United States v. Porter

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 28, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee/Cross-
Appellant,
Nos. 18-4081 & 18-4099
v.
MARK OLIC PORTER,
Defendant - Appellant/Cross-
Appellee.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:17-CR-00527-DB-1)
_________________________________
Daphne Oberg, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public
Defender; Scott Keith Wilson and Bretta Pirie, Assistant Federal Public Defenders,
District of Utah, on the briefs), Salt Lake City, Utah, for the Defendant -
Appellant/Cross-Appellee.
Max Lapertosa, Attorney (Eric S. Dreiband, Assistant Attorney General; Erin H. Flynn,
Attorney, U.S. Department of Justice, with him on the brief), Washington, D.C. for the
Plaintiff - Appellee/Cross-Appellant.
_________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Mark Olic Porter shouted racial epithets at Lucas Waldvogel, a seven-year-old
African American who lived in Mr. Porter’s apartment complex. After hearing Mr.
Porter’s language, the boy’s father, Michael Waldvogel, confronted Mr. Porter, who then
assaulted Mr. Waldvogel with a stun cane. Shortly thereafter, Mr. Waldvogel and his
family moved out of the complex.
A jury convicted Mr. Porter of interfering with Mr. Waldvogel’s housing because
of Mr. Waldvogel’s race, a violation of the Fair Housing Act, 42 U.S.C. § 3631. The
district court sentenced Mr. Porter to nine months in prison. He appeals his conviction.
The Government cross-appeals his sentence.
On direct appeal, Mr. Porter first argues the evidence was insufficient to show he
assaulted Mr. Waldvogel because of his race. Based on our review of the trial evidence,
we disagree and hold that a reasonable jury could find Mr. Porter guilty beyond a
reasonable doubt. Mr. Porter also argues the district court plainly erred by allowing the
prosecution’s opening statement and closing arguments, the trial evidence, and the jury
instructions to make it likely that the jury convicted him for his actions against Lucas
rather than Michael Waldvogel, thereby constructively amending the indictment. We
disagree and hold that the presentations at trial clearly identified Michael Waldvogel as
the alleged victim.
On cross-appeal, the Government argues procedural sentencing error. It first
argues the district court miscalculated the advisory sentencing range under the United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) because the evidence showed
2
that Mr. Porter committed an aggravated assault rather than a simple assault against Mr.
Waldvogel. We disagree, holding the district court’s implicit finding that Mr. Porter did
not intend to inflict bodily harm was not clearly erroneous. The Government
alternatively argues the district court erred when it failed to apply a base level of 10 under
the applicable sentencing Guideline when Mr. Porter’s offense involved “the use or threat
of force against a person.” We agree with the alternative argument and hold the district
court erred in calculating Mr. Porter’s sentence.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), we
affirm Mr. Porter’s conviction and remand for resentencing.
I. BACKGROUND
A. Factual Background1
1. The Incident
The assault occurred at the Adagio Apartments in Draper, Utah, where both men
lived in 2016. Mr. Waldvogel and his neighbor, Kaitlin Adair, described the incident at
trial.
On November 3, 2016, Ms. Adair returned home from work and saw Mr. Porter on
his front patio. He spoke to her, first making small talk and then “talking about
immigration.” Record on Appeal (“ROA”), Vol. V at 246. Ms. Adair testified: “I don’t
remember specifically everything that he said, but I remember him saying that we need to
1
The facts are based on the trial record.
3
exterminate all of the motherfucking niggers, but first we need to exterminate all the
motherfucking nigger lovers.” Id.2
During this conversation, seven-year-old Lucas Waldvogel, who is African
American, was riding his scooter on the sidewalk within view of Mr. Porter’s patio. Ms.
Adair noticed that Mr. Porter’s attitude changed when he saw Lucas: “He seemed to get
more agitated. His volume seemed to increase. It seemed like he was getting louder
because the boy was out there.” Id. at 248. Ms. Adair withdrew from the conversation
and considered calling the police. She did not do so.
Lucas went inside and informed his father “that there was a man outside shouting
at him.” Id. at 175. Mr. Waldvogel told Lucas to go back outside. When Lucas returned
with the same complaint, Mr. Waldvogel went to the balcony of his apartment to see
what was happening. He heard Mr. Porter say to Lucas, “[G]et out of here, nigger.”
Id. at 177.
Mr. Waldvogel ran outside toward Mr. Porter’s apartment. As he approached, Ms.
Adair summoned him. She warned him that Mr. Porter “ha[d] been saying some pretty
crazy things out here while your boy has been out here.” Id. at 250. She urged Mr.
Waldvogel to “be cautious, because it looked like [Mr. Porter] had been drinking.” Id.
2
We avoid inclusion of obscenities, racial slurs, and other offensive language in
our opinions unless the word or phrase is central to our analysis and is a quotation from
one of the parties. In this appeal, Mr. Porter challenges whether the evidence was
sufficient for the jury to find improper racial motivation for his conduct. For the reader
to understand the verdict and how we resolve this issue, we quote his obscenities and
racial epithets that were presented to the jury.
4
She recalled that during this interaction, Mr. Waldvogel “didn’t seem threatening” and
“didn’t make [her] feel nervous.” Id.
She also explained:
A. It didn’t seem like Mr. Porter had great judgment at the
time with everything that was going on and Mr. Waldvogel, I
am not sure of his race or ethnicity, but he didn’t look white,
and so I was concerned that that might cause a problem.
Q. When you say cause a problem, do you mean for the
defendant?
A. For Mr. Waldvogel.
Q. Explain why.
A. I was not sure if Mr. Porter would lash out or if he would
be violent. With how he was acting, I believe that he might,
that it might take that turn.
Q. That is what you were trying to communicate to Mr.
Waldvogel?
A. Yes.
Id. at 251.
Mr. Waldvogel retrieved Lucas, and they began walking toward their apartment.
As they passed Mr. Porter’s patio, Mr. Porter came outside. Mr. Waldvogel approached
the patio and said “something to the effect of . . . I don’t care what you’re saying in your
house, but, you know, don’t yell that stuff at my son.” Id. at 180-81. Mr. Porter
responded, “[Y]ou and your nigger son can get out of here.” Id. at 181.
During this interaction, Mr. Porter was holding a stun cane in his hand near his
right leg. The cane included a flashlight and a small barbed part on the end that, when
5
activated, would send an electric shock into anything it touched. Mr. Waldvogel
testified, “[T]he next thing I remember was hearing the arcing of a device as it came over
this side of my head and then it hit me on my neck.” Id. at 182. The cane “pretty much
incapacitated” Mr. Waldvogel, who fell to the ground. Id. at 183. Mr. Waldvogel then
grabbed the stun cane and pulled it away from Mr. Porter. Mr. Waldvogel fell backward
into the grass, and the stun cane broke. Ms. Adair testified that, during this encounter,
Lucas “stayed away,” id. at 252, and remained “far off on kind of the other side of the
grassy area,” id. at 251.
Mr. Porter announced he was going to call the police because Mr. Waldvogel had
stolen his property. Mr. Waldvogel responded that he intended to call the police, and,
after discarding the broken stun cane and walking back to his apartment, he did. Mr.
Waldvogel next saw Mr. Porter leave the apartment complex in his car.
