United States v. García , 34 F.3d 6 ( 1994 )

TORRUELLA, Circuit Judge.

Defendant-appellant Eduardo Garcia pled guilty to one charge of assault on a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b). Using the 1992 version of the Sentencing Guidelines, the district court sentenced Garcia to 41 months imprisonment. Garcia appeals his sentence, claiming that the district court erred (1) in selecting the aggravated assault sentencing guidelines; (2) in imposing a four-level specific offense characteristic adjustment for using a dangerous weapon; (3) in imposing a two-level enhancement for obstruction of justice; and (4) in assessing a three-level official victim enhancement. We affirm the district court’s sentence.

BACKGROUND

On September 15, 1992, Alcohol Tobacco and Firearms Special Agent John Lennon and Detectives Francisco Colón and Robert Drohan of the Providence Police Department’s Special Investigations Bureau were on their way to interview a witness when Detective Drohan observed a silver Toyota occupied by two males in the parking lot of a McDonald’s restaurant on Broad Street in Providence, Rhode Island. Because neither man appeared to have any food nor appeared to be ordering any, and because the area was a known drug trafficking location, Detective Drohan suspected the two men were loitering for the purpose of making a narcotics purchase.

Agent Lennon and the detectives placed the vehicle and its occupants under surveillance. After a short period of time, a black Toyota operated by Garcia parked alongside the silver Toyota. Garcia approached the occupants of the silver Toyota, who were later identified as Raymond Ladou, the driver, and Mark McMullen, the passenger. Garcia then got back in his car and drove the black Toyota out of the McDonald’s parking lot followed by Ladou and McMullen in the silver Toyota.

Agent Lennon and the detectives followed the cars to Indiana Avenue. They requested a marked cruiser to back them up, and John Mellor, a uniformed policeman, operating a marked cruiser, responded to the request for assistance. Agent Lennon and the detectives drove past both suspect vehicles and observed McMullen in Garcia’s car. McMullen and Garcia were both looking down and appeared to be examining something in their laps.

Detective Drohan and Officer Mellor used the unmarked police car and the marked cruiser to block the silver Toyota and the street. Agent Lennon and the detectives approached Garcia’s car, displaying their weapons and identification, and they yelled “police.” When Detective Colón reached the driver’s side, he saw numerous packages of what he believed to be heroin on Garcia’s lap. García drove off suddenly with McMullen in the ear.

Garcia turned his car toward Detective Colón who jumped out of the way. Next, Garcia directed the car at Agent Lennon who had to leap onto a parked car to avoid being struck. Garcia then drove at Detective Dro-han and subsequently mounted the curb to get around the marked police cruiser. Patrolman Mellor and Detectives Colón and Drohan shot at Garcia’s vehicle. Despite a flattened tire, Garcia continued to flee. Agent Lennon took Ladou into custody while Detectives Colón and Drohan and additional marked cruisers pursued Garcia and McMul-len. According to the detectives, during the pursuit, Garcia threw an undetermined amount of money and heroin out of the window. García and McMullen were apprehended after they abandoned the vehicle. A subsequent search along the attempted escape route yielded $865 in cash but no drugs.

Ladou gave a written statement to the police in which he stated that McMullen had paid him $40 to drive him to Providence, Rhode Island, and that McMullen told him “that a guy was going to come in a black car, a Puerto Rican and that he was going to do a deal.” Ladou also stated that although McMullen told him that he was going to Providence to buy a car, Ladou suspected that McMullen was going to participate in a heroin transaction because he knew McMul-len was a heroin user.

McMullen also gave a written statement to the police in which he admitted that he came to Providence to buy heroin. McMullen described his supplier in this way, “there is a guy I don’t know his name, I go to the McDonald’s and I punch in a beeper number ... and then a code number ... then the number of bundles you want. A while later the guy shows up in a small black car, and brings you the heroin.” McMullen knew Garcia by the pseudonym, “Joseph.”

The government sought to subpoena McMullen for the grand jury investigation of this matter. McMullen, however, avoided service of the subpoena. Authorities later found McMullen, but he was unwilling to cooperate with the investigation.

Pursuant to a written plea agreement with the government, Garcia pleaded guilty to assault on a federal officer and using a dangerous weapon in violation of 18 U.S.C. § 111(a)(1) and (b), and in return, the government dismissed the charge of attempting to distribute heroin in violation of 21 U.S.C. § 841(a)(1).

