United States v. Samuels, Mark A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3713
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK A. SAMUELS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30155—Michael J. Reagan, Judge.
____________
ARGUED SEPTEMBER 11, 2007—DECIDED APRIL 10, 2008
____________
Before RIPPLE, MANION, and WOOD, Circuit Judges.
MANION, Circuit Judge. Mark Samuels (“Samuels”)
was charged in a one-count indictment with aiding and
abetting a felon in possession of a firearm in violation of
18 U.S.C. §§ 2 and 922(g)(1). After a jury returned a
guilty verdict, the district court sentenced Samuels to a
seventy-eight-month term of imprisonment. Samuels ap-
peals his conviction and sentence, and we affirm.
I.
Sometime in the fall of 2004, Mark Samuels provided his
cousin, Stephen Perkins (“Stephen”), with a Glock .45
2 No. 06-3713
caliber firearm for Stephen’s protection after Stephen had
been robbed. Samuels later sought to retrieve the Glock
from Stephen. After unsuccessfully attempting to con-
tact Stephen through Stephen’s mother, Samuels told
another cousin, Katraelyus Franklin (“Katraelyus”), that he
wanted his Glock and asked if he knew where Stephen
was.1 On October 13, 2004, Katraelyus drove Samuels and
Samuels’s brothers, Marlon Samuels and Terry Samuels,
a convicted felon, (“Marlon” and “Terry,” respectively),
in his van to find Stephen. In addition to bringing along
his brothers, Samuels also brought a baseball bat and a
gun, an FEG Model FP9 .9mm semi-automatic pistol
(“FEG” or “gun”), with him. Samuels later stated during
a taped police interview that he brought the gun be-
cause he was afraid Stephen might fight him or that he
might encounter “escalated problems” in the course of
trying to retrieve the Glock from Stephen.
The group found Stephen at County Line, a liquor
store and gas station located in Cahokia, Illinois. Stephen
recognized his cousins and walked toward the van to
talk with them. Stephen testified at trial that Samuels
“turn[ed] around to give Terry the gun when I was walk-
ing towards them.” Upon further questioning, Stephen
clarified that he had not actually seen what Samuels
handed Terry, but rather he “watched [Samuels] go into
his pants and pull something out [Stephen] reflected as a
gun, turn[ ] around and hand it to [Samuels’s] brother.”
Although the transfer of the gun from Samuels to Terry
1
At oral argument, Samuels’s counsel relayed that Samuels
tried to reclaim the Glock because he wanted to prevent his
cousin or him from being tied to some criminal history that
was connected with that firearm.
No. 06-3713 3
was not clear, there was no question that Terry had the
gun in the encounter with Stephen that followed.
Samuels patted down Stephen and, when he did not
find the Glock, went to search Stephen’s car. At Samuels’s
direction, Marlon and Terry took Stephen around the
side of the store building. When he did not find the Glock
in the car, Samuels returned with the ashtray from Ste-
phen’s car and began beating Stephen in the face with it.
Marlon and Terry also struck Stephen. Stephen testified
that all of the men started hitting him until he passed out.
The County Line clerk heard a scuffle and yelling out-
side the store where he saw one person holding Stephen,
one person standing next to him, and another person
hitting him. The clerk also testified at trial that Stephen
was bleeding and that one of the individuals was pointing
a gun at him. The clerk identified the clothing of the per-
son with the gun, a jacket hood and pair of pants, as
the same clothing identified by Stephen as having been
worn by Terry that day. At that point, the clerk yelled at
them to take their argument somewhere else, so the
group piled into Katraelyus’s van and left.
From County Line, Katraelyus drove to Samuels’s home.
While en route, Samuels and Terry struck Stephen. Stephen
told them that another cousin, Tracy Perkins (“Tracy”), had
the Glock in her car and that she was working at an area
nursing home. Once at Samuels’s house, Samuels beat
Stephen with a bat, and Marlon beat him with brass
knuckles. Leaving Samuels’s home, Samuels, Stephen,
Terry, Katraelyus, and Marlon drove in Samuels’s van
to the nursing home. Stephen testified that Terry beat
Stephen during that drive and that Samuels never told
Terry to stop hitting Stephen.