While Mr. Porter was away, three Draper Police Department officers responded to
Mr. Waldvogel’s call. They examined and photographed Mr. Waldvogel’s neck, which
had a small red mark, and asked whether Mr. Waldvogel needed medical attention. He
declined. The Government introduced a picture of Mr. Waldvogel’s neck at trial.
When Mr. Porter returned to the Adagio, the police arrested him. Mr. Waldvogel
recounted that, during the arrest, Mr. Porter “was telling all the officers to F off. He
called the officers nigger lovers and a lot of F bombs.” Id. at 193.
Mr. Waldvogel testified that the altercation deeply affected Lucas. In the ensuing
weeks, Lucas slept in Mr. Waldvogel’s bed and insisted that Mr. Waldvogel block the
6
front door with a large elliptical exercise machine. Lucas also stopped playing outside
and would no longer retrieve the mail with his father. As a result, Mr. Waldvogel asked
for and received permission to terminate his lease and move away from the Adagio. He
eventually moved away from Draper because he feared running into Mr. Porter.
2. Mr. Porter’s Animosity Toward African Americans
As conceded in his brief and as the evidence confirmed, Mr. Porter holds racist
views. See Porter Opening Br. at 2, 11.
When Mr. Porter moved to the Adagio Apartments in 2016, he asked the leasing
agent how many African Americans lived there. After he moved in, Mr. Porter told
Adagio maintenance worker Tyler Young, who was working on a vacant apartment
above Mr. Porter’s apartment, “not to move any niggers in above him.” ROA, Vol. V at
130. On another occasion, while fixing Mr. Porter’s water heater, Mr. Young overheard
Mr. Porter deliver a parody of Dr. Martin Luther King’s “I Have a Dream” speech,
offering his own dream “that all niggers were dead.” Id. at 132.
Ms. Adair said that Mr. Porter told her he was “concerned” that the paperboy, who
was African American, would break into his apartment. Id. at 245. She also stated, “The
way [Mr. Porter] spoke about immigration led me to believe that he didn’t like Mexicans
or South Americans maybe.” Id. She added, “He didn’t like black people.” Id.
Mr. Porter also demonstrated his racial animus in his comments to Ms. Adair
immediately before the assault, to the Draper Police shortly after the assault, and later to
the FBI when he was arrested the second time.
7
3. The FBI’s Arrest of Mr. Porter
Mr. Porter was released after his initial arrest. Shortly thereafter, the Adagio
evicted him, and he moved to Arizona. In 2017, nearly a year after the incident, FBI
agents arrested Mr. Porter at his new home in Arizona and recorded their interviews with
him. In one of these recordings, Mr. Porter recounted his version of the incident and
admitted that he had told Lucas, “Get out of here you little stinking nigger.” ROA, Vol.
III, Exh. 6-3 at 0:38-56.
In another recording, Mr. Porter stated: “I don’t want nothing to do with [African
Americans]. I even told ’em when I moved in, I said, I don’t want to live next to any of
’em. I told ’em at the complex.” Id., Exh. 6-5 at 0:33-42. Mr. Porter continued to make
anti-African American statements while the FBI agents transported him to a magistrate
judge for his arraignment. Special Agent Elliot White reported: “[Mr. Porter] also said
that real white men should kill niggers and asked if that was a federal offense. Also,
during [sic] multiple times during the transport Mr. Porter said that Hitler had it right, he
just had the wrong people, and that he felt that niggers were not even human.” ROA,
Vol. V at 290 (repeating Mr. Porter’s statements that were quoted in the agent’s report).
8
4. Mr. Waldvogel’s Family and Race
Mr. Waldvogel and his two children moved into the Adagio in March 2016.3 He
described his seven-year-old son, Lucas, as “African American” and his daughter as
“mixed race.” Id. at 166.
At trial, witnesses offered varied views about Mr. Waldvogel’s race. Ms. Adair
identified Lucas as “African American,” though she was “not sure of [Mr. Waldvogel’s]
race or ethnicity, but he didn’t look white.” Id. at 246-47, 251. The Adagio’s leasing
agent believed Mr. Waldvogel was from “a Latin country” based on Mr. Waldvogel’s
appearance and conversations they had about food. Id. at 123.
Mr. Waldvogel testified, “I have always said my ethnicity is Latin American and
my race is mixed.” Id. at 164. He explained that both his mother and father were Costa
Rican, and both were “mixed race.” Id. at 165. He considered himself “partially African
American.” Id.
Mr. Porter stated in his FBI interviews that Mr. Waldvogel “looked like he was
white. He was probably half Negro and then his wife works, and his kids look all a
hundred percent, you know.” ROA Vol. III, Exh. 6-5 at 0:23-33. Mr. Porter also told the
FBI that Mr. Waldvogel “wasn’t a Negro, he was a half-Negro.” Id., Exh. 6-3 at 1:03-05.
3
Mr. Waldvogel testified that he had a 50-50 custody split with his ex-wife, but
“in real life” his children lived with him “90 percent of the time.” ROA, Vol. V at 166.
9
B. Procedural History
1. Indictment and Trial
A federal grand jury charged Mr. Porter with one count of “Interference with
Housing” in violation of 42 U.S.C. § 3631. ROA, Vol. I at 15. The indictment alleged
that Mr. Porter
did by force and threat of force, willfully injure, intimidate,
and interfere with, and attempt to injure, intimidate, and
interfere with, M.W., an African-American man, because of
M.W.’s race and color and because M.W. was occupying a
dwelling; specifically, the defendant yelled “nigger,” said get
out of here to M.W. and M.W.’s seven-year-old-son, and used
a stun cane (a Zap Cane) to assault M.W., resulting in bodily
injury to M.W. and involving the use of a dangerous
weapon . . . .
Id. at 15-16.
Mr. Porter pled not guilty. At his three-day jury trial, the Government called nine
witnesses and Mr. Porter called one.
2. Rule 29 Motion and Verdict
At the close of the Government’s case, Mr. Porter moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29. He challenged the sufficiency of
the evidence “as to each and every element of this offense generally, and then specifically
and in addition dealing with the element of race, we believe the government has failed to
prove that Mr. Porter acted because of the race of Mr. Waldvogel.” ROA, Vol. V at
344-45. The district court denied the motion.
10
The jury found Mr. Porter guilty as charged. On its special verdict form, the jury
found “[Mr.] Porter used a dangerous weapon,” but it did not find “[Mr.] Porter caused
bodily injury to [Mr.] Waldvogel.” ROA, Vol. I at 128. Mr. Porter did not renew his
Rule 29 motion at the end of trial.
3. Sentencing
The Presentence Investigation Report (“PSR”) calculated a recommended
sentencing range of 6-12 months in prison under the Guidelines. The Government
objected to the PSR on two grounds. The district court overruled the Government’s
objections and sentenced Mr. Porter to nine months of imprisonment. We detail the
PSR’s and the district court’s sentencing calculations—and the Government’s objections
to them—when we address the Government’s cross-appeal below.
II. DISCUSSION
A. Mr. Porter’s Appeal
Mr. Porter argues (1) the trial evidence was insufficient to support Mr. Porter’s
conviction under 42 U.S.C. § 3631, and (2) the district court allowed a constructive
amendment to the indictment.
1. Sufficiency of the Evidence
Mr. Porter argues the evidence was insufficient because it showed that Mr.
