DocketNumber： 91-2303
Filed Date： 12/31/1992
Status： Precedential
Modified Date： 3/3/2016
December 31, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
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No. 91-2303
No. 91-2303
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
MICHAEL J. NEWMAN,
MICHAEL J. NEWMAN,
Defendant, Appellant.
Defendant, Appellant.
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____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Before
Cyr, Circuit Judge,
Cyr, Circuit Judge,
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Roney,* Senior Circuit Judge,
Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
and Pieras,** District Judge.
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____________________
____________________
John A. MacFadyen for appellant.
John A. MacFadyen for appellant.
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Craig N. Moore, Assistant United States Attorney, with whom
Craig N. Moore, Assistant United States Attorney, with whom
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Lincoln C. Almond, United States Attorney, was on brief for appellee.
Lincoln C. Almond, United States Attorney, was on brief for appellee.
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____________________
____________________
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*Of the Eleventh Circuit, sitting by designation.
*Of the Eleventh Circuit, sitting by designation.
**Of the District of Puerto Rico, sitting by designation.
**Of the District of Puerto Rico, sitting by designation.
CYR, Circuit Judge. Michael J. Newman appeals his
CYR, Circuit Judge.
_____________
conviction and sentence on one count of depriving a pretrial
detainee of his civil rights under color of law in violation of
18 U.S.C. 242. We affirm.
I
I
BACKGROUND
BACKGROUND
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Viewed in the light most favorable to the verdict, see
___
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.
_____________ _______________
1991), the evidence presented at trial warranted the following
jury findings. On October 6, 1990, Daniel Peterson was arrested
in Providence, Rhode Island, for drinking in public. A record
check revealed outstanding warrants against Peterson. Appellant
Michael J. Newman was the officer in charge of the cell block
where Peterson was detained.
After being placed in a cell, Peterson began to yell
and scream, then picked up the porcelain toilet in the cell and
hurled it through the bars. Appellant Newman and another officer
removed Peterson to a nearby cell. Peterson put up mild resis-
tance and his wrists were handcuffed to the cell bars. Shortly
after the officers left, Peterson resumed his yelling and scream-
ing, which prompted appellant Newman to return to the cell.
While still handcuffed to the cell bars, Peterson was beaten and
kicked in the stomach and head by appellant. Peterson sustained
injuries to his face, nose, eyes, and inner ear, and experienced
difficulty in breathing. He remained in a local hospital for a
week, where he experienced dizziness, severe headaches, and other
physical pain. Extensive medical tests proved negative.
Newman was indicted, tried, and convicted for interfer-
ing with Peterson's civil rights under color of law, and sen-
tenced to sixty months in prison and a two-year term of super-
vised release.
II
II
DISCUSSION
DISCUSSION
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Appellant presents four claims. First, he claims that
the court committed error by excluding certain "habit" evidence
proffered under Federal Rule of Evidence 406. Second, he con-
tends that he was entitled to a new trial due to juror inatten-
tiveness. Third, he disputes the finding that the alleged
assault involved "serious bodily injury." Finally, Newman
attempts for the first time to assert that the sentence imposed
pursuant to U.S.S.G. 2A2.2(b) (3)(B) and 2H1.4(a)(2) had the
impermissible effect of "double counting" any "serious bodily
injury" inflicted on Peterson.
A. Evidence Rule 406
A. Evidence Rule 406
_________________
At trial, the defense attempted to introduce Providence
Police Sergeant MacDonald's testimony that he had seen between 75
and 100 prisoners handcuffed to the cell bars, but never to the
first bar. MacDonald's testimony was offered to support Newman's
testimony that he had handcuffed Peterson to the third bar of the
4
cell and not to the first bar as Peterson testified. The issue
became material in light of the trial testimony of Daniel Greene,
a detainee in the same cell block, who claimed to have seen
Peterson's cuffed hands protruding through the bars during the
assault. The evidence demonstrated that Greene could have seen
Peterson's hands only if they were cuffed to the first bar. The
district court sustained the government's objection to the
proffered testimony.
