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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10392
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00037-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS M. JACKSON, JR.,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(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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