Waldvogel “does not appear to be and does not identify as African American.” Porter
Opening Br. at 18. Accordingly, despite Mr. Porter’s demonstrated racial animus
towards African Americans, he contends the Government failed to prove he assaulted Mr.
11
Waldvogel on account of Mr. Waldvogel’s race. Mr. Porter further argues that even if
the jury found Mr. Waldvogel is African American, the evidence still fell short of
showing that he acted based on Mr. Waldvogel’s race. See id. at 18-19; Oral Arg. at
10:28-11:29. We disagree with Mr. Porter.
a. Standard of review
In assessing a sufficiency-of-the-evidence challenge, we must consider all the trial
evidence, and “[w]e will reverse a conviction for insufficient evidence only when no
reasonable jury could find the defendant guilty beyond a reasonable doubt.” United
States v. Christy, 916 F.3d 814, 843 (10th Cir. 2019). We ordinarily review sufficiency
challenges de novo, United States v. Cota-Meza, 367 F.3d 1218, 1223 (10th Cir. 2004),
viewing the evidence and any reasonable inferences drawn therefrom in the light most
favorable to the government, United States v. Poe, 556 F.3d 1113, 1124 (10th Cir. 2009).
We do not weigh the evidence or consider the credibility of witnesses. United States v.
Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013).
Because Mr. Porter failed to renew his Rule 29 motion at the end of trial, however,
our review is for plain error. See id. at 1189. To establish plain error, the appellant must
demonstrate
the district court (1) committed error, (2) the error was plain,
and (3) the plain error affected her substantial rights. If these
factors are met, we may exercise discretion to correct the
error if (4) it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.
United States v. Story, 635 F.3d 1241, 1244 (10th Cir. 2011) (citations omitted).
12
Nonetheless, “our review for plain error in this context differs little from our de
novo review of a properly preserved sufficiency claim” because “a conviction in the
absence of sufficient evidence will almost always satisfy all four plain-error
requirements.” United States v. Gallegos, 784 F.3d 1356, 1359 (10th Cir. 2015) (citing
Rufai, 732 F.3d at 1189); see United States v. Kaufman, 546 F.3d 1242, 1263 (10th Cir.
2008). Accordingly, “review under the plain error standard in this case and a review of
sufficiency of the evidence usually amount to largely the same exercise.” United States
v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998).
b. Legal background
i. 42 U.S.C. § 3631
Congress enacted the Fair Housing Act in 1968. Its “Prevention of Intimidation”
provision, codified at 42 U.S.C. § 3631, makes it a crime to use force or the threat of
force to injure, intimidate, or interfere with people exercising their Fair Housing Act
rights. Mr. Porter was convicted under § 3631, which provides:
Whoever, whether or not acting under color of law, by force
or threat of force willfully injures, intimidates or interferes
with, or attempts to injure, intimidate or interfere with—
(a) any person because of his race [or] color . . . and because
he is or has been . . . renting, financing, occupying, or
contracting or negotiating for the sale, purchase, rental,
financing or occupation of any dwelling . . . .
shall be fined under Title 18 or imprisoned not more than one
year, or both; and if bodily injury results from the acts
committed in violation of this section or if such acts include
the use, attempted use, or threatened use of a dangerous
13
weapon, . . . shall be fined under Title 18 or imprisoned not
more than ten years, or both . . . .
42 U.S.C. § 3631.
Under this statute, the Government must prove that Mr. Porter (1) used force or
the threat of force; (2) to willfully injure, intimidate, or interfere with Mr. Waldvogel (or
attempt to do so); (3) because of Mr. Waldvogel’s race; and (4) because Mr. Waldvogel
was occupying a dwelling. Id.; see United States v. Magleby, 241 F.3d 1306, 1312 (10th
Cir. 2001). To prove the conduct amounted to a felony that qualifies for a 10-year
maximum sentence, the Government must also show the offense (1) involved the use of a
dangerous weapon, or (2) resulted in bodily injury to Mr. Waldvogel. See 42 U.S.C.
§ 3631.
ii. Specific intent: “because of” Mr. Waldvogel’s race
Mr. Porter focuses on the third element: that he acted because of Mr. Waldvogel’s
race. This “specific intent” element turns on the defendant’s motivation for his actions.
See Magleby, 241 F.3d at 1312. To sustain a conviction, “the Government must prove
beyond a reasonable doubt that the defendant acted with the specific intent to injure,
intimidate or interfere with the victim because of [his] race and because of the victim’s
occupation of [his] home.” United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir.
2000) (quotations omitted).
Cases addressing § 3631 have held that this element is satisfied as long as the
defendant is motivated, at least in part, by the victim’s race and occupation of a dwelling.
14
Magleby, 241 F.3d at 1310 (rejecting challenge to jury instruction that stated “it does not
matter that the defendant may have had more than one motive in performing the act as
long as the defendant’s race was one of his motives”). But race and occupation of a
dwelling need not be the sole motivation for the defendant’s actions. See id.; see also
United States v. Piekarsky, 687 F.3d 134, 144 (3d Cir. 2012) (“[A] ‘mixed motive’ jury
instruction sets forth the correct legal standard for crimes involving a specific intent to
deprive a victim of a protected right.”); United States v. Craft, 484 F.3d 922, 926 (7th
Cir. 2007) (stating the government was not required to prove racial animus was the
defendant’s “sole motivation”).
The jury instructions here required the Government to prove “the defendant would
not have acted but for the victim’s occupancy of his home and the victim’s race or color.”
ROA, Vol. I at 102. To sustain a conviction under § 3631, Mr. Waldvogel’s race must
have been a necessary motivation but not the sole motivation for Mr. Porter’s assault.
See Piekarsky, 687 F.3d at 144; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 241
(1989), modified by statute as recognized in Burrage v. United States, 571 U.S. 204, 213
n.4 (2014) (interpreting separate statutory provision and concluding “the words ‘because
of’ do not mean ‘solely because of’”) (plurality op.)); Wilcox v. Homestake Mining Co.,
619 F.3d 1165, 1173 (10th Cir. 2010) (explaining in tort context that “there can be
multiple but-for causes of a plaintiff’s injury”). In McDonald v. City of Wichita, the
panel reaffirmed this principle, stating, “But for cause does not mean sole cause.” 735 F.
15
App’x 529, 531-32 (10th Cir. 2018) (unpublished) (quotations omitted) (cited for
persuasive value under 10th Cir. R. 32.1(A)).
Because motivation is difficult to discern, the jury “is permitted to draw inferences
of subjective intent from a defendant’s objective acts” and statements. Wingfield v.
Massie, 122 F.3d 1329, 1333 (10th Cir. 1997); see also Magleby, 241 F.3d at 1312;
United States v. Johnson, 971 F.2d 562, 566 (10th Cir. 1992) (“Direct evidence of a
defendant’s intent is seldom available. Intent can be proven, however, from surrounding
circumstances.”). “Thus, even when a defendant, as here, denies having the requisite
intent, a jury may disbelieve the defendant if [his] words and acts in the light of all the
circumstances make [his] explanation seem improbable.” Wingfield, 122 F.3d at 1333
(quotations omitted).