Under Rule 406, competent evidence of a person's
"habit" may be admissible to prove conduct in conformity with the
habit on a particular occasion. Reyes v. Missouri P. R. Co., 589
_____ __________________
F.2d 791, 794 (5th Cir. 1979); see also John H. Strong, McCormick
___ ____ _________
on Evidence 195 (4th ed. 1992); 1A John A. Wigmore, Evidence
____________ ________
95 (Tillers rev. 1983).1 The party offering the evidence must
establish the habitual nature of the alleged practice. Weil v.
____
Seltzer, 873 F.2d 1453, 1461 (D.C. Cir. 1989). As with other
_______
exclusionary rulings, the party challenging an exclusion of habit
evidence under Rule 406 bears the heavy burden of demonstrating
on appeal that the trial court abused its discretion. McWhorter
_________
v. Birmingham, 906 F.2d 674, 675 (11th Cir. 1990); Rosenburg v.
__________ _________
____________________
1Evidence Rule 406 states:
Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity
with the habit or routine practice.
Fed. R. Evid. 406.
5
Lincoln American Life Ins. Co., 883 F.2d 1328, 1337 (7th Cir.
_______________________________
1989); Weil, 873 F.2d at 1460; United States v. Troutman, 814
____ _____________ ________
F.2d 1428, 1454 (10th Cir. 1987); see also United States v.
___ ____ ______________
McCarthy, 961 F.2d 972, 977 (1st Cir. 1992) (we review rulings on
________
the admissibility of evidence for "abuse of discretion").
Habit evidence under Rule 406 may be probative of "'the
regular practice of meeting a particular kind of situation with a
specific type of conduct, such as the habit of going down a
particular stairway two stairs at a time, or of giving the hand-
signal for a left turn . . . .'" Fed. R. Evid. 406, advisory
committee's note (quoting McCormick, Evidence 195 at 826);
________
Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th
_______ ___________________________
Cir. 1985). Although there are no "precise standards" for
determining whether a behavior pattern has matured into a habit,
two factors are considered controlling as a rule: "adequacy of
sampling and uniformity of response." Fed. R. Evid. 406, adviso-
ry committee's notes; McWhorter, 906 F.2d at 679; G.M. Brod & Co.
_________ _______________
v. U.S. Home Corp., 759 F.2d 1526, 1533 (11th Cir. 1985); Loug-
_______________ _____
han, 749 F.2d at 1529; Weil, 873 F.2d at 1460; Reyes, 589 F.2d at
___ ____ _____
795. These factors focus on whether the behavior at issue
"occurred with sufficient regularity making it more probable than
not that it would be carried out in every instance or in most
instances." Weil, 873 F.2d at 1460. The requisite regularity is
____
tested by the "'ratio of reaction to situations.'" Wilson v.
______
Volkswagen of America, Inc., 561 F.2d 494, 512 (4th Cir. 1977)
____________________________
(quoting Lewan, Rationale of Habit Evidence, 16 Syracuse L. Rev.
___________________________
6
39, 51 (1964)), cert. denied, 434 U.S. 1020 (1978); Weil, 873
____ ______ ____
F.2d at 1461; Simplex, Inc. v. Diversified Energy Systems, Inc.,
_____________ ________________________________
847 F.2d 1290, 1294 (7th Cir. 1988). It is essential, therefore,
that the regularity of the conduct alleged to be habitual rest on
an analysis of instances "'numerous enough to [support] an
inference of systematic conduct' and to establish 'one's regular
response to a repeated specific situation.'" Wilson, 561 F.2d at
______
511 (quoting Fed. R. Evid. 406, advisory committee's notes).
Appellant's proffer failed to demonstrate the admis-
sibility of the MacDonald testimony under Rule 406. Appellant
provided no foundation for assessing the adequacy of the sampling
to which MacDonald would testify. There was no evidence even
approximating the number of times prisoners were handcuffed to
the cell bars.2 Absent some evidence of the number of instances
in which the handcuffing practice took place, we cannot conclude
that the district court abused its discretion. An officer's
observation of 75 to 100 such instances did not require the
_______
conclusion that the putative practice was followed with the
necessary regularity. See Brod, 759 F.2d at 1533 (testimony
___ ____
concerning specific instances within experience of witness, when
considered in light of thousands of unobserved similar instances,
"falls far short of the adequacy of sampling and uniformity of
response which are the controlling considerations governing
admissibility").