4 No. 06-3713
Upon arriving at the nursing home, Samuels went
inside and told Tracy that he was Stephen’s cousin and
that Stephen needed to get something out of her car. When
she walked outside the nursing home, Tracy saw Stephen,
who she testified was “beat up bad.” Then Tracy and
Samuels walked to Tracy’s car located in a back parking
lot where they searched the trunk. Again, Samuels was
unable to find the Glock. While Tracy drove her car to
the front lot where Samuels’s van was parked so Stephen
could go through the car and get whatever was his out
of the car, Samuels walked back to his van.
During the time Tracy and Samuels were searching
her car, Terry allowed Stephen to exit the van in order
to get some fresh air. Stephen testified at trial that Terry
had the FEG in his pants at that point and that he jumped
on Terry’s back in an attempt to wrest the FEG from him.
A fight then ensued, and Stephen testified that at Terry’s
direction Marlon attempted to cut Stephen and that once
he was able to break away from Terry he fell because he
was bleeding badly. What Samuels did upon his return to
the van is disputed: Samuels told Detective Becker,
who had conducted his post-arrest interview, that when
he returned Stephen and Terry were fighting, Stephen
was bloody, and he separated Stephen and Terry from
fighting. Stephen, however, testified at trial that Samuels
grabbed him by the collar and struck him in the fore-
head with the butt of the FEG, and then the group threw
Stephen back in the van. Based on Stephen’s and Samuels’s
testimony, Samuels must have “separated” Terry and
Stephen by taking the gun from Terry (who, according
to Stephen’s testimony, had the gun in his pants) and
hitting Stephen with it. Stephen sustained facial injuries
as a result of the events that occurred in the parking lot,
leaving blood there as well as in the van.
No. 06-3713 5
Before being thrown back into the van, Stephen shouted
to Tracy that one of the men had a gun. Tracy ran inside
the nursing home where she called 911. A tape recording
of Tracy’s 911 call was played for the jury. During the
call, Tracy frantically told the operator that men had
taken her car, were beating and killing her cousin, and
had a gun. Tracy also provided a description of her car
and Samuels’s van. While Tracy was placing her 911 call,
Katraelyus drove away with Stephen, Samuels, and Terry
as passengers. Marlon left driving Tracy’s car.
Responding to the 911 call, Officer Brian Dowdy of the
Belleville Police Department noticed a van that fit the
description relayed by dispatch, so he started to follow
the van, losing sight of it for a short period of time. Seeing
a police car behind his van and knowing that Terry could
get in trouble if he was found in the van with a gun,
Samuels stated that he tried to throw the gun out of the
van, but it landed in Terry’s lap, who, in turn, threw it
out of the vehicle. Stephen, on the other hand, testified
at trial that Samuels handed Terry the gun and told Terry
to take off running, after which Terry jumped out of
the slowly moving van. Either way, Belleville police
officers later located the gun in a flower planter box of a
nearby house, and Terry was later apprehended in the
neighborhood where the van eventually was stopped.
Officer Dowdy temporarily lost sight of Samuels’s van,
but did confirm that it met the description relayed by
dispatch. Terry apparently exited the van, along with
the FEG, when Officer Dowdy lost sight of it, because
when he caught up with it and pulled it over, Terry was
not in it. Instead, inside the van he found Stephen bleeding
from his face and head. Samuels described his gun to
Officer Dowdy and told him it was thrown from the van.
6 No. 06-3713
On December 16, 2004, Samuels was charged in a one-
count indictment with aiding and abetting a felon in
possession of a firearm in violation of 18 U.S.C. §§ 2 and
922(g)(1). At his plea hearing, Samuels agreed that the
government would be able to prove beyond a reasonable
doubt that his brother, Terry, was a prior convicted
felon who possessed a firearm that had traveled in inter-
state commerce. In response to the court’s inquiry,
Samuels also agreed that the government could prove
beyond a reasonable doubt that he “knowingly aided in
the commission of an offense by associating with the
criminal activity, participating in the activity, and trying
to make it succeed.” After the government read its state-
ment of the case, however, Samuels stated that while he
did bring the FEG into the van, he did not hand Terry
the gun or show him where it was. The district court
declined to accept Samuels’s guilty plea, concluding that
Samuels only admitted to having the FEG in the van and
did not admit to aiding and abetting Terry in possessing
the FEG. At that same hearing, Samuels attempted to enter
a plea pursuant to North Carolina v. Alford, 400 U.S. 25,
27 (1980), by which he would conditionally plead guilty
to the crime charged, while maintaining his innocence.
