United States v. Wilson ( 2021 )

Case: 20-20270 Document: 00515904732 Page: 1 Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 20-20270
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Isaiah Mykal-Lewis Wilson,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-468-1
Before King, Dennis, and Ho, Circuit Judges.
Per Curiam:*
Isaiah Mykal-Lewis Wilson pleaded guilty to a one-count information,
which alleged that he forcibly assaulted, resisted, opposed, impeded,
intimidated, and interfered with A.H., a federal employee of the U.S. Postal
Service, while she was engaged in the performance of her official duties, in
violation of 18 U.S.C. § 111(a). On appeal, Wilson challenges the sentence
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20270 Document: 00515904732 Page: 2 Date Filed: 06/17/2021
No. 20-20270
imposed by the district court following his guilty plea. For the reasons that
follow, we AFFIRM.
I.
According to the presentence report, on May 30, 2019, A.H., a federal
employee of the U.S. Postal Service, bent over to place a package in a mailbox
and “felt the right side of her pants being pulled down.” When A.H. tried to
turn around, Wilson, whose pants were down, held her neck in a chokehold.
A.H. reported that “she could feel [Wilson] trying to penetrate her from
behind.” A.H. struggled with Wilson to try to get away and said “Call 911”
into her Bluetooth headset, thinking it would connect her with the police.
Wilson then fled the scene, at which point A.H. reported the incident by
calling 911 and her supervisor.
At sentencing, over Wilson’s objection, the district court applied
§ 2A2.2, the aggravated assault Guideline. As such, once the two-level
deduction for acceptance of responsibility was applied, Wilson’s total offense
level was twelve. With a criminal history category of I, the advisory
Guidelines range was ten to twelve months of imprisonment. The statutory
maximum was twelve months of imprisonment, and after considering the
Guidelines, the 18 U.S.C. § 3553(a) factors, the victim statement, and
Wilson’s previous criminal record, the district court sentenced him to twelve
months of imprisonment followed by a one-year term of supervised release.
Wilson timely appealed, arguing that § 2A2.2 should not apply because his
conduct did not constitute aggravated assault.
II.
“We review the district court’s application and interpretation of the
[S]entencing [G]uidelines de novo and its factual findings for clear error.”
United States v. Gonzalez–Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). “A
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factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).
III.
At bottom, this appeal is about whether the district court clearly erred
in determining that Wilson’s relevant conduct constituted an aggravated
assault.1 Specifically, did Wilson’s relevant conduct evidence an intent to
commit another felony during the course of a felonious assault? See United
States v. Robles, 557 F. App’x 355, 357 (5th Cir. 2014) (citing United States v.
Goynes, 175 F.3d 350, 353 (5th Cir. 1999)). Because the district court’s
determination that Wilson intended to commit another felony during the
course of a felonious assault was not clearly erroneous, we must affirm.
Although Wilson contends, as he did before the district court, that his
conduct cannot constitute “aggravated assault” because he pleaded guilty to
a misdemeanor under 18 § U.S.C. 111,2 Wilson’s argument suffers from a
fatal defect. Namely, Wilson focuses on his charged conduct instead of his
relevant conduct. As discussed below, neither caselaw nor the Guidelines
support doing so.
Of course, Wilson’s charged conduct is the starting place for
determining his Guidelines range, and he is correct that the initial Guideline
we are pointed to is not § 2A2.2 but rather is § 2A2.4, the Guideline for
1
The comments to § 2A2.2, as relevant here, define “aggravated assault” as “a
felonious assault that involved . . . an intent to commit another felony.”
2
In other words, by pleading guilty to a misdemeanor, Wilson contends that his
conduct cannot constitute a “felonious assault that involved . . . an intent to commit
another felony” as the comments to § 2A2.2 define “aggravated assault.” Instead, he
argues that his base offense level should have been determined by applying § 2A2.4
(“Obstructing or Impeding Officers”). According to Wilson, applying § 2A2.4 would have
resulted in a base offense level of ten and an advisory Guidelines range of eight to twelve
months instead of ten to twelve months.