____________________
2The district court nonetheless allowed appellant to testify
that he and other officers "always cuffed prisoners" to the third
bar.
7
Other considerations reinforce the conclusion that the
district court did not abuse its discretion. First, Sergeant
MacDonald testified that there was no "rule or practice that's
followed" about where to handcuff prisoners but that "[t]he
officers involved . . . at the time would decide where to hand-
cuff them and how to do it." Second, we are aware of no case,
and appellant cites none, in which the routine practice of an
organization, without more, has been considered probative of the
conduct of a particular individual within the organization. See
___
United States v. Angelilli, 660 F.2d 23, 41 (2d Cir. 1981), cert.
_____________ _________ ____
denied, 455 U.S. 910, cert. denied, 455 U.S. 945 (1982) (ques-
______ ____ ______
tioning whether it is proper on the basis of the "ambiguous
structure of Rule 406" to infer individual behavior based on
evidence of routine practice of the organization). The exclus-
ionary ruling under Evidence Rule 406 did not constitute error.
B. Juror Inattentiveness
B. Juror Inattentiveness
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Appellant contends that the district court (1) failed
to conduct adequate inquiry into allegations that one or more
jurors slept during portions of the trial, and (2) committed
reversible error by denying a new trial based on the alleged
juror inattentiveness.
At one point during trial, on July 10, the presiding
judge observed a juror who appeared as though he may have been
8
asleep.3 Immediately, the judge advised all counsel and offered
to replace the juror with an alternate. Defense counsel declined
the offer. The judge promptly and firmly cautioned all members
of the jury on the importance of devoting full attention to the
evidence. After trial, three putative eyewitnesses submitted
letters recounting their observations of one or more jurors who
appeared to be sleeping during parts of the trial.4
These letters formed the basis for appellant's motion
for new trial. The district court stated that it had "noted the
incidents in question and promptly brought it to the attention of
____________________
3The presiding judge described the related events as fol-
lows:
[D]uring the trial I called counsel to the bench; as I
recall, I told them that I had observed a juror with
his eyes closed and that the juror may have been sleep-
ing. I did not say the juror was sleeping, nor can it
be said that he was. I did not see any jurors' head
fall 'to the side' with his chin 'on his chest' as
described by one of the letter writers. Both the
prosecutor and the defense counsel acknowledged they
too had noticed what I observed. I offered to excuse
the juror and have him replaced with an alternate. In
no uncertain terms, defense counsel objected.
4Each of the three letters describes one juror who appeared
to be asleep. Two of the letters refer to July 10 and appear to
refer to the same juror and the same incident. According to one
letter, a juror in the back row slept for ten minutes during the
testimony of Dr. Welch. The second letter refers to a juror in
the back row who rested his head on the wall and appeared to have
his eyes closed for about ten minutes, but the letter does not
indicate what was transpiring in the trial at the time. The
third letter appears to refer to another juror at another time.
It describes a juror in the front row who slept through most of
the testimony of Dr. Green and when he awoke asked another juror:
"What did he say?" The letter states that this juror slept
during the testimony of a police officer and on and off during
the testimony of all three doctors. Although the letter does not
indicate the date on which these observations were made, the
witnesses to which it refers testified on July 9 and July 10.
9
counsel in a[n] [unrecorded] bench conference," but that defense
counsel rejected the court's offer to replace the juror.5 The
court noted further that there was no firm evidence that the
juror had been asleep. The court offered to submit to an inter-
rogation on the record by defense counsel as to its recollection
of the incidents, which was confirmed by the prosecutor. The
proposal was not endorsed by defense counsel. Defense counsel
requested neither further investigation, nor an evidentiary
hearing, into the allegations contained in the letters submitted
after trial. The district court determined that any inattentive-
ness which may have occurred was limited to "an isolated moment"
in a week-long trial, thus implicitly determining that there had
been no prejudice to appellant. The motion for new trial was
denied.
Appellant belatedly challenges the adequacy of the
district court's investigation into the letter allegations of
juror inattentiveness. The gravamen of the unpreserved claim is
that the three letters allege juror inattentiveness on more than
one day and apparently by more than one juror, whereas the
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district court merely addressed the inattentiveness of one juror,
on July 10. According to appellant, the failure to investigate
these letter allegations rendered it impossible to determine
whether he was deprived of a fair trial.