While the district court was amenable to accepting an
Alford plea from Samuels, the government would not
agree to an Alford plea, and the case was set for trial.
At trial, Stephen, Katraelyus, Tracy, Officer Dowdy,
and Detective Becker of the Belleville Police Department
testified. During the course of Detective Becker’s testi-
mony, the jury viewed a video recording of Samuels’s post-
arrest interview. In addition, Agent Dan Owens of the
Bureau of Alcohol, Tobacco, and Firearms testified that
the FEG had been manufactured in Hungary and im-
No. 06-3713 7
ported into the United States. Bart Naugle, a DNA Analyst,
also testified stating that he conducted a DNA test on the
blood swabbed from the FEG and concluded that it was
from Stephen Perkins. Over Samuels’s objection, the
jury also heard extensive testimony about the beatings
Stephen sustained, as well as a tape of Tracy’s 911 call,
and saw photographs of the blood in the nursing home
parking lot and of Stephen’s injuries. The jury convicted
Samuels.
The United States Probation Office prepared a
presentence investigation report (“PSR”). The PSR set
forth a total offense level of twenty-eight and a criminal
history category I resulting in a sentencing range under
the United States Sentencing Guidelines of seventy-eight
to ninety-seven months’ imprisonment. Samuels argued
that the aggravated assault cross-reference which the
PSR applied was improper because the government
failed to seek a special verdict for aggravated battery. In
addition, he objected to the assessment of six points to
his offense level for Stephen sustaining injuries that
were serious to permanent. Samuels also asserted that he
was entitled to a reduction in his offense level for accep-
tance of responsibility and concluded that his total
offense level should be fourteen with a criminal history
category I, resulting in a Guideline range of fifteen to
twenty-one months’ imprisonment. After hearing argu-
ment from both Samuels’s attorney and the government,
as well as testimony from Stephen, Stephen’s mother, and
Samuels’s wife, the district court overruled Samuels’s
objections and sentenced him to a seventy-eight-month
term of imprisonment. Samuels appeals, challenging the
sufficiency of the evidence supporting his conviction, the
admission of the 911 tape and photographs, and the dis-
trict court’s application of the Guidelines.
8 No. 06-3713
II.
On appeal, Samuels challenges the sufficiency of the
evidence supporting the jury’s verdict. We note that
“[d]efendants challenging the quantum of evidence
supporting a jury verdict face a daunting task.” United
States v. Wortman, 488 F.3d 752, 754 (7th Cir. 2007) (quoting
United States v. Luster, 480 F.3d 551, 555 (7th Cir. 2007)). In
reviewing a sufficiency of the evidence challenge, we
“consider[ ] the evidence in the light most favorable to the
government, defer[ ] to the credibility determinations of
the jury, and . . . overturn[ ] a verdict only when the record
contains no evidence, regardless of how it is weighed,
upon which a rational trier of fact could find guilt beyond
a reasonable doubt.” United States v. Dabney, 498 F.3d
455, 460 (7th Cir. 2007) (quoting United States v. Cummings,
395 F.3d 392, 397 (7th Cir. 2005)).
To be guilty of aiding and abetting, an individual must
have knowledge of the underlying illegal activity and a
desire to assist in the success of the activity, and provide
an act of assistance. United States v. Serrano, 434 F.3d 1003,
1004 (7th Cir. 2006); United States v. Stott, 245 F.3d 890, 904
(7th Cir. 2001). “[M]ere presence at the time of the crime
is insufficient to support a conviction for [aiding and
abetting].” United States v. Bonty, 383 F.3d 575, 579 (7th Cir.