In Magleby, we upheld the defendant’s § 3631 conviction against a sufficiency-of-
the-evidence challenge. 241 F.3d at 1313. Mr. Magleby had burned a cross on the lawn
of an interracial couple. Id. He disclaimed knowledge that the couple who lived in the
house was interracial, but we held the circumstantial evidence was sufficient to prove he
acted out of racial animus. Id. We noted that (1) the defendant understood cross-burning
symbolized racial hatred, (2) witnesses “clearly recalled [the defendant] indicating the
family was black” after he returned from setting fire to the cross, and (3) the husband of
the couple was the only African American on the block. Id. (alterations and quotations
omitted). In addition, the defendant had a history of “racial slurs, racist jokes, racist
16
music, and racist internet sites.” Id. We concluded this evidence sufficiently established
that the defendant acted “because of” the victim’s race. See id.
Courts have credited a defendant’s expression of racial animus before and after the
criminal act as probative of intent. In another cross-burning case, for example, the Eighth
Circuit upheld the convictions of defendants who had expressed racial animus before
burning crosses in neighborhoods where they knew African Americans lived. United
States v. J.H.H., 22 F.3d 821, 826-28 (8th Cir. 1994). In Craft, the Seventh Circuit
upheld the defendant’s conviction for setting fire to the homes of Mexican and African
American families. 484 F.3d at 924-25. Although the defendant argued his crimes were
not racially motivated, his post-arson racist slurs were sufficient to satisfy the specific
intent element of § 3631. Id. at 926 (quotations omitted).
c. Analysis
Based on the trial evidence, a reasonable jury could conclude beyond a reasonable
doubt that Mr. Porter assaulted Mr. Waldvogel because of his race. See 42 U.S.C.
§ 3631(a).
Mr. Porter argues he did not act based on race because Mr. Waldvogel did not
appear to be African American to him. He points to his arrest interview, when he said
Mr. Waldvogel “looked like he was white,” ROA, Vol. III, Exh. 6-5 at 0:23-33, and to
Mr. Waldvogel’s testimony that “I have always said my ethnicity is Latin American and
my race is mixed,” ROA, Vol. V at 164. Mr. Porter also cites the Adagio leasing agent’s
testimony that Mr. Waldvogel looked like he was from a “Latin country.” Id. at 123.
17
And he notes that, although Ms. Adair believed Lucas was “African American,” id. at
246, she was “not sure” of Mr. Waldvogel’s race, id. at 251. Mr. Porter therefore
contends the evidence was insufficient for the jury to conclude that Mr. Waldvogel
looked African American and that Mr. Porter’s assaulted him because of his race.
Even if Mr. Porter’s theory were plausible, after considering all the evidence, and
drawing all reasonable inferences in the Government’s favor, we hold a reasonable jury
could conclude that Mr. Porter assaulted Mr. Waldvogel because of his race. See Poe,
556 F.3d at 1124.
First, the evidence showed Mr. Porter believed Mr. Waldvogel was at least
partially African American. Although Mr. Porter stated during his FBI interview that Mr.
Waldvogel “looked like he was white,” he also said that Mr. Waldvogel was “probably
half Negro.” ROA, Vol. III, Exh. 6-5 at 0:23-27. This statement comports with Mr.
Waldvogel’s self-identification as “partially African American,” ROA, Vol. V at 165,
and with Ms. Adair’s testimony that Mr. Waldvogel “didn’t look white,” id. at 251.
Based on this evidence, a reasonable jury could have concluded that Mr. Waldvogel was,
and Mr. Porter perceived him to be, at least half African American.
Second, Mr. Porter’s racial animus toward Lucas combined with his knowledge
that Mr. Waldvogel is Lucas’s father showed that Mr. Porter acted based on Mr.
Waldvogel’s race. Although Mr. Porter argues the incident happened too quickly for him
to form an opinion about Mr. Waldvogel’s race, the evidence suggests otherwise. Mr.
Porter admitted that he yelled at Lucas, “Get out of here you little stinking nigger.”
18
ROA, Vol. III, Exh. 6-3 at 0:53-55. After that and before the assault, (1) Mr. Waldvogel
testified that he told Mr. Porter, “[D]on’t yell that stuff at my son;” and (2) Mr. Porter
retorted, “[Y]ou and your nigger son can get out of here.” ROA, Vol. V at 181.
Irrespective of whether he may have thought Mr. Waldvogel was Lucas’s biological,
adoptive, or step parent, Mr. Porter told the FBI interviewer that Lucas appeared a
“hundred percent” African American and his father therefore was “probably half Negro.”
ROA Vol. III, Exh. 6-5 at 0:23-25. These statements described Mr. Porter’s perception
of Mr. Waldvogel.
Third, Ms. Adair’s interaction with Mr. Porter and her warning to Mr. Waldvogel
reflected her perception that Mr. Porter might act based on Mr. Waldvogel’s race. Before
the assault, Ms. Adair had spoken to Mr. Porter, had heard his racial slurs, and was
concerned about the possibility of violence because Mr. Porter had been drinking and
because of Mr. Waldvogel’s race. She explained: “I am not sure of [Mr. Waldvogel’s]
race or ethnicity, but he didn’t look white, and so I was concerned that that might cause a
problem.” ROA, Vol. V at 251. She added that, based on how Mr. Porter was acting, she
believed he might be violent. See id. This evidence was relevant to Mr. Porter’s intent
because it showed that an eyewitness to the events immediately leading up to the incident
recognized the danger that Mr. Porter might act violently toward Mr. Waldvogel based on
race.
Fourth, when the Draper Police arrested Mr. Porter, he called them “nigger
lovers.” Id. at 193. Because this statement came shortly after Mr. Porter assaulted Mr.
19
Waldvogel with a stun cane, a reasonable jury could infer that Mr. Porter perceived Mr.
Waldvogel as an African American and acted on that perception.
Finally, as noted above, cases addressing § 3631 establish that we may consider
Mr. Porter’s racial animus as corroborating his intent to act. See Magleby, 241 F.3d at
1313; Craft, 484 F.3d at 926. Before the incident, Mr. Porter told workers at the Adagio
that he did not want any African Americans living near him. ROA, Vol. V at 130; ROA,
Vol. III, Exh. 6-5 at 0:35-40. Based on her interactions with Mr. Porter, Ms. Adair
testified that “[h]e didn’t like black people.” ROA, Vol. V at 245. During his arrest, Mr.
Porter declared that “real white men should kill niggers” and that “he felt that niggers
were not even human.” Id. at 290. This evidence of Mr. Porter’s racist views lends
support to the jury’s finding that he acted with racial motives. See Magleby, 241 F.3d at
1313; Craft, 484 F.3d at 926 (holding that evidence of defendant’s racial animus
supported a finding that he acted with racial motives).
* * * *
Mr. Porter expressed anti-African American sentiments from the time he moved
into the Adagio until moments before he assaulted Mr. Waldvogel. Among other things,
he stated that he did not want African Americans living near him. The evidence
permitted a jury to conclude Mr. Waldvogel is partially African American, Lucas is fully
African American, and Mr. Porter knew Mr. Waldvogel was Lucas’s father. Mr. Porter’s
racist statement, “you and your nigger son can get out of here,” made just seconds before
he assaulted Mr. Waldvogel, linked Mr. Porter’s racial animus to his actions. ROA, Vol.
20
V at 181. A year later, Mr. Porter reaffirmed his racist beliefs in taped interviews with
the FBI. The evidence showed that Mr. Waldvogel’s having an African American son
was one of Mr. Porter’s motivations for the assault, but the evidence also was sufficient
for a reasonable jury to find that Mr. Porter assaulted Mr. Waldvogel “because of” Mr.
