United States v. Taliaferro, Paul ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3612
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL TALIAFERRO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 42--John C. Shabaz, Chief Judge.
Argued March 1, 2000--Decided May 1, 2000
Before ESCHBACH, COFFEY and Diane P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. While Paul Taliaferro was
serving a 70-month sentence for armed robbery, he
pled guilty to possession of marijuana by an
inmate in violation of 18 U.S.C. sec. 1791(a)(2)
and (d)(1)(B). As part of the plea agreement, he
stipulated to assaulting a federal officer in
violation of 18 U.S.C. sec. 111(a)(1) after
throwing a cup of urine into a prison guard’s
face, and upon his chest and arm. Taliaferro was
sentenced to a consecutive 30-month term of
imprisonment, three years’ supervised release,
and special assessment of $100. On appeal,
Taliaferro challenges: 1) the denial of a two-
level downward adjustment for acceptance of
responsibility; and 2) the three-level upward
adjustment he received because the assault
involved physical contact with the prison guard.
We affirm.
In September 1998, Taliaferro, while confined,
was visited in prison by his girlfriend, Deanna
Gary. Believing that Gary had slipped contraband
to Taliaferro during a kiss, prison authorities
placed him in a dry-cell./1 After three days in
the dry-cell, Taliaferro "passed" a plastic bag
containing 0.72 grams of marijuana. Upon
interrogation, Taliaferro claimed that he
received the marijuana from a fellow inmate, not
from Gary.
After Jones passed the plastic bag of
marijuana, he was placed in a disciplinary
segregation unit. This "discipline" apparently
had little effect on Taliaferro because, while in
the segregation unit, he threw a cup of urine on
a prison guard--striking him in the face, chest,
and arm.
On July 21, 1999, Taliaferro pled guilty to a
one-count indictment charging him with possession
of marijuana by an inmate. In the plea agreement,
Taliaferro also stipulated to assaulting a
federal officer, in violation of 18 U.S.C. sec.
111(a)(1), by throwing a cup of urine into the
guard’s face, and upon his chest and arm. Under
U.S.S.G. sec. 2A2.4, the assault carries a base
offense level of six and, if the "conduct
involved physical contact," a three-level upward
adjustment./2 As part of the plea agreement, the
government agreed to recommend that Taliaferro
receive a reduction in offense level for
acceptance of responsibility. However, the plea
agreement also recited that "the United States
[was] free to withdraw this recommendation if the
defendant . . . engages in any conduct between
the date of this plea agreement and the
sentencing hearing which is inconsistent with
acceptance of responsibility."
On August 10, 1999, before his sentencing
hearing, Taliaferro filed a two million dollar
"Claim for Damage, Injury or Death" against the
Bureau of Prisons alleging that, although he was
guilty of possessing marijuana, he had received
the drugs from another inmate rather than from
Gary. The prison claim form that Taliaferro filed
warned him that he could be subjected to civil
and criminal penalties for filing a false claim.
In the complaint, Taliaferro alleged that he had
wrongfully been denied visits with Gary since the
marijuana incident and that this had caused him
mental and emotional injury. But, just two weeks
after he filed his tort claim, Taliaferro
admitted to his probation officer that it was his
girlfriend, Gary, who had given him the
marijuana.
Based on the belief that Taliaferro’s filing of
a two million dollar tort claim in which he
denied receiving the marijuana from Gary was
inconsistent with the proposition that he
accepted responsibility for his conduct, the
government withdrew its recommendation that
Taliaferro receive a reduction for acceptance of
responsibility.
At sentencing, the government objected to the
recommendation in the Presentence Investigation
Report (PSR) that Taliaferro receive a downward
adjustment for acceptance of responsibility./3
The judge agreed that Taliaferro was not entitled
to a downward adjustment, stating that
Taliaferro’s claim against the Bureau of Prisons
amounted to a falsehood that demonstrated a lack
of acceptance of responsibility. The sentencing
judge went on to state that even if the
government had not withdrawn its recommendation
he would have denied the reduction for acceptance
of responsibility on his own. The trial judge
also rejected Taliaferro’s argument that throwing
a cup of urine did not amount to "physical
contact" with the guard and adjusted Taliaferro’s
base offense level by three levels under section
2A2.4(b)(1), stating that throwing a cup of urine
"certainly must be considered an act of physical
contact."
On appeal, Taliaferro argues that he was
entitled to a downward adjustment for acceptance
of responsibility because, even though he filed
a false claim and lied to the court, he
demonstrated his acceptance by pleading guilty,
admitting the facts underlying his drug offense
at sentencing, and withdrawing his tort claim.
That is, according to Taliaferro, the fact that
he was honest at the time of sentencing should
provide sufficient grounds for reducing his
offense level for acceptance of responsibility.
Contrary to Taliaferro’s assertions, acceptance
of responsibility requires much more than mere
honesty at his sentencing hearing.
This court reviews a district court’s finding
for clear error as to whether a defendant has
accepted responsibility for his criminal
activity. See United States v. Sierra, 188 F.3d
798, 804 (7th Cir. 1999). The mere fact that a
defendant enters into a plea agreement is
insufficient under the guidelines and caselaw to
entitle him to a downward adjustment; rather, the
defendant has the burden of demonstrating that he
has actually accepted responsibility for his
actions. See United States v. McIntosh, 198 F.3d
995, 999 (7th Cir. 2000). We have long held that
a defendant does not demonstrate sufficient
acceptance of responsibility when he, as
Taliaferro did in this case, frivolously contests
or falsely denies relevant conduct. See United
States v. Larkin, 171 F.3d 556, 558 (7th Cir.),
cert. denied, 120 S. Ct. 198 (1999).