2004). “Under an aiding and abetting theory, ‘[p]artic-
ipation may be established by circumstantial evidence,
and the evidence may be of relatively slight moment.’ ”
United States v. Folks, 236 F.3d 384, 389 (7th Cir. 2001)
(quoting United States v. Coleman, 179 F.3d 1056, 1061 (7th
Cir. 1999)). “An aider presumptively intends the natural
and probable consequences of his actions . . . .”
United States v. Andrews, 442 F.3d 996, 1002 (7th Cir. 2006)
(internal citation and quotation omitted).
No. 06-3713 9
Here the underlying offense was a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). The elements
of a felon in possession of a firearm charge are threefold:
1) the individual was a convicted felon prior to the date
in question; 2) the individual possessed a firearm; and
3) the firearm traveled in interstate commerce. United
States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007). Therefore,
to aid and abet a felon in possession of a firearm, the
defendant must know or have reason to know that the
individual is a felon at the time of the aiding and abetting,
and, in turn, must assist the felon in possessing a firearm.
On appeal, Samuels does not challenge the sufficiency
of the evidence as it relates to Terry being a prior con-
victed felon who possessed a firearm that traveled in
interstate commerce. Rather, Samuels only challenges the
sufficiency of the evidence as it relates to whether he
aided and abetted Terry in possessing the FEG. Samuels
attacks Stephen’s testimony about whether he saw Samuels
hand Terry the gun at the County Line. Stephen initially
testified that he saw Samuels hand Terry the gun when
they got out of the van at the County Line, but later
clarified that he saw Samuels hand Terry what Stephen
“reflected” was a gun. Finally, on cross-examination,
Stephen responded, “No,” when asked whether he saw
whatever it was that Samuels handed Terry. Stephen’s
testimony on the exact details of the hand-off shifted, but
it was for the jury to determine which portion, if any, of
this testimony is credible and what weight that testimony
was to carry. See generally United States v. Duran, 407 F.3d
828, 845 (7th Cir. 2005). Stephen, however, stated without
question that Terry had the gun after the handoff, pointing
it at Stephen and jamming it into Stephen’s back. Further-
more, Stephen also testified that as the police were at-
10 No. 06-3713
tempting to stop Samuels’s van, Samuels handed Terry
the gun and told him to get out of the vehicle. Moreover,
Samuels stated in his post-arrest interview that the FEG
was his and that he brought it with him because he was
afraid of what might happen when he found Stephen.
Samuels was also the first to strike Stephen, thereby
commencing a violent chain of events that unfolded that
evening, which included Terry’s possession of the FEG.
By bringing the gun and escalating the encounter with
Stephen into a violent one, Terry’s possession of the
firearm was the natural consequence of Samuels’s actions
and one which Samuels, as his aider and abetter, was
presumed to have intended. Andrews, 442 F.3d at 1002.
Samuels was the aider and abetter from the start to the
finish. He recruited Terry (and Marlon and Katraelyus).
The four of them set out in Katraelyus’s van in search of
Stephen. Samuels brought with him a baseball bat and
his FEG. He admitted he brought them in case of a con-
frontation. When they found Stephen at the County Line,
Stephen saw Samuels hand Terry what he thought might
have been a gun. He quickly realized Terry had a gun
when Terry held it against him as they walked behind
the store. After switching vehicles and traveling to the
nursing home where Tracy worked, Samuels broke up a
fight between Terry and Stephen by hitting him with
the FEG, which Stephen said Terry had in his pocket. They
left that scene, but the police were soon in pursuit. Samuels
either threw or handed the FEG to Terry, and Terry ran off
and ditched the gun, which the police found in a nearby
flower pot. Terry possessed the FEG in the middle of and
at the end of this violent episode, and Samuels facilitated
the entire possession. Therefore, there was sufficient
evidence upon which a rational trier of fact could
No. 06-3713 11
convict Samuels beyond a reasonable doubt of aiding and
abetting Terry, a convicted felon, in possession of a firearm.
Samuels also challenges the propriety of the admission
of evidence regarding the beatings Stephen sustained,
namely testimony about the beatings, photographs of blood
in Samuels’s van and on the nursing home parking lot, and
Tracy’s 911 call. Samuels contends that the bulk of the
evidence the government presented was related to events
other than the crime for which he was charged, namely
Terry’s violent conduct and the effects of that conduct.