The court adopted the pre-sentencing report’s (“PSR”) calculation of Garcia’s sentence as follows. Because the charge against Garcia invoked the enhanced penalty of 18 U.S.C. § 111(b), for assaults involving the use of a deadly or dangerous weapon, the PSR selected the aggravated assault guideline, U.S.S.G. § 2A2.2. Section 2A2 sets a base offense level of fifteen. Following the express language of § 2A2.2(b) of the Guidelines, the PSR added the four-level enhancement because a dangerous weapon (the car) was used in the assault.

The PSR noted that the victim of the 18 U.S.C. § 111 assault was Agent Lennon, a federal agent. It further noted that the facts as stated in the prosecution version established that at the time of the offense, Garcia was aware that the victim was a law enforcement officer and that the assault was motivated by the victim’s status as a law enforcement officer. Accordingly, the PSR added the three-level, official victim adjustment provided by § 3A1.2(a).

The PSR also added a two-level adjustment . for obstruction of justice under § 3C1.1. It found that by throwing heroin out the window during his attempt to avoid arrest, Garcia had materially hindered the official investigation and prosecution. The PSR concluded that as a result of Garcia’s action, the government was unable to prove the drug charges.

Subtracting three levels for acceptance of responsibility pursuant to § 3E1.1, the probation officer arrived at a total offense level of 21. Because Garcia had a criminal history category of I, his sentence range was 37 — 46 months.

The district court adopted the recommendations of the PSR in calculating Garcia’s sentence. Garcia contends that the district court made several errors in calculating his offense level for sentencing. The issues addressed in this appeal were the subject of objections Garcia filed to the PSR which his counsel reiterated at sentencing and which the district court did not find persuasive.

STANDARD OF REVIEW

We review the district court’s findings of fact for clear error and accord due deference to the court’s application of the Sentencing Guidelines to the facts. 18 U.S.C. § 3742(e); United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990). Our review of questions of legal interpretation of the Guidelines is de novo. United States v. Phillips, 952 F.2d 591, 594 (1st Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992).

DISCUSSION

The district court applied U.S.S.G § 2A2.2, entitled “Aggravated Assault,” as the applicable guidelines section to determine Garcia’s offense conduct.¹

The commentary to § 2A2.2 defines aggravated assault, in relevant part, as “a felonious assault that involved ... a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten).” U.S.S.G. § 2A2.2, cmt., note 1. Hence, in order to apply § 2A2.2, the aggravated assault provision, the district court was required to find that when Garcia drove his car at the officers, he did so with the intent to cause bodily harm. Garcia does not dispute that his automobile qualified as a dangerous weapon. Rather, Garcia contends that he did not have the intent required by § 2A2.2.

The district court’s finding of intent is a factual finding which we review for clear error. United States v. Wheelwright, 918 F.2d 226, 227-28 (1st Cir.1990). Where the undisputed facts support more than one plausible inference, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. United States v. Newman, 982 F.2d 665, 671-72 (1st Cir.1992), cert. denied, — U.S.-, 114 S.Ct. 59, 126 L.Ed.2d 28 (1993).

Garcia contends that his statement of acceptance of responsibility negates the possibility that he intended to cause bodily harm to Agent Lennon. The Probation Department adopted the following statement by Garcia when it made its recommendations in the PSR:

I, Eduardo Garcia, hereby accept responsibility for my actions on September 15, 1992.

I was on Indiana Avenue when a car pulled in front of mine and a bunch of men jumped out with guns. I then drove my car in an attempt to get away from this area. During this time I drove my car at a person which I now know was Special Agent Lennon from the Bureau of Alcohol, Tobacco and Firearms.

I drove at the agent in an attempt to get out of there. I never intended to hit him with my car. It was my intention to scare him so I could leave.

(emphasis added).

Based on this statement, the Probation Department recommended and the court granted a three-level decrease of Garcia’s offense level pursuant to U.S.S.G. § 3E1.1, “Acceptance of Responsibility.” Garcia contends that his statement was implicitly accepted as truthful by the Probation Department, the Government, and the court when the Probation Department adopted the statement made by Garcia into the PSR and the court granted García a reduction in sentence based on § 3E1.1. Garcia therefore argues that his statement shows that he lacked the necessary intent to do bodily harm required for an application of § 2A2.2.