____________________
5The district court noted in its memorandum order that
defense counsel vigorously opposed replacement of the inattentive
juror, as a denial of defendant's "right to have his case heard
by a juror of [his] choice."
10
The "district court has broad discretion to determine
the type of investigation which must be mounted[]" in response to
an allegation of juror misconduct. United States v. Boylan, 898
_____________ ______
F.2d 230, 258 (1st Cir.), cert. denied, 111 S. Ct. 139 (1990).
____ ______
An evidentiary hearing is not invariably required. Id. (citing
___
cases). Rather, it is the responsibility of the trial court "to
fashion a responsible procedure for ascertaining whether miscon-
duct actually occurred and if so, whether it was prejudicial."
Id.; United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir.
___ _____________ _________
1989). A determination that no juror misconduct occurred will be
overturned only on a showing that the trial court committed a
"patent abuse of discretion." Id. Similarly, the denial of a
___
motion for new trial is reviewed for abuse of discretion. United
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States v. Soto-Alvarez, 958 F.2d 473, 475 (1st Cir.), cert.
______ ____________ _____
denied, 113 S. Ct. 221 (1992); United States v. Dockray, 943 F.2d
______ _____________ _______
152, 157 (1st Cir. 1991).
We find no abuse of discretion in the district court's
handling of the allegations of juror inattentiveness, see Boylan,
___
898 F.2d at 258 ("district court has discretion to determine the
type of investigation which must be mounted"), or in its denial
of the motion for new trial. First, defense counsel neither
requested an evidentiary hearing nor an investigation into the
vague and conclusory allegations contained in the three letters.
Indeed, the presiding judge viewed the belated allegations as "a
disingenuous attempt to set aside the jury verdict." After
considering the allegations, the court concluded that the "inc-
11
idents" in question had been dealt with adequately by the earlier
offer, at the unrecorded bench conference on July 10, to replace
an inattentive juror, and by the instruction reminding all jurors
of their duty to remain attentive.
Insofar as the court correctly treated the incidents
collectively recounted in the three letters to have been consid-
ered and dealt with at the unrecorded bench conference on Ju-
ly 10, appellant was entitled to no further relief. Notwith-
standing the court's invitation, appellant chose not to challenge
the judge's description as to what transpired at the unrecorded
July 10 bench conference,6 and opposed replacement of the inat-
tentive juror. Appellant will not now be heard for the first
time to challenge the district court's determination that the
entire matter was dealt with during the unrecorded July 10 bench
conference. See United States v. Kimberlin, 805 F.2d 210, 244
___ _____________ _________
(7th Cir. 1986), cert. denied, 483 U.S. 1023 (1987) (no error
____ ______
where court brought to attention of counsel that a juror appeared
to be sleeping, but neither side requested juror replacement).
On the other hand, insofar as appellant may have believed that
the three letters collectively recounted one or more other
____________________
6In denying the motion for new trial, the district court
noted that "[t]he absence of a record forces me to note my
personal recollection, which varies from the aforementioned
letters but is corroborated by the prosecutor. I feel it is
unfair to have my unrecorded statement go to the appellate court
without affording counsel an opportunity to question it. The
defendant's lawyer is very experienced and sophisticated and, I
am sure, not awed by any court. If he wishes, I am perfectly
willing to have him interrogate me on the record, in chambers,
and attach a transcript of our meeting as part of this Memoran-
dum."
12
instances of juror inattentiveness not dealt with at the unre-
corded bench conference, he not only failed to avail himself of
the opportunity to test the contrary recollection recorded by the
court but requested neither further investigation nor an eviden-
tiary hearing, insisting instead upon a new trial as the only
acceptable remedy. Cf. United States v. Schnabel, 939 F.2d 197,
___ _____________ ________
201 (4th Cir. 1991) (no prejudicial error in court's refusal to
grant supplementary voir dire where defendant declined court's
offer to excuse juror.)
The district court did not abuse its discretion in
concluding that no prejudicial juror misconduct occurred.