“Evidence of a prior bad act may be admitted [ ] when
that act is so inextricably intertwined with, or intricately
related to, charged conduct that it helps the fact finder
form a more complete picture of the criminal activity.”
United States v. Morris, 498 F.3d 634, 642 (7th Cir. 2007)
(internal citation and quotation omitted). Intricately related
evidence is evidence that either completes the story of the
crime on trial, the absence of which “would create a
chronological or conceptual void in the story of the crime,”
or is “so blended or connected that [it] incidentally
involve[s], explain[s] the circumstances surrounding, or
tend[s] to prove any element of, the charged crime.” United
States v. Gougis, 432 F.3d 735, 742 (7th Cir. 2005) (internal
quotation and citation omitted). While not subject to the
constraints of Federal Rule of Evidence 404(b), inextricably
intertwined evidence “must satisfy the balancing test
set forth in Rule 403 to be admissible.” United States v.
Griffin, 493 F.3d 856, 867 (7th Cir. 2007). Rule 403 provides
that “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
12 No. 06-3713
evidence.” Fed. R. Evid. 403. We review evidence ad-
mitted over a Rule 403 objection for an abuse of discretion.
The district court’s admission of such evidence is “entitled
to special deference. Only in an extreme case are appellate
judges competent to second-guess the judgment of the
person on the spot, the trial judge.” United States v. Strong,
485 F.3d 985, 991 (7th Cir. 2007) (quoting United States
v. Gardner, 211 F.3d 1049, 1055 (7th Cir. 2000)).
We conclude that the testimony regarding the beatings
as well as the photographs and Tracy’s 911 call were
inextricably intertwined in setting forth the chronology
of the events that transpired the day Samuels brought
Terry the FEG and aided Terry in the possession of the
gun. The story of Terry’s possession and Samuels’s aiding
could not be told without the admission of evidence
regarding the beatings. This evidence, while certainly
disturbing, was essential to provide a chronology of the
events that ultimately led to Tracy calling 911 and the
police apprehending Samuels and Terry. In addition,
despite his admissions at the plea hearing and con-
cessions on appeal, the government was tasked at trial
with proving Terry was a prior convicted felon who
possessed a firearm as well as Samuels’s aiding and
abetting. The testimony about the beatings was “so blended
or connected that [it] incidentally involve[s], explain[s] the
circumstances surrounding, or tend[s] to prove any
element of, the charged crime,” particularly Terry’s
possession of the FEG. Gougis, 432 F.3d at 743. That testi-
mony presented eyewitness accounts of Terry’s pos-
session of the gun. It also presented evidence of Samuels’s
facilitating Terry’s possession of the gun and his acquies-
cence, if not encouragement, of Terry’s use of the gun.