Waldvogel’s race. 42 U.S.C. § 3631; see Magleby, 241 F.3d at 1310, 1313 (affirming
mixed-motivation jury instruction and rejecting sufficiency-of-the-evidence challenge).
2. Constructive Amendment
Mr. Porter next argues the trial evidence, jury instructions, and the prosecution’s
opening statements and closing arguments likely induced the jury to convict Mr. Porter
for his treatment of seven-year-old Lucas rather than for his assault of Mr. Waldvogel.
He thus argues the district court improperly allowed the Government to constructively
amend the indictment. We disagree.
a. Additional procedural background
Mr. Porter does not challenge the jury instructions. Instruction No. 15 listed the
elements of the crime:
First: The defendant used force or threat of force;
Second: The defendant willfully injured, intimidated or
interfered with M.W., or willfully attempted to
injure, intimidate or interfere with M.W.;
Third: The defendant acted because M.W. was
occupying a dwelling and because of M.W.’s
race or color; and
21
Fourth: The defendant’s conduct resulted in bodily
injury to M.W. or involved the use, attempted
use, or threatened use of a dangerous weapon.
ROA, Vol. I at 144.4 In reading this instruction to the jury, the district court clarified,
“I’m sure you understand that M.W. refers to Mike Waldvogel.” ROA, Vol. V at 376.
Near the beginning of its opening statement, the Government highlighted:
Ladies and gentlemen, it is not against the law to hate black
people. The judge will tell you that it is not a crime to use
racial slurs. It is not even illegal to shout them at small
children, but this defendant has been charged with using
force to willfully intimidate and interfere and injure Mike
Waldvogel because Mike Waldvogel was black and because
Mike Waldvogel was occupying a home. After you all have
heard this evidence, we’re going to come back and we’re
going to ask you to hold this defendant accountable for what
he did that day and we’re going to ask you to find him guilty.
ROA, Vol. V at 82 (emphasis added).
In closing argument, the prosecutor commented on how the assault affected Lucas
Waldvogel: “You have heard over the course of three days that the defendant attacked a
seven-year-old African American boy using words. Fervently and loudly he attacked that
African American boy because he was riding his scooter around the courtyard of his
4
The indictment charged Mr. Porter with using a dangerous weapon and with
causing bodily harm to Mr. Waldvogel. ROA Vol. I at 16. Both the statute and the jury
instructions state that Mr. Porter would be guilty if the jury found he used a dangerous
weapon or caused bodily injury. Id. at 144; 42 U.S.C. § 3631. This difference between
the conjunctions “and” and “or” is of no moment here. See United States v. Gunter, 546
F.2d 861, 868-69 (10th Cir. 1976) (“It is hornbook law that a crime denounced in the
statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter
proven in the disjunctive.”).
22
home.” Id. at 380. The Government referenced Lucas Waldvogel at other points in its
opening statement and closing arguments.
b. Standard of review
Mr. Porter did not present a “constructive amendment” argument to the district
court. Accordingly, we review this issue under the plain error standard previously
described. See United States v. Miller, 891 F.3d 1220, 1231 (10th Cir. 2018) (reviewing
for plain error a constructive amendment argument not raised before district court); Porter
Opening Br. at 19 (acknowledging that his constructive amendment argument was
“unpreserved”). Mr. Porter has not established error on this ground.
c. Legal background
“[I]t is a fundamental precept of federal constitutional law that a court cannot
permit a defendant to be tried on charges that are not made in the indictment.” Hunter v.
New Mexico, 916 F.2d 595, 598 (10th Cir. 1990) (quotations omitted). “A court
constructively amends the indictment if the evidence presented at trial and the
instructions raise the possibility that a defendant may have been convicted on a charge
other than that alleged in the Indictment.” United States v. Kalu, 791 F.3d 1194, 1206
(10th Cir. 2015) (quotations omitted); see United States v. Edwards, 782 F.3d 554, 561
(10th Cir. 2015) (holding that a constructive amendment occurs when the evidence and
jury instructions create “a substantial likelihood that the defendant may have been
convicted of an offense other than the one charged in the indictment”). The prohibition
on constructive amendments protects against the dangers that: “(1) the defendant must
23
answer a charge that had not been brought by a grand jury, and (2) the defendant is
denied sufficient notice to present and prepare an adequate defense.” Kalu, 791 F.3d at
1206.
In assessing whether the district court improperly allowed a constructive
amendment, “[t]he jury instructions are of particular importance” because they provide
“assurance” that the jury found “the conduct charged in the indictment before it [could]
convict.” Miller, 891 F.3d at 1232. In Miller, the indictment charged the defendant with
a specific false statement regarding a previous suspension of his state medical license on
a DEA registration application. Id. at 1232. The jury instructions, however, allowed for
a conviction based on a second, uncharged false statement regarding a surrender or
suspension of his federal controlled-substance registration. Id. at 1232-33. We held that
a constructive amendment had occurred, explaining:
The indictment . . . directly tied the false-statement charge to
Defendant’s suspended Colorado license, and the prosecutor’s
argument that the jury could convict him based instead on the
surrender of his federal controlled-substance registration
reveals the very real possibility that Defendant was convicted
on a different set of facts than those alleged in the indictment.
Id. at 1233; see United States v. Farr, 536 F.3d 1174, 1184 (10th Cir. 2008) (finding a
constructive amendment and reversing defendant’s tax evasion conviction when “the
evidence and jury instructions at trial introduced to the jury an alternative way in which
the crime could have occurred” through “a different tax evaded”).
d. Analysis
24
Mr. Porter does not challenge the jury instructions, the admission of any of the
Government’s evidence, or the Government’s opening statement or closing arguments.
Instead, he argues the district court allowed the jury to substitute Lucas Waldvogel as the
victim. Neither the record nor this court’s case law supports his argument.
We presume the jury followed the court’s instructions “absent evidence to the
contrary.” Christy, 916 F.3d at 841. References in the instructions using Mr.
Waldvogel’s initials, M.W., and labelling him as “the victim” could not reasonably be
construed as referring to Lucas. Instruction No. 15 properly recited the elements of 42
U.S.C. § 3631, listed “M.W.” as the victim, and told the jury it needed to find that “the
defendant acted because M.W. was occupying a dwelling and because of M.W.’s race or
color.” ROA, Vol. I at 144. Instruction No. 15 also explained that the jury needed to
find that the “defendant’s conduct resulted in bodily injury to M.W. or involved the use,
attempted use, or threatened use of a dangerous weapon.” Id. Instruction No. 17 used
Mike Waldvogel’s full name and demanded that the jury’s verdict be unanimous. Neither
Lucas Waldvogel’s name nor his initials appear anywhere in the instructions. We see no
basis for concern that the jury could have been confused about the identity of the alleged
victim.
In addition, the Government presented no evidence that Mr. Porter’s conduct
toward Lucas “resulted in bodily injury” to the boy or “involved the use, attempted use,
or threatened use of a dangerous weapon.” Id. Instead, the evidence showed that Mr.
Porter kept the stun cane by his leg as Mr. Waldvogel approached. Mr. Waldvogel
25
testified that he never got a good look at the cane until he yanked it from Mr. Porter’s
hands. Ms. Adair testified that, during this encounter, “Lucas was far off on kind of the
other side of the grassy area.” ROA, Vol. V at 251.