C. U.S.S.G. 2H1.4(a)(2)
C. U.S.S.G. 2H1.4(a)(2)
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1. "Serious Bodily Injury"
1. "Serious Bodily Injury"
_____________________
Section 2H1.4(a)(2) provides that the base offense
level for interference with civil rights under color of law is to
be set six levels above the base offense level for the underlying
offense. At sentencing, the district court determined that the
underlying offense was an aggravated assault, as it involved
"serious bodily injury." See U.S.S.G. 2A2.2, comment. (n.1).
___
Thus, the base offense level was set at 21, then adjusted upward
four more levels, pursuant to U.S.S.G. 2A2.2(b)(3)(B), because
the victim suffered "serious bodily injury," which yielded a
total offense level of 25.
At the outset, appellant challenges the district court
finding that Peterson suffered "serious bodily injury," which he
claims led the court into reversible error both in its determina-
13
tion that the underlying offense constituted an aggravated
assault and in its further four-level upward adjustment for
causing "serious bodily injury."
First, we must determine the appropriate standard of
review. The parties agree that whether the assault involved
"serious bodily injury" presents a mixed question of law and
fact. In light of their concession, in the present case we
review for "clear error." Cf., e.g., United States v. Pilgrim
___ ____ ______________ _______
Market Corp., 944 F.2d 14, 17 (1st Cir. 1991) (concluding that 18
____________
U.S.C. 3742(e) and First Circuit precedent require "clear
error" review of the mixed question of law and fact relating to
the grouping of counts, even though other circuits would conduct
de novo review).7 Under a "clear error" standard of review,
__ ____
____________________
7"Plain error" may even be the appropriate standard of
review in the present case. Although the issue of "serious
bodily injury" was contested in the district court, appellant
inconsistently conceded that "the base level of 21 obviously is
appropriate." A base offense level of 21 would be appropriate in
the present case only if the assault was "aggravated," rather
than "minor." Moreover, since there is no contention that the
offense involved either a dangerous weapon or intent to commit
another felony, it could be determined an aggravated assault only
if it involved "serious bodily injury." Compare U.S.S.G. 2A-
_______
2.2, comment. (n.1) ("'Aggravated assault' means a felonious
assault that involved (a) a dangerous weapon with intent to do
bodily harm . . ., or (b) serious bodily injury, or (c) an intent
to commit another felony.") with U.S.S.G. 2A2.3, comment. (n.1)
____
("'Minor assault' means a . . . felonious assault not covered by
2A2.2"). Since the adjusted base offense level of 21 was not
challenged below, ordinarily we would review the finding of
"serious bodily injury" only for "plain error" insofar as it
served as a predicate for the determination that the underlying
offense constituted an "aggravated assault." See United States
___ _____________
v. Bello-Perez, No. 91-2232, slip op. at 19 (1st Cir. Sept. 29,
___________
1992) (application of guideline to specific facts reviewed only
for "plain error" unless raised below); United States v. Morales-
_____________ ________
Diaz, 925 F.2d 535, 540 (1st Cir. 1991) (same). The issue is of
____
no practical consequence in the present case, however, as we
14
"where more than one reasonable inference may be drawn from
undisputed facts, 'the sentencing court's choice among support-
able alternatives cannot be clearly erroneous.'" United States
_____________
v. Preakos, 907 F.2d 7, 8 (1st Cir. 1990) (quoting United States
_______ _____________
v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)); see also United
____ ___ ____ ______
States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992).
______ __________
The Sentencing Guidelines define "serious bodily
injury" as "injury involving extreme physical pain or the impair-
ment of a function of a bodily member, organ, or mental faculty;
or requiring medical intervention such as surgery, hospitaliza-
tion, or physical rehabilitation." U.S.S.G. 1B1.1(j). The
sentencing court supportably found that Peterson sustained injury
to his inner ear. The ear is "the organ of hearing and equilib-
rium," which includes "a fluid-filled internal ear that main-
tains balance and that conducts the tympanic vibrations to the
auditory nerve, which transmits them as impulses to the brain."
Random House, Unabridged (2d ed. 1987), at 613. Medical testimo-
____________
ny was presented that upon entering the hospital Peterson com-
plained of dizziness and tinnitus. While tests were "unreveal-
ing," the examining neurosurgeon testified that it was "not
unusual" for inner ear damage to be evidenced solely by the
patient's "subjective complaints." Moreover, Peterson was
hospitalized for six days as a result of the beating administered
to his head, which caused severe headaches, facial bruising and
hemorrhaging around the eyes and under the scalp, in addition to
____________________
discern neither "clear" nor "plain" error.