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obstructing or impeding officers. See U.S.S.G. §§ 1B1.1, 1B1.2. But within
§ 2A2.4 is a cross-reference that provides that if the defendant is convicted
under 18 § U.S.C. 111, as Wilson was, and the conduct constituted
aggravated assault, then the district court should apply § 2A2.2. See U.S.S.G.
§ 2A2.4(c)(1).
Importantly, “in determining the applicability under § 2A2.4(c)(1) of
§ 2A2.2, the district court is not limited to considering the conduct of the
offense of conviction, but also may consider the defendant’s ‘underlying
conduct’ or . . . the ‘relevant’ conduct.” Robles, 557 F. App’x at 357 (quoting
United States v. Street, 66 F.3d 969, 979 (8th Cir. 1995)); see also United States
v. Padilla, 961 F.2d 322, 325–27 (2d Cir. 1992) (emphasizing that the district
court must consider “actual conduct” in determining the Guidelines range);
United States v. Gonzales, 996 F.2d 88, 93 (5th Cir. 1993) (citing United States
v. Padilla favorably for the proposition that the district court considers
relevant conduct in determining the Guidelines range). Indeed, the
Guidelines say as much. See U.S.S.G. § 1B1.3 (explaining that “cross
references . . . shall be determined on the basis of . . . all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant”).
With the understanding, then, that the district court must consider
Wilson’s relevant conduct in determining whether Wilson’s conduct
constituted an aggravated assault, we now turn to whether the district court’s
factual findings on that score were clearly erroneous. And in so reviewing the
district court’s findings, we note that we have previously explained 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).
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In this case, the district court found that Wilson made physical contact
with A.H. and then attempted to penetrate her from behind while his pants
were down. And indeed, although Wilson initially provided investigators
with a different story, he acknowledged that his interactions with A.H. were
“sensual or sexual in nature,” and subsequently pleaded guilty to
approaching A.H. and pulling down her pants while standing right behind
her, at which point a struggle ensued.
Against that backdrop, Wilson’s conduct, which was not an instance
of a mere verbal threat but rather included pulling down his pants and
attempting to penetrate A.H. from behind, constitutes “something more,”
thereby implicating § 2A2.2. Id. In other words, notwithstanding Wilson’s
guilty plea to a misdemeanor charge, the district court did not clearly err in
determining that Wilson’s relevant conduct constituted an aggravated
assault—in this case, a felonious assault with the intent to commit another
felony (sexual assault).3 See United States v. Cozzi, 613 F.3d 725, 734 (7th Cir.
2010) (explaining that where a defendant acknowledged in his federal plea
that he hit the victim with a dangerous weapon, the defendant could “make
no serious argument that the conduct to which he pled guilty [did] not
constitute felonious assault, his bargain in state court [where he pled guilty
to a misdemeanor] notwithstanding”); cf. United States v. Siler, 734 F.3d
1290, 1297 (11th Cir. 2013) (noting that even if the defendant had been
charged with “what would have been—in the absence of the use of a deadly
or dangerous weapon—a misdemeanor offense under § 111(a), his use of a
3
In Texas, sexual assault is a felony. TEX. PENAL CODE § 22.011(f). Under Tex.
Penal Code § 22.011(a), “a person commits [such] an offense if the
person . . . knowingly . . . causes the penetration of the anus or sexual organ of another
person by any means, without that person’s consent . . . or causes the sexual organ of
another person, without that person’s consent, to contact the . . . sexual organ of . . . the
actor.”
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deadly or dangerous weapon during that offense transformed his act from a
misdemeanor offense . . . to a felony offense . . .”).
Accordingly, the district court did not clearly err in its factual finding
that Wilson’s relevant conduct constituted a felonious assault with intent to
commit another felony, and the application of § 2A2.2 was proper.
IV.
For the foregoing reasons, we AFFIRM.
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