United States Sentencing Guidelines § 3E1.1, cmt., note 1(a), provides that considerations in determining whether a defendant qualifies for the Acceptance of Responsibility reduction include “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct....”

We do not believe that, by granting Garcia a reduction for acceptance of responsibility, the court was required to accept Garcia’s statement that he lacked the intent to cause bodily harm as conclusive. The court may have disregarded Garcia’s statement as a self-serving prevarication that was insufficient to negate stronger inferences drawn from the record which suggested that Garcia did in fact have the requisite intent.

At sentencing, the court concluded:

It seems to me that under these circumstances it is not possible to come to the conclusion that what the Defendant is telling us at this point in time is actually what was on his mind at the time the incident occurred, that he certainly didn’t want to strike the officers but if he had to he was prepared to do it. That’s enough, it seems to me, to make this an aggravated assault.

The district court found that Garcia had the requisite intent to cause bodily harm and adjusted the offense level accordingly. Garcia aimed his car straight at Agent Lennon and each of the officers in turn. Agent Lennon was forced to jump onto a parked car to avoid being hit. This certainly supported the inference that Garcia intended to cause serious bodily harm. The district court did not abuse its discretion in concluding that Garcia had such an intent.

Alternatively, Garcia contends that the district court engaged in impermissible “double counting” because the four-level increase in the base offense level under § 2A2.2(b)(2)(B) for use of a dangerous weapon was based on the same use of a dangerous weapon that formed the predicate for finding the underlying offense an “aggravated assault” with a base offense level of 15 under U.S.S.G. § 2A2.2, rather than a “minor assault” that would have had a base offense level of 6 under U.S.S.G. § 2A2.3.

As we noted in Newman, 982 F.2d at 673 n. 8, the courts of appeals which have addressed this issue have reached different conclusions. See United States v. Williams, 954 F.2d 204, 206-08 (4th Cir.1992) (“double counting required”); but see United States v. Hudson, 972 F.2d 504, 506-07 (2d Cir.1992) (expressly disagreeing with Williams). In Newman, we addressed the analogous issue of whether a defendant’s base offense level can be increased pursuant to § 2A2.2(b)(3)(B) for causing “serious bodily injury,” notwithstanding the fact that the same factor formed the predicate for finding the underlying offense of interference with civil rights under color of law, see U.S.S.G. § 2H1.4(a)(2), to be an aggravated assault under U.S.S.G. § 2A2.2. We concluded that where a sentencing court calculated a defendant’s base offense level in exact accordance with the plain language of the applicable sentencing guidelines, and the guidelines addressing the crime of conviction reflect that they were drafted with the excesses of “double counting” clearly in mind, the sentencing court did not err in increasing the defendant’s base offense level pursuant to § 2A2.2(b)(3)(B). See Newman, 982 F.2d at 672-75. In United States v. Reese, 2 F.3d 870 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 928, 127 L.Ed.2d 220 (1994), the Ninth Circuit relied on Newman when it rejected a double counting challenge by defendants whose sentences were enhanced under § 2A2.2(b) for use of a weapon and infliction of bodily injury after they were convicted of federal civil rights crimes. Reese, 2 F.3d at 896.

We do not believe that the court’s enhancement of Garcia’s sentence under § 2A2.2(b)(2)(B) for use of an inherently dangerous weapon constitutes impermissible double counting. Rather, we agree with the Reese court’s interpretation of this situation:

[T]he use of a weapon transform[s] ... [the] offense from a minor assault to an aggravated-assault -in-which -a-dangerous-weapon-was-otherwise-used. That we use a single sentencing factor “twice” to trace the effects of this transformation (first to distinguish minor from aggravated assaults, then to distinguish more and less culpable aggravated assaults) is merely an accidental by-product of the mechanics of applying the Guidelines. It is not impermissible double counting.

Reese, 2 F.3d at 896 n. 2 (criticizing Hudson ).

Garcia next contends that the district court erred in increasing his base offense level by two levels pursuant to U.S.S.G. § 3C1.1, entitled “Obstructing or Impeding the Administration of Justice.”

United States Sentencing Guidelines § 3C1.1 states, in pertinent part, that a two-level enhancement is warranted “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” The commentary includes a non-exhaustive list of types of conduct to which the enhancement applies. One of the examples listed is “destroying or concealing ... evidence that is material to an official investigation or judicial proceeding ... or attempting to do so.” U.S.S.G. § 3C1.1, cmt., note 3(d).