15
the inner ear injury. See U.S.S.G. 1B1.1(j) (defining "serious
___
bodily injury" as "injury involving extreme physical pain" or
__
"impairment of a bodily . . . organ . . .," or "requiring . . .
__
hospitalization . . . .").
We discern no clear error in the finding that the
assault caused "serious bodily injury."
2. "Double Counting"
2. "Double Counting"
_______________
Finally, Newman claims for the first time that the
district court engaged in impermissible "double counting," as the
four level increase in the base offense level, see U.S.S.G.
___
2A2.2(b)(3)(B), was predicated on the same finding of "serious
bodily injury" that prompted the fifteen level adjustment in the
base offense level for the underlying offense, see id.
___ ___
2H1.4(a)(2), "aggravated assault," see id. 2A2.2(a).
___ ___
As the "double counting" claim was not raised below, we
consider whether it may be raised on appeal. Although pure
issues of law may be raised for the first time on appeal in
"exceptional cases," normally we will entertain an unpreserved
legal claim only if the failure to do so would result in a "rank
miscarriage of justice." See United States v. La Guardia, 902
___ _____________ __________
F.2d 1010, 1012-13 (1st Cir. 1990) (listing factors); United
______
States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982) (same).
______ ________
The district court sentenced defendant to 60 months in
prison. Were it not for the challenged four level increase in
appellant's base offense level under U.S.S.G. 2A2.2(b)(3)(B),
which yielded a 57-to-71 month GSR, the total adjusted offense
16
level would have been 21, yielding a 37-to-46 month GSR. Assum-
ing the challenged four level increase was impermissible, yet not
reviewable on appeal, Newman would be compelled to serve no less
than fourteen months longer than the maximum sentence allowable
under the appropriate GSR. We are persuaded, therefore, that the
requisite showing has been made for discretionary review of
appellant's unpreserved claim.
After supportably finding that the assault caused
"serious bodily injury," the sentencing court calculated appel-
lant's base offense level in exact accordance with the plain
language of the applicable sentencing guidelines. Pursuant to
U.S.S.G. 2H1.4(a)(2), the court set the base offense level at
21 six levels above the base offense level of 15 for the
underlying offense of "aggravated assault," see U.S.S.G. 2A2.2
___
(b) ("a felonious assault that involved . . . (b) serious bodily
injury") then increased it four levels, pursuant to U.S.S.G.
2A2.2(b)(3)(B), because the victim sustained "serious bodily
injury." Thus, the first hurdle appellant must overcome is that
the applicable sentencing guidelines expressly mandate the
"double counting" challenged on appeal.8
____________________
8Although no appellate court has yet considered this par-
ticular "double counting" issue, there is a divergence between
the two courts of appeals which have addressed the closely
analogous question whether a defendant's base offense level can
be increased pursuant to U.S.S.G. 2A2.2(b)(2)(a) for using a
dangerous weapon, notwithstanding that the same factor formed the
_________ ______
predicate for finding the underlying offense an aggravated
assault, see U.S.S.G. 2A2.2(a), comment. (n.1) ("'aggravated
___
assault' means a felonious assault that involved (a) a dangerous
weapon with intent to do bodily harm . . ."). See United States
___ _____________
v. Williams, 954 F.2d 204, 206-08 (4th Cir. 1992) ("double
________
17
As with statutory language, see, e.g., North Dakota v.
___ ____ ____________
United States, 460 U.S. 300, 312 (1983); Benoni v. Boston & Maine
_____________ ______ ______________
Corp., 828 F.2d 52, 57 (1st Cir. 1987), we think the plain and
_____
unambiguous language of a sentencing guideline affords the best
recourse for its proper interpretation, cf. United States v.