Our inquiry, however, does not end here, and we must
determine whether the probative value of this evidence
No. 06-3713 13
was outweighed by its prejudicial effect. As for the testi-
mony, we conclude that it was necessary to prove Terry’s
possession of a firearm, particularly as encompassed
in Stephen’s testimony and the County Line clerk’s testi-
mony, and the probative value of that testimony out-
weighed any prejudicial effect. Furthermore, while this
evidence is offensive, in its absence “there would be
a chronological and conceptual void in the events sur-
rounding [Samuels aiding and abetting Terry’s possession
of the firearm] with the result that the other evidence
would appear detached and not in context with all of the
existing facts.” United States v. Ostrowsky, 501 F.2d 318,
322 (7th Cir. 1974). Samuels knew Terry had the gun,
he encouraged the ongoing assault with and without the
gun, and he directed Terry to dispose of the gun when the
police caught up with them. Finally, while another
judge might have reached a conclusion different from that
of the district court, the district court’s decision was not
fundamentally wrong and therefore we conclude it did
not abuse its discretion. See Hall v. Norfolk S. Railway Co.,
469 F.3d 590, 594 (7th Cir. 2006) (citation omitted).
Samuels points to the holding in Ostrowsky in support of
his claim that too much of his trial was spent on the
beatings. In Ostrowsky, we held that the evidence that a
car owner had been murdered was admissible to establish
the deceased’s vehicle had been stolen and afterward
had traveled interstate. However, evidence of the defen-
dant’s reasons for the murder as well as details regarding
the disposal of the victim’s body along with the tires of
the car used to dispose the body were not probative of any
element of the charged crime. Those additional details
could only serve to inflame the jury and prejudice the
defendant. Ostrowsky, 501 F.2d at 323. Unlike the details
14 No. 06-3713
of the murder in Ostrowsky, in this case the beatings were
not a singular event in time or only related to one element
of the crime. Rather, they were related, ongoing occur-
rences tightly woven into the chronology and circum-
stances of acts probative of the felon in possession ele-
ments as well as the aiding and abetting element of
Samuels’s charged crime. To that extent, we conclude that
the district court did not abuse its discretion in admitting
testimony about beatings Stephen suffered because they
went to the proof of Terry’s possession of the gun from the
time he received it to the time he got rid of it.
The admission of Tracy’s 911 call and photographs of
the blood in the nursing home parking lot, however, was
unnecessary to prove either the felon in possession prongs
or the aiding and abetting prong of Samuels’s charge. The
prejudicial value of the admission of that evidence out-
weighed its probative effect. However, we conclude that
the admission of this evidence was a harmless addition.
The other evidence presented at trial overwhelmingly
demonstrated that Terry was a felon who possessed a
firearm and that Samuels directly handed Terry the FEG
and created a violent situation which facilitated and
provided a rationale for the possession. He knowingly
brought a gun and a convicted felon into a tense situa-
tion, which, by his own making, became violent, thus
leading to the natural consequence of a felon’s possession
of a firearm. Andrews, 442 F.3d at 1002. In addition, the
district court gave the jury a the limiting instruction in
accord with the Seventh Circuit pattern instructions
which directed the jury to determine the defendant’s
guilt of the crime charged, despite having heard evidence
of other acts. In conjunction with the other evidence
presented at trial, we conclude that “[t]his limiting in-
No. 06-3713 15
struction mitigated whatever unfair prejudice may have
existed.” United States v. Lane, 323 F.3d 568, 582 (7th Cir.
2003).
Samuels asserts that even if this court does not vacate
his conviction, his case should be remanded for resen-
tencing. Samuels argues that the district court improperly
calculated his sentencing range under the United States
Sentencing Guidelines by applying the aggravated assault
cross-reference and a six-level increase in his offense
level for the injury sustained by Stephen being greater
than serious bodily injury, but less than permanent
bodily injury. Samuels also contests the district court’s
denial of a reduction in his offense level for acceptance of
responsibility. Finally, Samuels contends that his personal
characteristics warrant a sentence reduction. We will
address each of these claims in turn.
In sentencing, a district court must first calculate the
appropriate Guideline range by resolving disputed
factual issues, determining relevant conduct by a prepon-
derance of the evidence, and applying appropriate sen-
tencing enhancements. United States v. Robinson, 435 F.3d
699, 700-01 (7th Cir. 2006). Then, considering the factors
set forth in 18 U.S.C. § 3553, the district court must decide
whether to impose a sentence within or outside of the
Guideline range. Id. A sentence within the Guideline
range, for purposes of appellate review, is presumptively
reasonable. United States v. Sachsenmaier, 491 F.3d 680,
685 (7th Cir. 2007) (citing Rita v. United States, 127 S.Ct.
2456 (2007)). We review a district court’s application of
the Guidelines de novo and findings of fact for clear
error. A district court’s factual findings are entitled to
deference “unless we have a definite and firm conviction
that a mistake has been made.” United States v. Wilson,
16 No. 06-3713
502 F.3d 718, 721 (7th Cir. 2007) (quoting United States
v. Fudge, 325 F.3d 910, 920 (7th Cir. 2003)).