Garcia argues that the record did not support the finding that he threw any heroin out the car window while being pursued by the arresting officers. We disagree.

The district court specifically found that Garcia threw heroin out the window of his car. The following evidence supports this finding: 1) Detective Colón, an experienced narcotics detective, observed what he believed to be heroin in Garcia’s lap; 2) La-dou’s written statement to the police acknowledging that McMullen had paid him to drive him from New Bedford, Massachusetts, to Providence, Rhode Island, to “do a deal” with a Puerto Rican male in a black car; and 3) it was undisputed that Garcia threw something, including cash, from the car as he fled from the police. Additionally, the record supports the inference that Garcia was McMullen’s heroin source and that McMullen had purchased heroin from Garcia in the past. The court’s findings that Garcia threw a quantity of heroin out the window was not clearly erroneous.

Garcia next contends that even if the record did support such a finding, § 3C1.1 expressly excludes his conduct from the scope of the enhancement. He maintains that his conduct was “a spontaneous or visceral or reflexive response occurring at the point arrest [became] imminent” to which § 3C1.1 does not apply. See United States v. Sykes, 4 F.3d 697, 699 (8th Cir.1993).

Garcia incorrectly assumes that the spontaneity of his response will shield him from the two-level enhancement for obstruction of justice. The comment to § 3C1.1 provides that where the conduct “occurred contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender.” U.S.S.G. § 3C1.1, cmt., note 3(d). Therefore, a district court properly applies the enhancement where it properly concludes that a defendant’s actions materially hinder an investigation, prosecution, or sentencing.

The drugs that Garcia allegedly tossed out the window were never recovered. The record permits the inference that the absence of this evidence hindered the prosecution’s ability to pursue a conviction on the drug count after its main witness, McMullen, refused to cooperate with the prosecution. Under these circumstances, the district court did not err in finding that the prosecution was materially hindered by Garcia’s actions.

As a final challenge, Garcia contends that the district court erred in increasing his base offense level by three levels pursuant to U.S.S.G § 3A1.2, entitled “Official Victim.” That section provides for a 3-level increase if:

(a) the victim was a government officer or employee; a former government officer or employee; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status; or

(b) during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.

U.S.S.G. § 3A1.2.

Garcia contends that in order for the increase under § 3A1.2 to be properly assessed, the assault must have been either motivated by the officer’s status, or conducted in a manner creating a substantial risk of serious bodily injury. Garcia argues that neither of these circumstances have been shown to be present in this case. Contrary to Garcia’s contentions, we find that the record supports a finding that Garcia’s actions were both motivated by the officer’s status and conducted in a manner creating a substantial risk of serious bodily injury.

The district court found that in aiming his ear at the officers, Garcia was attempting to evade arrest. The district court stated:

That the evidence is that the police approached the vehicle and announced that they were the police. That under the circumstances it seems quite clear that the Defendant was aware that the people who were seeking to take him into custody were police officers and, therefore, that objection is overruled.

The record supports the court’s finding. It indicates that Garcia knew that the police officers were approaching him. As they approached the ear, the agent and the officers displayed their identification and weapons and yelled, “police.” One of the officers was in uniform and used his marked cruiser, with its emergency lights activated, to block Garcia’s egress.

Additionally, the record supports the conclusion that Garcia’s conduct created a substantial risk of bodily injury. Agent Lennon had to jump out of the way to avoid being struck by Garcia’s car. Garcia’s conduct also gave rise to a police chase which motivated the police officers to fire their weapons, creating an additional substantial risk. These circumstances warranted application of the official victim enhancement. In so finding, the district court did not abuse its discretion.

Affirmed.

1 . García contends that the court should not have applied U.S.S.G. § 2A2.2. He contends that the court erred by classifying his conduct as aggravated assault and that the proper guideline for his offense conduct is § 2A2.4, entitled "Obstructing or Impeding Officers.”

Garcia did not argue in the district court that § 2A2.4 should apply. Garcia therefore waived this argument. United States v. Ortiz, 966 F.2d 707, 717 (1st Cir.1992) (citing United States v. Dietz, 950 F.2d 50, 55 (1st Cir.1991) for the proposition that "in [the] criminal sentencing context, arguments not addressed to the trial court at the appropriate time are deemed to be abandoned") (internal citation omitted), cert. denied, -U.S.-, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993).