___ _____________
Williams, 954 F.2d 204, 206 (4th Cir. 1992) ("double counting"
________
required since Sentencing Guidelines "must be applied as writ-
ten"); United States v. Florentino, 922 F.2d 1443, 1446 (10th
______________ __________
Cir. 1990) ("double counting" permissible where "clear and
unambiguous" guideline language indicates Commission so intended)
(applying 2L1.1 adjustment for prior conviction already re-
flected in criminal history category). Furthermore, the district
court's application of U.S.S.G. 2A2.2(b)(3)(B) accords with the
apparent intent of the Sentencing Commission as evidenced not
only by the plain and unambiguous guideline language but by other
intrinsic considerations as well. For example, the Commission's
awareness of the sentencing excesses which flow from impermissi-
___________
ble "double counting" is plainly reflected in other guideline
___
application notes expressly forbidding it. See, e.g., U.S.S.G.
___ ____
3A1.1 comment. (n.2) (no "victim related" adjustment when
offense guideline specifically incorporates same 3A1.1 factor);
_______
3A1.2 comment. (n.3) (same); 3A1.3 comment. (n.2) (same); cf.
___
3D1.2 comment. (n.5) (application note governing grouping of
closely related counts "prevents double counting of offense
_______
____________________
counting" required); but see United States v. Hudson, 972 F.2d
___ ___ _____________ ______
504, 506-07 (2d Cir. 1992) (expressly disagreeing with Williams).
________
18
behavior.") (emphasis added). "Under the principle of expressio
_________
unius est exclusio alterius, the enumeration of specific exclu-
_____ ___ ________ ________
sions from the operation of a statute is an indication that the
statute should apply to all cases not specifically excluded."
United States v. Rocha, 916 F.2d 219, 243 (5th Cir. 1990), cert.
_____________ _____ ____
denied, 111 S. Ct. 2057 (1991) (citing United States v. Vickers,
______ _____________ _______
891 F.2d 86, 88 (5th Cir. 1989) ("double counting" for ransom
demand pursuant to 2A4.1(b)(1) and for extortion pursuant to
2A4.1(b)(5) not improper)); United States v. Curtis, 934 F.2d
_____________ ______
553, 555 (4th Cir. 1991) ("double counting" for more than minimal
planning under 2B1.1(b)(4) and as organizer and manager under
3B1.1(c) not improper); see also United States v. Goolsby, 908
___ ____ _____________ _______
F.2d 861, 863 (11th Cir. 1990) (refusing "to fashion an exception
[to "double counting"] since the Commission has demonstrated its
ability to do so in those areas it has deemed an exception to be
appropriate") (crime of escape considered under both 4A1.1(d)
and 2P1.1(a)(1)). Cf. United States v. McInnis, 976 F.2d 1226,
___ _____________ _______
1233-35 (9th Cir. 1992) (applying 2H1.3(a)(2),(3) where "under-
lying offense" was deemed an aggravated assault per 2A2.2(b)-
(3)(B)) ("double counting" not addressed); but cf. United States
___ ___ _____________
v. Hudson, 972 F.2d 504, 507 (2d Cir. 1992) (it is not the law in
______
the Second Circuit that "double counting is always permissible,
except when explicitly forbidden by the Guidelines") (citing
cases); United States v. Romano, 970 F.2d 164, 167 (6th Cir.
_____________ ______
1992) (defendant should not be penalized for same conduct under
two different guideline provisions "whether or not the Guidelines
19
expressly prohibit" doing so); United States v. Werlinger, 894
_____________ _________
F.2d 1015, 1017 (8th Cir. 1990) (rule of lenity requires that
Guidelines not be readily construed to multiply punishment of
conduct already punished through the application of another
guideline provision); United States v. Adeleke, 968 F.2d 1159,
_____________ _______
1161 (11th Cir. 1992) ("double counting" proper "if the Sentenc-
ing Commission intended the result, and if the result is permis-
___
sible because 'each section concerns conceptually separate
notions relating to sentencing'") (quoting United States v.
______________
Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991)) (emphasis added).
_______
Closer to home, U.S.S.G. 2H1.4 itself reflects that
it was drafted with the excesses of impermissible "double count-
ing" clearly in mind. In prescribing that the base offense level
for interfering with civil rights under color of law is to be the
greater of level 10, or 6 levels above that of the underlying
offense (here, aggravated assault), the guideline application
note to U.S.S.G. 2H1.4 first directs the sentencing court to
the section 2H1.1 commentary, U.S.S.G. 2H1.4, comment. (n.1),
then mandates: "Do not apply the adjustment from 3B1.3 (Abuse
of Position of Trust or Use of Special Skill)," id. 2H1.4,
___
comment. (n.2), "because the base offense level in 2H1.4(a)
reflects that the abuse of actual or purported legal authority is
inherent in the offense," id. 2H1.4, comment. (backg'd.)