Further, the Government’s evidence showed Mr. Waldvogel was the victim. For
example, (1) Ms. Adair and Mr. Waldvogel both testified about Mr. Porter’s assault of
Mr. Waldvogel with the stun cane; (2) the jury heard Mr. Waldvogel’s 911 call, in which
he reported that Mr. Porter had struck him with the stun cane; and (3) the Government
introduced the broken stun cane and a brand-new identical (and functional) stun cane at
trial. Although there was some testimony about Lucas’s reaction to the incident, the trial
evidence focused on Mr. Porter’s stun cane and his altercation with Mr. Waldvogel.
Because the evidence focused on Mr. Porter’s assault and there was no suggestion
that Mr. Porter used or threatened to use a dangerous weapon against Lucas Waldvogel,
or physically threatened or harmed him in any way, there was no reasonable likelihood
the jury could have found that Lucas was the victim rather than his father. The jury
instructions and the evidence eliminate “the possibility that [Mr. Porter] may have been
convicted on a charge other than that alleged in the Indictment.” Kalu, 791 F.3d at 1206.
Finally, in addition to the jury instructions and the trial evidence, the prosecution’s
opening statement emphasized that Mr. Waldvogel was the victim: “The judge will tell
you that it is not a crime to use racial slurs. It is not even illegal to shout them at small
children.” ROA, Vol. V. at 82. In other words, the Government cautioned the jury that it
could not convict Mr. Porter for his words to Lucas. In its closing argument, the
26
Government reinforced that Mr. Waldvogel was the victim of Mr. Porter’s assault, noting
Mr. Porter was charged with “a hate crime and for having willfully used force to injure,
intimidate and interfere with Mike Waldvogel because Mike Waldvogel was occupying a
dwelling and because of Mike Waldvogel’s race.” Id. at 380.
We reject Mr. Porter’s constructive amendment argument. It repackages his
sufficiency-of-the-evidence argument. He asserts the Government could not prove Mr.
Waldvogel was African American and posits that the jury may have convicted Mr. Porter
of verbally assaulting Lucas because of Lucas’s race. That argument fails because
neither the jury instructions, the trial evidence, nor the prosecution’s opening statement
and closing arguments created a plausible risk that the jury substituted Lucas for Mr.
Waldvogel as the victim of Mr. Porter’s assault.
B. The Government’s Cross-Appeal
The Government challenges the procedural reasonableness of Mr. Porter’s
sentence. After setting forth the applicable legal background, we identify the relevant
Sentencing Guidelines, detail the district court’s sentencing proceedings, and analyze the
merits of the Government’s arguments.
1. Legal Background
a. Procedural reasonableness
“We review the overall reasonableness of a sentence in two steps,” for procedural
and substantive reasonableness. United States v. Gieswein, 887 F.3d 1054, 1058 (10th
27
Cir. 2018); see Gall v. United States, 552 U.S. 38, 51 (2007). Only procedural
reasonableness is at issue in this appeal.
Procedural error includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51; see United States v. Sanchez-
Leon, 764 F.3d 1248, 1261-62 (10th Cir. 2014).
b. Standard of review
We review procedural reasonableness for abuse of discretion, which means “we
review de novo the district court’s legal conclusions regarding the guidelines and review
its factual findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th
Cir. 2012); see Gall, 552 U.S. at 56.
Under clear error review, we “view the evidence and inferences drawn therefrom
in the light most favorable to the district court’s determination.” United States v. Brown,
314 F.3d 1216, 1222 (10th Cir. 2003). “To constitute clear error, we must be convinced
that the sentencing court’s finding is simply not plausible or permissible in light of the
entire record on appeal, remembering that we are not free to substitute our judgment for
that of the district judge.” United States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir.
2003) (quotations omitted); see Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985) (“[I]f the district court’s account of the evidence is plausible in light of the record
28
viewed in its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence differently.”).
If the district court’s factual determination depends on its assessment of a witness’s
credibility, its conclusion is “virtually unreviewable on appeal.” United States v. Virgen-
Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (quotations omitted).
c. Harmless error
The party challenging the sentence—here, the Government—“bears the initial
burden of showing that the district court” erred. Williams v. United States, 503 U.S. 193,
203 (1992). If we find a procedural error, “resentencing is required only if the error was
not harmless.” United States v. Cerno, 529 F.3d 926, 939 (10th Cir. 2008); see 18 U.S.C.
§ 3742(f)(1) (requiring remand for resentencing when a sentence “was imposed in
violation of law or imposed as a result of an incorrect application of the sentencing
guidelines”). “Harmlessness must be proven by a preponderance of the evidence, and the
burden of making this showing falls on the beneficiary of the error”—here, Mr. Porter.
Cerno, 529 F.3d at 939.
The Supreme Court has said: “When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate sentence falls within the
correct range—the error itself can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-Martinez v. United States,
136 S. Ct. 1338, 1345 (2016). Thus, when a district court has applied the wrong
Guidelines range, appellate courts generally presume the error requires reversal and
29
remand for resentencing. See id.; see also United States v. Kieffer, 681 F.3d 1143, 1169
(10th Cir. 2012) (noting that “we are compelled to remand for resentencing when we
find” that the district court calculated the Guidelines range incorrectly (quotations
omitted)).
The Tenth Circuit has recognized a limited exception to this reverse-and-remand
rule: “We deem procedural error not reversible, i.e., harmless, if the record viewed as a
whole clearly indicates the district court would have imposed the same sentence had it
not relied on the procedural miscue(s).” Kieffer, 681 F.3d at 1165. In Gieswein, for
example, the district court varied upward from the Guidelines sentence to the statutory
maximum of 240 months based on the defendant’s criminal history. 887 F.3d at 1056.
We reversed the defendant’s first sentence based on intervening Supreme Court law. On
remand, the district court again issued a 240-month sentence, indicating it would go
higher if it could. Id. Under these circumstances, we held on the second appeal that an
erroneous miscalculation of the applicable Guidelines range at the defendant’s
resentencing was harmless. Id.
We noted in Gieswein, however, that it constituted the “rare case.” Id. It is not
enough for the district court to say “that its conclusion would be the same even if all the
defendant’s objections to the presentence report had been successful.” Id. at 1062
(quotations omitted); see also United States v. Pena-Hermosillo, 522 F.3d 1108, 1117-18
(10th Cir. 2008). In short, we will find the district court’s error was harmless only when
30
it is clear from the record that the court would have imposed the same sentence regardless
of the correct Guidelines calculation. Gieswein, 887 F.3d at 1063.
d. The relevant Guidelines provisions
Section 2H1.1 is the Guideline for convictions under 42 U.S.C. § 3631. It
provides that courts should apply the “greatest” base offense level of the following:
(1) the offense level from the offense guideline applicable to
any underlying offense;
(2) 12, if the offense involved two or more participants;
(3) 10, if the offense involved (A) the use or threat of force
against a person; or (B) property damage or the threat of
property damage; or
(4) 6, otherwise.
U.S.S.G. § 2H1.1(a).
