego’s

arguments to the contrary are entirely without merit.

                                                F.

       Finally, Pego argues that the district court failed to support its chosen sentence with

specific findings under 18 U.S.C. § 3553(a). But the district court explicitly recounted Pego’s

significant criminal history, the brutal nature of his conduct, and his lack of remorse or

acceptance of responsibility. Each of these areas of comment indicates the district court’s

weighing of the pertinent statutory considerations. Pego’s argument that the district court failed

to invoke the § 3553(a) factors in selecting his sentence is, as a result, inconsistent with the

record. See also United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005) (“[T]his court has

never required the ritual incantation of the [§ 3553(a)] factors to affirm a sentence.” (internal

quotation marks omitted)).

       To the extent that Pego claims that his sentence is substantively unreasonable because the

district court “fail[ed] to consider relevant sentencing factors,” his argument must fail. United

States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010).          Pego’s sentence fell within a

Guidelines range that he has failed to show was incorrectly calculated, and a sentence falling

within a properly-calculated Guidelines range is presumptively reasonable. Vonner, 516 F.3d at

390. “The fact that the appellate court might reasonably have concluded that a different sentence

was appropriate is insufficient to justify reversal of the district court.” Gall v. United States,

552 U.S. 38, 51 (2007). Pego does not point to anything that overcomes the presumption of

reasonableness accorded to his within-Guidelines sentence, and we therefore decline to disturb it.

                                               III.

       For these reasons, we affirm the judgment of the district court.

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