Pursuant to U.S.S.G. § 2X2.1, the offense level for aiding
and abetting is the same as the underlying offense. Thus,
we look to U.S.S.G. § 2K2.1, the felon in possession of a
firearm section, which provides a base offense level of
twelve for a felon in possession of a firearm. Section
2K2.1(c), also provides a cross-reference
[i]f the defendant used or possessed any firearm or
ammunition in connection with the commission or
attempted commission of another offense, or possessed
or transferred a firearm or ammunition with knowl-
edge or intent that it would be used or possessed in
connection with another offense, apply . . . § 2X1.1
(Attempt, Solicitation, or Conspiracy) in respect to
that other offense, if the resulting offense level is
greater than that determined above . . . .
U.S.S.G. § 2K2.1(c)(1)(A).
In this case the district court applied the cross-reference
for aggravated assault, which is a “felonious assault that
involved (1) a dangerous weapon with the intent to
cause bodily injury with that weapon; (2) serious bodily
injury; or (3) intent to commit another felony.” U.S.S.G.
§ 2A2.2, cmt., n.1. The base offense level for aggravated
assault is fourteen. The district court, in turn, made
additional findings of fact and applied specific offense
characteristics, namely the use of a dangerous weapon,
victim injury, a crime motivated by a thing of value, and
physical restraint of the victim to increase Samuels’s
base offense level from fourteen to twenty-eight.
Samuels argues that the application of the aggravated
assault cross-reference is in error because he was not
No. 06-3713 17
charged and convicted of aggravated assault and the
evidence does not establish that he possessed the requisite
intent for the cross-reference to apply. We conclude that
the aggravated assault cross-reference was appropriate.
Samuels aided and abetted Terry in possessing a fire-
arm “in connection with the commission . . . of another
offense,” namely the assault of Stephen. There was evi-
dence of the requisite intent. Samuels stated during his
post-arrest interview that he brought along his FEG in
anticipation of a fight while trying to regain the Glock from
Stephen. Stephen, in turn, testified that he thought he
saw Samuels hand Terry what appeared to be a gun,
Samuels directed Terry to hold Stephen, and Samuels
was the first to strike Stephen in the County Line parking
lot, thereby escalating the encounter which spawned a
violent chain of events. Moreover, there was trial testimony
that both Samuels and Terry struck Stephen with the gun.
Thus, based on the evidence presented at trial, the district
court did not err in applying the aggravated assault cross-
reference.
Next Samuels challenges the district court’s assessment
of a six-level increase for injury sustained by Stephen. The
Guidelines provide for a five-level increase for serious
bodily injury and a seven-level increase for permanent
bodily injury sustained by the victim of the crime. U.S.S.G.
§ 2A2.2(3). In this case, the district court imposed a six-
level increase, based on its finding that the Stephen’s
injuries were between serious and permanent.
A serious bodily injury involves extreme physical pain,
protracted impairment of a bodily member, organ, or
mental function, and requires medical intervention, such
as hospitalization. U.S.S.G. § 1B1.1, cmt n.1(L). A perma-
nent bodily injury, on the other hand, involves “substan-
18 No. 06-3713
tial risk of death; loss or substantial impairment of the
function of a bodily member, organ, or mental faculty
that is likely to be permanent, or an obvious disfigure-
ment that is likely to be permanent.” U.S.S.G. § 1B1.1,
cmt n.1(J). In addition to his trial testimony, Stephen
testified at the sentencing hearing that he was in the
hospital for a week, suffered headaches, had pain from a
bite mark he sustained during the fighting, and had
occasional blurred vision in his left eye. Stephen also
stated that he continued with counseling as a result of the
trauma of the attack. Stephen’s mother also testified at
sentencing. She stated that she had stayed with her son
for a week during his hospital stay following the alter-
cation with his cousins and that he suffered kidney dam-
age and a broken bone behind his eye upon which the
doctors did not operate because of the proximity to Ste-
phen’s eye. Had the government submitted medical re-
ports for the district court’s consideration at sentencing,
the proof for review might have been strengthened.