________ ___
(emphasis added). By way of contrast, section 2H1.4 gives no
indication whatever that the offense level should not be in-
creased where the person who is deprived of his civil rights
20
under color of law sustains bodily injury, as in the present
case. We believe the reason is clear: bodily injury is not an
___
inherent characteristic of the offense of interfering with civil
rights under color of law.
Moreover, the immediately preceding guideline, U.S.S.G.
2H1.3 (Use of Force or Threat of Force to Deny Benefits or
Rights in Furtherance of Discrimination: Damage to Religious
Real Property), represents a deliberate Commission determination
to increase the base offense level for a civil rights violation
if the defendant inflicts bodily injury on the victim. Section
__
2H1.3 prescribes alternative base offense level increases depend-
ing on whether the victim sustained injury. Id. 2H1.3(a)-
___
(1),(2) (increase by 10 if no injury occurred; by 15 if injury
occurred). The section 2H1.3 commentary, appearing a scant four
lines above section 2H1.4 (Interference with Civil Rights Under
Color of Law), explains: "The base offense level in 2H1.3(a)
___ ____ _______ _____ __ _ ________
reflects that the threat or use of force is inherent in the
________ ____ ___ ______ __ ___ __ _____ __ ________ __ ___
offense." U.S.S.G. 2H1.3 comment. (backg'd.) (emphasis added);
_______
to which we would add, simply: unlike the offense of interfering
with civil rights under color of law, see id., 2H1.4, which
___ ___
involves neither bodily injury nor the threatened or actual use
_______ ___
of force as an inherent offense characteristic.
________
Finally, applying these sentencing guidelines in
accordance with their plain and unambiguous language promotes
proportionality in sentencing, an important congressional objec-
tive of guideline sentencing. U.S.S.G., Ch. 1, Pt. A, intro. 2,
21
p.s. (Congress sought "proportionality in sentencing through a
system that imposes appropriately different sentences for crimi-
nal conduct of differing severity"). U.S.S.G. 2A2.2(b)(3)
prescribes incremental sentence adjustments scaled to the severi-
ty of the bodily injury inflicted on the victim. For example,
while "serious bodily injury" requires a four level increase,
"permanent or life-threatening bodily injury" necessitates a six
level increase. U.S.S.G. 2A2.2(b) (3)(B-C). If we were to
conclude, as appellant urges, that impermissible "double count-
ing" resulted from the four level increase for "serious bodily
injury," no increase in the offense level would be permissible
even for the more egregious infliction of "permanent or life-
threatening bodily injury," see id. 2A2.2(b)(3)(D), where the
___ ___
assault likewise was determined to have been aggravated in light
of the degree of bodily injury sustained by the victim, see id.
___ ___
2H1.4(a)(2). The carefully calibrated offense level adjustment
scheme prescribed in U.S.S.G. 2A2.2(b)(3), cf. Williams, 954
___ ________
F.2d at 206 ( 2A2.2(b)(2) "rationally reflects the Guideline's
graduated adjustment scheme" for possessing a weapon), would be
disarranged in such cases, as the base offense level could not be
increased either in response to an assault which caused "pe-
rmanent or life-threatening injury," U.S.S.G. 2A2.2(b)(3)(D),
or one which caused "serious bodily injury," U.S.S.G. 2A2.2(b)-
(3)(C).
Thus, in sum, we think the carefully structured sen-
tencing scheme in Chapter Two, Part H, as a whole, no less than
__ _ _____
22
U.S.S.G. 2H1.4 in particular, constitutes a considered resolu-
_______
tion of the "double counting" issue raised on appeal, rather than
____
evidence of the Commission's failure to recognize it. As there
was no impermissible "double counting," we reject the contention
that the district court was required to disregard the plain and
unambiguous language of U.S.S.G. 2A2.2(b)(3)(B) and 2H1.4(a)-
(2).
For the foregoing reasons, the sentence imposed by the
district court must be affirmed.
Affirmed.
Affirmed.
________
23
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