United States v. Marcus Thompson ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0048n.06
No. 14-5498
FILED
UNITED STATES COURT OF APPEALS Jan 14, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MARCUS THOMPSON, ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)
Before: COLE, Chief Judge; KETHLEDGE, Circuit Judge; OLIVER, District Judge.*
KETHLEDGE, Circuit Judge. Marcus Thompson pled guilty to failing to register as a
sex offender and to assaulting, resisting, or impeding a federal officer with a dangerous weapon,
in violation of 18 U.S.C. §§ 2250(a) and 111. For these offenses, the district court sentenced
Thompson based on the Sentencing Guidelines for aggravated assault and assault against an
official victim. Thompson appeals his sentence, arguing that he impeded rather than assaulted a
federal officer. We affirm.
I.
The district court accepted the following account as true. In 2002, Thompson was
convicted of indecency with a child in Texas, which required him to register as a sex offender.
Several years later, he left Texas to live with his brother in Tennessee, but failed to update his
*
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S. District Court for the
Northern District of Ohio, sitting by designation.
No. 14-5498
United States v. Thompson
sex-offender registration as required by state and federal law. A warrant issued for his arrest in
2011. In 2012, a federal marshal, followed by a local police officer, spotted Thompson driving
through Martin, Tennessee. The two officers signaled for Thompson to stop. Thompson pulled
his Suburban off the road and stopped for a moment, but then drove away. The officers gave
chase.
Thompson soon lost control of his car due to slippery roads and slid into another car. The
officers caught up to Thompson and got out of their cars. The marshal then walked towards the
crashed cars—gun drawn—yelling at Thompson to show his hands. Thompson initially put both
hands up. Once the marshal was two or three feet away from the driver’s door, however,
Thompson put his right hand down to shift gears (eliciting another yell from the marshal), smiled
at the marshal, and floored the accelerator, sending the Suburban lurching towards the marshal.
Fearing for his life, the marshal fired several shots at Thompson, hitting him twice. Thompson
veered away from the marshal and then drove to his brother’s house, where he was arrested.
Thompson pled guilty to failing to register as a sex offender and to assaulting, resisting,
or impeding a federal officer with a dangerous weapon, in violation of 18 U.S.C. §§ 2250(a) and
111. At sentencing, however, Thompson testified that he had not intended to drive towards the
marshal. Instead, he said, the Suburban had lurched towards the marshal when it became tangled
with the other crashed car. The district court did not specifically find whether Thompson
intended to harm or frighten the marshal; but the court determined, based in part on the marshal’s
testimony, that Thompson had assaulted the marshal while attempting to flee.
The court then calculated Thompson’s sentence using Sentencing Guidelines § 2A2.2,
which specifies a base offense level of 14 for aggravated assaults. The court also applied a six-
point enhancement for assaults against official victims. U.S.S.G. § 3A1.2(c)(1). After other
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United States v. Thompson
adjustments, the court found that Thompson’s total offense level was 21 and that his Guidelines
range was 77 to 96 months. The court imposed a 77-month sentence.
This appeal followed.
II.
We review the district court’s factual findings for clear error, and the Guidelines’
application to a set of facts de novo. United States v. Brika, 487 F.3d 450, 454 (6th Cir. 2007).
Thompson challenges the application of § 2A2.2 to the calculation of his Guidelines
range. That section applies to “aggravated assault,” which the application notes define as “a
felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e.,
not merely to frighten) with that weapon; (B) serious bodily injury; or (C) an intent to commit
another felony.” U.S.S.G. § 2A2.2, Application Note 1. These aggravators differentiate an
aggravated assault from a simple assault. United States v. Smith, 910 F.2d 326, 331 (6th Cir.
1990). Here, Thompson concedes that the last aggravator—intent to commit another felony—is
present. Specifically, he admits that his car lurched towards the marshal during an attempt to
evade arrest, which is a felony under Tennessee law. See Tenn. Code § 39-16-603(b)(1), (3).
But Thompson argues that no underlying assault occurred.
Neither the Guidelines nor the notes define “felonious assault.” In the absence of a
definition, Thompson contends that Tennessee law controls. The government’s position on that
issue is unclear—sometimes it appears to agree that Tennessee law controls, sometimes not. We
have our doubts that state law controls the definition of “felonious assault” for purposes of
§ 2A2.2; but strictly for purposes of our analysis here, we will answer Thompson’s argument on
its own terms and assume that Tennessee law controls.
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No. 14-5498
United States v. Thompson
Under Tennessee law, per Thompson’s own formulation, the question whether he
assaulted the marshal depends on whether Thompson “knowingly or intentionally caused [the
marshal] to fear imminent bodily injury[.]” Appellant’s Br. 15. There is no question that
Thompson caused the marshal to fear imminent bodily injury, since Thompson undisputedly
caused him to fear for his life. But Thompson argues that he did not inspire that fear knowingly,
asserting that he did not know the marshal was nearby when he put the Suburban in gear. But
the district court credited the marshal’s testimony instead of Thompson’s; and the marshal
testified that he repeatedly yelled commands to Thompson while approaching the car, that he
yelled again when Thompson put his hand down, and that Thompson smiled at him just before
flooring the accelerator. These facts show that Thompson knew full well where the marshal was
when Thompson put the car into gear and floored the accelerator. The record therefore supports
the district court’s application of § 2A2.2.
Finally, the marshal was an official victim under § 3A1.2(c)(1), so the district court
properly applied that enhancement as well.
The district court’s judgment is affirmed.
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