For the purposes of this case, there are two possible “underlying offenses” that
could apply under U.S.S.G. § 2H1.1(a)(1): assault or aggravated assault. For “assault”
the base offense level is “7, if the offense involved physical contact, or if a dangerous
weapon (including a firearm) was possessed and its use was threatened.” U.S.S.G.
§ 2A2.3(a)(1). For aggravated assault, the base offense level is 14. U.S.S.G. § 2A2.2(a).
The § 2A2.2 aggravated assault comments explain: “‘Aggravated assault’ means 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; (C) strangling,
suffocating, or attempting to strangle or suffocate; or (D) an intent to commit another
31
felony.” U.S.S.G. § 2A2.2 cmt. n.1 (emphasis added); see United States v. McConnell,
605 F.3d 822, 824 (10th Cir. 2010) (“Commentary to the Guidelines is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” (quotations omitted)).
2. Additional Procedural Background
The PSR calculated Mr. Porter’s recommended sentence under § 2H1.1, using
assault as the “underlying offense.”5 It found his base offense level was seven under the
assault Guideline, U.S.S.G. § 2A2.3(a)(1), and applied a three-level “hate crime” upward
adjustment under U.S.S.G. § 3A1.1(a) because Mr. Porter “intentionally selected any
victim . . . because of the actual or perceived race, color, . . . ethnicity, . . . or sexual
orientation of any person.” With an adjusted offense level of 10 and a criminal history
category of I, the recommended Guidelines range was 6 to 12 months of imprisonment.
The Government objected to the PSR. It argued the “underlying offense” for Mr.
Porter’s offense was aggravated assault under U.S.S.G. § 2A2.2 because Mr. Porter “used
a dangerous weapon with the intent to cause bodily injury.” ROA, Vol. I at 154-55
(quoting the Guidelines). The Government argued that, under this Guideline, the district
court should have (1) begun with a base offense level of 14, (2) added three levels under
5
As noted above, because the jury found Mr. Porter “used a dangerous weapon” to
violate § 3631, he qualified for a maximum sentence of 10 years. ROA Vol. I at 128; see
42 U.S.C. § 3631. The jury did not find that “Mark Porter caused bodily injury to Mike
Waldvogel.” ROA, Vol. I at 128.
32
the “hate crime” enhancement, and (3) added four levels for Mr. Porter’s use of a
dangerous weapon under U.S.S.G. § 2A2.2(b)(2)(B). Gov’t Opening Br. at 10-11. With
a criminal history category of I, the Government’s calculations would have yielded a total
offense level of 21 and an advisory Guidelines range of 37 to 46 months. Id. at 11.
The Government argued alternatively that even if assault was the proper
“underlying offense,” the base level should be 10 under § 2H1.1(a)(3), not seven. After
adding the three-level hate crime enhancement for a total offense level of 13, the advisory
Guideline range would have been 12 to 18 months. See Gov’t Opening Br. at 11.
The district court overruled the Government’s objections and found that “the
guidelines [were] correctly calculated in the [PSR].” ROA, Vol. V at 449. As noted
above, the judge sentenced Mr. Porter to nine months, adding, “I would reach the same
sentence under the 3553 factors.” Id. at 450. The court reasoned,
I am not trying to do a lenient sentence here. I am
trying to do a sentence that I think is appropriate and
reasonable under all of the circumstances. This was an
altercation between two men. There is a federal statute that
makes it clearly against the law to act on the basis of race.
This happened the way it happened and we have the record
and the jury found him guilty and he should serve a period of
time incarcerated. Sometimes we forget how long nine
months is in jail. He has served that. He will be on one year
of supervised release following his release from custody,
during which time he will be required to comply with all the
standard conditions of supervised release.
Id. at 451-52.
33
3. Analysis
On appeal, the Government argues the district court erred by failing to use
aggravated assault as the “underlying offense” when calculating Mr. Porter’s Guidelines
range. It contends in the alternative that the court erred in applying a base offense level
of seven rather than 10 under U.S.S.G. § 2H1.1 because the offense involved “the use or
threat of force against a person.” We conclude the Government’s alternative calculation
is the correct one and reverse and remand for resentencing on that basis.
a. Aggravated assault as the underlying offense and proof of intent to injure
The jury concluded in its special verdict that Mr. Porter “used a dangerous
weapon.” ROA, Vol. I at 128; see U.S.S.G. § 2A2.2 cmt. n.1. Whether the district court
should have used aggravated assault as the “underlying offense” under § 2H1.1(a)
therefore turns on Mr. Porter’s “intent to cause bodily injury (i.e., not merely to frighten)
with that weapon,” a question of fact. U.S.S.G. § 2A2.2 cmt. n.1. By sentencing Mr.
Porter under the assault provision, the district court necessarily found that Mr. Porter did
not have the requisite intent.
We review this finding for clear error. United States v. Ford, 613 F.3d 1263, 1270
(10th Cir. 2010) (reviewing district court’s determination of defendant’s intent for clear
error). Under de novo review, we may have viewed Mr. Porter’s intent during his
encounter with Mr. Waldvogel differently from the district court’s view. We conclude,
however, the court’s implicit finding that Mr. Porter lacked intent to injure Mr.
34
Waldvogel was not clearly erroneous. See Brown, 314 F.3d at 1221 (construing evidence
in the light most favorable to the district court’s determination).
i. The Government’s reliance on the special verdict
The Government argues Mr. Porter necessarily intended to cause bodily injury
because the jury’s special verdict found that he “used a dangerous weapon.” ROA, Vol. I
at 128. It reasons that Mr. Porter’s activating the stun cane and striking Mr. Waldvogel
on the neck conclusively established Mr. Porter’s intent to injure.
The jury instructions, which paraphrased the statute, undercut this argument. The
instructions stated that, to prove a violation of § 3631, the Government needed to show
that Mr. Porter by force or threat of force “willfully injured, intimidated or interfered with
M.W., or willfully attempted to injure, intimidate or interfere with M.W.” because of his
race and because he was occupying a dwelling. ROA, Vol. I at 144; see 42 U.S.C.
§ 3631. For a § 3631 offense to constitute the charged felony, the instructions further
stated the Government needed to prove that Mr. Porter’s “conduct resulted in bodily
injury to M.W. or involved the use, attempted use, or threatened use of a dangerous
weapon.” ROA, Vol. I at 144; see 42 U.S.C. § 3631.
Under the statute and the court’s instructions, the jury could have found only that
Mr. Porter interfered with, intimidated, or attempted to interfere with or intimidate Mr.
Waldvogel. None of these possible findings require proof that Mr. Porter intended to
cause bodily injury, yet all are consistent with the jury’s special finding that Mr. Porter
“used a dangerous weapon.” ROA, Vol. I at 128. They are also consistent with the
35
jury’s special finding that Mr. Porter did not “cause[] bodily injury to Mr. Waldvogel.”
Id. The special verdict form did not ask the jury to determine whether Mr. Porter used “a
dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with
that weapon,” as required to apply the aggravated assault Guideline. U.S.S.G. § 2A2.2,
cmt. n.1. Accordingly, the jury did not determine whether he intended to cause bodily
injury.
ii. The district court’s determination
It therefore fell to the district court at sentencing to decide whether the
Government had shown by a preponderance of the evidence that Mr. Porter intended to
cause bodily injury. See United States v. O’Brien, 560 U.S. 218, 224 (2010)
(“Sentencing factors . . . can be proved to a judge at sentencing by a preponderance of the
evidence.”). By choosing assault as the § 2H1.1(a) “underlying offense” over the
Government’s objection, the court necessarily found intent lacking.