However, as it is, based on the testimonial evidence
presented at trial and sentencing of Stephen’s blood loss,
loss of consciousness on the date of the attacks, one-
week hospital stay, renal problems, recurring blurred
vision, headaches, and the continued need for counseling
following the attacks, we conclude that the district court
did not err in imposing a six-level increase in Samuels’s
offense level. The number and degree of the injuries
provided a sufficient basis for the district court’s deter-
mination that Stephen’s injuries were greater than the
extreme physical pain or protracted bodily impairment
required for serious bodily injury, but less than the sub-
stantial impairment required for a permanent bodily
injury. Compare United States v. Desormeaux, 4 F.3d 628, 630
(8th Cir. 1993) (holding that the serious bodily injury
No. 06-3713 19
enhancement applied where the victim had been stabbed
in the kidney, lost blood, and was hospitalized for four
days); United States v. Moore, 997 F.2d 30, 37 (5th Cir. 1993)
(affirming the serious bodily injury enhancement where
the victim was shot in the leg, treated in the emergency
room without a hospital stay, and suffered occasional leg
pain), with United States v. Webster, 500 F.3d 606, 607-08 (7th
Cir. 2007) (affirming the permanent bodily injury enhance-
ment where the victim suffered facial scarring); United
States v. Miner, 345 F.3d 1004, 1006-07 (8th Cir. 2003)
(affirming the permanent bodily injury enhancement
where the victim suffered permanent scarring and the
presence of a bullet inside his body).
Samuels also challenges the district court’s denial of a
two-level reduction in his offense level for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a). Samuels
asserts that he is entitled to the acceptance of responsi-
bility reduction because he attempted to enter a plea,
including an Alford plea. Samuels further notes that he
cooperated with Detective Becker after his arrest.
Because the district court’s denial of a reduction in the
offense level for acceptance of responsibility is a factual
determination, we review it for clear error. United States
v. Dong Jin Chen, 497 F.3d 718, 720 (7th Cir. 2007). The
district court concluded that an acceptance of responsibility
reduction was not warranted because Samuels put the
government to its burden of proving its case before a jury
and because Samuels did not accept responsibility for his
actions. We find that the district court did not err in
denying Samuels a reduction for acceptance of responsi-
bility. Not only did Samuels proceed to trial, but he put
the government to the burden of proving elements to
which he had agreed at his attempted plea, namely
20 No. 06-3713
those relating to Terry’s felon-in- possession charge.
Moreover, Samuels’s invocation of United States v. Rodri-
guez, 975 F.2d 999, 1008 (3d Cir. 1992), does not advance
his argument because unlike Rodriquez who was later
acquitted of a gun charge that he refused to admit at
his plea hearing, Samuels was convicted of aiding and
abetting his brother in possession of a firearm, thereby
undercutting his claim for acceptance of responsibility for
those elements to which he was prepared to plead guilty.
Finally, Samuels argues that his personal circumstances,
namely his status as a husband and caregiver to his
children, others’ children, and his parents entitle him to a
reduction in his Guideline sentence. We conclude that
Samuels’s circumstances are not so extraordinary as to
rise to a level of establishing that the Guideline sentence
“would have an effect on the family or family members
beyond the disruption to family and parental relation-
ships that would be present in the usual case.” United States
v. Canoy, 38 F.3d 893, 907 (7th Cir. 1994). Accordingly,
the district court did not err in declining to depart from
the properly computed Guideline range in imposing
Samuels’s sentence. Samuels did not challenge the reason-
ableness of his sentence, but rather only the Guideline
calculation. Accordingly, because the district court prop-
erly calculated Samuels’s Guideline range, we affirm his
sentence.
III.
Viewing the evidence in the light most favorable to the
government, we conclude that there was sufficient evi-
dence upon which a rational jury could convict Samuels
of aiding and abetting a felon in possession of a firearm.
No. 06-3713 21
The probative value of the testimony regarding Stephen’s
beatings outweighed its prejudicial effect, and any preju-
dice resulting from the admission of the 911 call and
photographs was harmless due to the other evidence and
limiting instruction the jury received. As for Samuels’s
sentence, the district court did not err in applying the
aggravated assault cross-reference, applying six points
for Stephen’s injuries being between serious and perma-
nent, and denying a reduction for acceptance of responsi-
bility. Finally, the district court did not err in declining
to reduce Samuels’s sentence based on his family cir-
cumstances, which were not extraordinary. Accordingly,
we AFFIRM Samuels’s conviction and sentence.
USCA-02-C-0072—4-10-08