Based on the record, we are convinced that the
district court’s conclusion that Taliaferro
should not receive a reduction for acceptance of
responsibility was not clearly erroneous. First,
Taliaferro filed a fraudulent two-million dollar
"Claim for Damage, Injury or Death" knowing that
the government would withdraw its recommendation
that he receive a downward departure for
acceptance of responsibility. And, as we have
long held, lying, as the filing of the false tort
claim must be considered, is, in and of itself,
sufficient grounds for denying acceptance points.
See United States v. Gage, 183 F.3d 711, 717 (7th
Cir. 1999) (false representation at plea
hearing); United States v. Colbert, 172 F.3d 594,
597 (8th Cir. 1999) (defendant sent letter to
district court partly denying stipulated
conduct); United States v. Dillard, 43 F.3d 299,
306 (7th Cir. 1994) (submission of false
statement to probation officer). Furthermore, we
note that the fact that Taliaferro waited until
sentencing to inform the judge that his tort
claim was false suggests that he was motivated
not by a true acceptance of responsibility but
rather by the thought that he might get a lower
sentence if he withdrew his tort claim; a basis
which does not entitle a defendant to a reduction
for acceptance of responsibility. See United
States v. Purchess, 107 F.3d 1261, 1269 (7th Cir.
1997). Consequently, we agree with the trial
court’s ruling that Taliaferro was not entitled
to a reduction for acceptance of responsibility.
Taliaferro also challenges the three-level
upward adjustment he received for physical
contact with the prison guard. On appeal,
Taliaferro does not dispute that his actions
constituted an assault under 18 U.S.C. sec.
111(a)(1), but argues that he should not be
subjected to the upward adjustment under section
2A2.4(b)(1) for conduct that involved physical
contact; an adjustment that is analogous to
battery. In so arguing, Taliaferro notes that the
guidelines fail to define "physical contact" and
claims that the provision only applies if there
is "actual physical contact between the defendant
and the complaining witness." Taliaferro asserts
that throwing a liquid on someone is an
"intermediate action" that does not involve
actual physical contact and therefore he should
not receive the upward adjustment./4
A district court’s interpretation of the
guidelines is reviewed de novo. See United States
v. Turchen, 187 F.3d 735, 738 (7th Cir. 1999). In
the absence of a definition of a term in the
guidelines, courts are to look to the common-law
definition or the plain meaning of the term. See
id. at 739; United States v. Haynes, 179 F.3d
1045, 1047 (7th Cir.), cert. denied, 120 S. Ct.
386 (1999).
We are of the opinion that the throwing of an
offensive liquid such as urine upon another
person does amount to "physical contact" for the
purposes of section 2A2.4(b)(1). Although no
federal court has defined "physical contact" as
used in subsection (b)(1), the meaning can be
derived by examining at the law of battery. While
battery is defined as "intentional and wrongful
physical contact with a person," see Black’s Law
Dictionary 152 (6th ed. 1990), it is clear that the
contact between the aggressor and the victim need
not be direct, but rather can result from the
"indirect application of force . . . by some
substance or agency placed in motion by" the
aggressor. See 6A C.J.S. Assault and Battery sec.
70 at 440-42 (1975). For example, spitting on
another person has long been held to constitute
a battery. See United States v. Masel, 563 F.2d
322, 324 (7th Cir. 1977) ("It is ancient doctrine
that intentional spitting upon another person is
battery."); see also United States v. Frizzi, 491
F.2d 1231, 1232 (1st Cir. 1974); Missouri v.
Mack, 2000 WL 154330 (Mo. Ct. App., Feb. 15,
2000); People v. Peck, 633 N.E.2d 222, 224 (Ill.
App. Ct. 1994). Furthermore, at least two state
courts have also held that throwing urine on
someone constitutes the physical contact
necessary for a battery. See People v. Walker,
683 N.E.2d 1296, 1301 (Ill. App. Ct. 1997); State
v. Matthews, 633 P.2d 1039, 1042 (Ariz. Ct. App.
1981). Accordingly, we agree with the trial judge
that the defendant’s action, throwing a cup of
urine on a prison guard, amounts to "physical
contact" with the prison guard, and therefore the
three-level upward adjustment was warranted.
Taliaferro’s sentence is
AFFIRMED.
/1 A dry cell is a unit that has a commode with no
running water so that bodily waste material can
be captured for inspection. Prison employees
observe the prisoner in the dry cell until the
contraband is recovered.
/2 In choosing between the guideline calculations
for marijuana or assault, the district court, as
required by U.S.S.G. sec. 1B1.2(a), used the
section for assault because, after the upward
adjustment for "physical contact" was applied,
the assault stipulation in the plea agreement was
"a more serious offense" than the offense of
conviction; that is, the assault had a higher
offense level than the marijuana charge. See
U.S.S.G. sec.sec. 1B1.2(a), 2A2.4; see also
U.S.S.G. sec. 1B1.2, Application Note 1 ("Where
a stipulation that is set forth in a written plea
agreement or made between the parties on the
record during a plea proceeding specifically
establishes facts that prove a more serious
offense or offenses than the offense or offenses
of conviction, the court is to apply the
guideline most applicable to the more serious
offense or offenses established.").
/3 The PSR was prepared before Taliaferro filed his
fraudulent tort claim; thus, the probation
officer was in no position to consider this fact
at the time he recommended that the defendant
receive a downward adjustment.
/4 We wonder if Taliaferro would have made the same
"intermediate action" argument (that is, he is
not responsible for physical contact with the
prison guard because he was not touching the
urine when it struck the guard) if he had shot
the prison guard with a gun or thrown a rock or
other solid object at the guard. Given that his
claim is without support in the law, we only use
these examples as illustrations as to the
frivolous nature of his claim.