The divergent testimony at trial was consistent with that determination. Ms. Adair
testified that she heard the stun cane but did not see Mr. Porter strike Mr. Waldvogel.
Even Mr. Waldvogel failed to offer testimony that Mr. Porter intentionally hit him. He
stated, “[T]he next thing I remember was hearing the arcing of a device as it came over
this side of my head and then it hit me on my neck.” ROA, Vol. V at 182. He did not
say he saw Mr. Porter swing the cane at him, nor did he claim that Mr. Porter intended to
36
strike him. See id.6 Mr. Porter told the FBI, “I didn’t zap him,” and said that Mr.
Waldvogel had walked into the cane as he was holding it in front of him. ROA, Vol. III,
Exh. 6-3 at 1:15-22. Mr. Porter also stated that Mr. Waldvogel approached him and
caused him to think, “[W]hy is he not backing off?” before Mr. Waldvogel pulled the
cane away and walked off with it. Id. at 1:25-32. The evidence is consistent with Mr.
Porter’s intending to intimidate or frighten Mr. Waldvogel rather than injure him. See
Virgen-Chavarin, 350 F.3d at 1134 (deferring to district court’s credibility
determination).
In sum, § 3631 allows a sentence exceeding one year because, as the jury
specifically found here, Mr. Porter assaulted Mr. Waldvogel with a dangerous weapon.
Because Mr. Porter used a stun cane to assault Mr. Waldvogel and pictures suggest the
cane left a red mark on his neck, it may have been reasonable to conclude that Mr. Porter
intended to cause bodily injury. But the district court found that, under the Guidelines,
the underlying offense was an assault and not an aggravated assault because the jury did
not find Mr. Waldvogel suffered a serious injury and because the evidence did not show
Mr. Porter intended to cause bodily injury. Whether or not we agree with the court’s
finding, we cannot say it was clearly erroneous. Anderson, 470 U.S. at 574 (“[T]he court
of appeals may not reverse [the district court] even though convinced that had it been
6
A picture of the red mark on the back of Mr. Waldvogel’s neck suggests he
might not have been facing Mr. Porter when he felt the device strike him. See ROA, Vol.
II, Exh. 4-2.
37
sitting as the trier of fact, it would have weighed the evidence differently.”). The district
court therefore did not abuse its discretion by declining to use aggravated assault to
calculate Mr. Porter’s advisory Guidelines range.7
b. Proper application of U.S.S.G. § 2H1.1 and “the use or threat of force”
The Government fares better with its second sentencing argument. The district
court found that assault was the “underlying offense” and applied a base offense level of
seven under §§ 2H1.1(a)(1) and 2A2.3(a)(1). The problem with this calculation is,
“[p]ursuant to § 2H1.1, the court must take the most severe base offense level,” United
States v. Serrata, 425 F.3d 886, 908 (10th Cir. 2005), and § 2H1.1(a)(3) requires a base
offense level of 10 “if the offense involved . . . the use or threat of force against a
person.”
By definition, Mr. Porter’s § 3631 felony conviction involved “force or [the] threat
of force.” 42 U.S.C. § 3631. Mr. Porter’s conviction under § 3631 plainly qualified for a
base offense level of 10, which is, of course, greater than the base level of seven that the
district court applied using assault as the “underlying offense.” See U.S.S.G.
§ 2H1.1(a)(3). In other words, the district court incorrectly applied § 2H1.1(a)(1) rather
than § 2H1.1(a)(3).
7
The clear error standard of review determines our holding. If, based on the same
evidence, the district court (1) found that Mr. Porter intended to injure Mr. Waldvogel
and (2) used aggravated assault as the “underlying offense” to calculate the Guidelines
range under § 2H1.1, and if Mr. Porter—rather than the Government—challenged the
Guidelines calculation, we would affirm for the same reason we affirm here: The court’s
factual finding would not have been clearly erroneous.
38
The parties appear to agree that this was an error. See Porter Resp. Br. at 33
(arguing only for harmless error); see also Gov’t Resp. Br. at 10 (“[Mr.] Porter appears to
concede that, even if aggravated assault does not apply, the district court committed clear
procedural error by failing to apply a base offense level of 10.”). The remaining question
is whether the district court’s erroneous calculation was harmless. It was not.
The district court should have begun with a base offense level of 10, added three
levels under U.S.S.G. § 3A1.1(a) for selecting a victim based on race, and applied a
criminal history category of I to produce a Guideline range of 12 to 18 months. To reach
a nine-month sentence, the district court would have needed to vary downward from the
advisory Guideline range. The record contains no evidence it would have done so.
Indeed, the court declared it was “not trying to do a lenient sentence here.” ROA, Vol. V
at 451. Even if the record were ambiguous as to whether the district court would have
imposed the same sentence under a 12-to-18-month Guidelines range, our precedent
requires us to remand. See Gieswein, 887 F.3d at 1056.
In sentencing Mr. Porter to nine months, the district court explained it was not
being “lenient” and noted that Mr. Porter’s offense was not as bad as some of the other
§ 3631 cases because it “involved an altercation between two men.” ROA, Vol. V at 451.
The court said that “sometimes we forget how long nine months is in jail,” and it
emphasized Mr. Porter’s one year of supervised release. Id. at 452. It further stated that
it “would reach the same sentence under the 3553 factors.” Id. at 450.
39
Under our case law, however, simply citing the § 3553 factors does not insulate
the sentence from procedural error. See Pena-Hermosillo, 522 F.3d at 1117. Instead, the
record must show that the corrected Guideline range would not have affected the
sentence. See Gieswein, 887 F.3d at 1063. In Gieswein, a “rare case,” the district court
varied upward from the Guidelines range twice, both times reaching the statutory
maximum. Id. It stopped at the 240-month maximum only because the statute would not
allow a harsher sentence. Id. Nothing comparable happened in this case. The court
sentenced Mr. Porter in the exact middle of his range.
Mr. Porter advances one remaining argument. He suggests our harmlessness
analysis is not the same when the court’s error favors the defendant rather than the
Government. See Porter Resp. Br. at 35 n.8. But he cites no authority. To the contrary,
18 U.S.C. § 3742 permits both defendants and the Government to appeal a sentence that
“was imposed as a result of an incorrect application of the sentencing guidelines.”
18 U.S.C. § 3742(a)(2) (appeal by a defendant); id. § 3742(b)(2) (appeal by the
Government). In addition, § 3742(f) states that, if “the sentence was imposed in violation
of law or imposed as a result of an incorrect application of the sentencing guidelines, the
court shall remand the case for further sentencing proceedings.” In sum, Mr. Porter has
not shown and cannot show the district court’s error was harmless.
40
III. CONCLUSION
We reject Mr. Porter’s sufficiency of the evidence and constructive amendment
challenges and affirm his conviction. We reject the Government’s argument that the
district court erred by failing to use the “underlying offense” of aggravated assault to
determine Mr. Porter’s base offense level. But we agree with the Government that the
district court incorrectly determined Mr. Porter’s base offense level under U.S.S.G.
§ 2H1.1(a). Because that error was not harmless, we remand with instructions for the
district court to vacate the original sentence and to resentence Mr. Porter in accordance
with this opinion.
41