United States v. Reuben Alvarez, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4827
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
REUBEN AUGUSTINE ALVAREZ, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00566-RDB-1)
Submitted: August 29, 2011 Decided: September 6, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Ayn B. Ducao, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On April 11, 2007, United States Drug Enforcement
Administration (DEA) Agents attempted to arrest Reuben Augustine
Alvarez, Jr. pursuant to an arrest warrant. One car, carrying
two agents, was angled across the street from the home where
Alvarez was staying in order to prevent Alvarez from driving
away. Nevertheless, Alvarez accelerated his vehicle toward the
car carrying the two agents, striking it, as well as a parked
car, before squeezing through the space and driving off. The
agents were unable to arrest Alvarez that day. Eight days
later, when confronted by law enforcement officers, Alvarez
again fled. He was arrested a few minutes later.
Based on the April 11 incident, a jury convicted
Alvarez of two counts of assaulting a federal officer with a
dangerous weapon, in violation of 18 U.S.C. § 111 (2006), one
count for each of the DEA agents in the car that Alvarez hit.
The district court calculated Alvarez’s sentencing range as
fifty-seven to seventy-one months, and imposed a variance
sentence of thirty-six months of imprisonment. Alvarez asserts
six claims of error on appeal. As explained below, we affirm in
part and vacate and remand in part.
First, Alvarez argues that he should not have been
convicted of two counts of assaulting a federal officer, because
he committed only one assaultive act. Whether his double
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conviction was in error is reviewed for plain error, because
Alvarez did not make this argument before the district court.
United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008). The
Government concedes, and we agree, that his double conviction
was plainly erroneous. See Ladner v. United States, 358 U.S.
169, 178 (1958) (“We thus hold that the single discharge of a
shotgun . . . would constitute only a single violation of [the
prior statutory section for 18 U.S.C. § 111].”). Accordingly,
we vacate the conviction on Count Two and remand this action to
the district court for the entry of an amended judgment.
Second, Alvarez argues that district court erred in
denying his motion for judgment of acquittal because the
evidence was insufficient to prove the requisite criminal
intent. This Court reviews the district court’s denial of a
motion for judgment of acquittal de novo. United States v.
Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct.
271 (2010).
In reviewing the sufficiency of the evidence following
a conviction, the court is to construe the evidence in
the light most favorable to the government, assuming
its credibility, and drawing all favorable inferences
from it, and will sustain the jury’s verdict if any
rational trier of fact could have found the essential
elements of the crime charged beyond a reasonable
doubt.
United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011)
(citation and emphasis omitted).
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To sustain a conviction for assaulting a federal
officer with a dangerous weapon in violation of 18 U.S.C. § 111,
the Government must prove that Alvarez used a dangerous weapon
to forcibly assault, resist, oppose, impede, intimidate, or
interfere with any designated federal officer while that officer
was performing official duties. 18 U.S.C. § 111(a)-(b).
Section 111 “does not proscribe reasonable force employed in a
justifiable belief that it is exerted in self-defense.” United
States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966).
“[T]he quantum of force which one may use in
self-defense is proportional to the threat which he reasonably
apprehends.” United States v. Black, 692 F.2d 314, 318 (4th
Cir. 1982). “[W]here a defendant charged with violating § 111
claims that he was unaware that the victim was a federal
officer, the question becomes: would the defendant have been
justified, because of the agent’s actions, in using force
against the agent had the latter, in fact, been a ‘civilian.’”
United States v. Hillsman, 522 F.2d 454, 460 (7th Cir. 1975).
Here, there was more than sufficient evidence to
establish that on April 11, Alvarez used force against the DEA
agents that was disproportionate to any reasonably apprehended
potential threat. Alvarez accelerated toward the car carrying
the two agents, even though their car was parked and even though
one of the agents had opened his door and begun to exit. There
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was no evidence that the agents displayed any weapons or called
out any threats. Because there was sufficient evidence to
support the jury’s finding that Alvarez acted with the requisite
criminal intent to support a conviction for assaulting a federal
agent, and sufficient evidence to disprove any allegation of
self defense, the district court did not err in denying
Alvarez’s motion for judgment of acquittal.
Third, Alvarez argues that the district court erred in
declining to include the entire jury instruction that he
requested. This Court “review[s] a district court’s decision
whether to give a jury instruction for abuse of discretion.”
United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010),
petition for cert. filed, 80 U.S.L.W. 3015 (U.S. Feb. 4, 2011)
(No. 10-1010).
A district court commits reversible error in refusing
to provide a proffered jury instruction only when the
instruction (1) was correct; (2) was not substantially
covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that
failure to give the requested instruction seriously
impaired the defendant’s ability to conduct his
defense.
Id. In determining whether the district court erred in
instructing the jury, this Court reviews the district court’s
jury instructions as a whole and in the context of the entire
charge. Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 191
(4th Cir. 2003).
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Here, Alvarez requested that the court include a jury
instruction first specifying that there may be cases where
“ignorance of the official status of the person assaulted or
resisted negates the very existence of criminal intent needed to
find the defendant guilty” and next providing an example. The
district court gave the instruction requested by Alvarez, except
for the part that set forth a specific example. We conclude
that the part of Alvarez’s requested jury charge setting forth a
specific example was substantially covered by the rest of the
jury charge and the district court did not commit reversible
error in declining to add it.
Fourth, Alvarez argues that the district court erred
in admitting evidence of his flight from law enforcement
officers eight days after the April 11 incident. “Evidence of
other crimes, wrongs, or acts is not admissible” if that
evidence is used to prove the character of the defendant “in
order to show action in conformity therewith.” Fed. R. Evid.
404(b). However, such evidence is admissible for other
purposes, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b). “Rule 404(b) is an
inclusionary rule, allowing evidence of other crimes or acts to
be admitted, except that which tends to prove only criminal
disposition.” Penniegraft, 641 F.3d at 574 (citation omitted).
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Whether a district court properly admitted evidence under Rule
404(b) is an evidentiary ruling that is reviewed for abuse of
discretion. United States v. Gray, 405 F.3d 227, 238 (4th Cir.
2005). An abuse of discretion occurs only when “the [district]
court acted arbitrarily or irrationally in admitting evidence.”
Penniegraft, 641 F.3d at 574.
Here, Alvarez’s flight from law enforcement officers
eight days after the April 11 incident was relevant to prove
Alvarez’s lack of mistake. Thus, because the evidence was both
relevant and not more prejudicial than probative, the district
court did not err in admitting it.
Fifth, Alvarez argues that the district court erred in
applying a four-level sentencing enhancement under U.S.
Sentencing Guidelines Manual (USSG) § 2A2.2(b)(2)(B) (2009), for
use of a vehicle as a dangerous weapon, on the ground that it
punished Alvarez twice for the same factor because the fact that
he had used a vehicle as a dangerous weapon had already been
incorporated into the base offense level for aggravated assault.
Alvarez acknowledges that this court has expressly authorized
this enhancement in this situation. United States v. Williams,
954 F.2d 204 (4th Cir. 1992). Accordingly, the district court
did not err in applying the enhancement.
Finally, Alvarez argues that the district court erred
in applying a three-level enhancement under USSG § 3A1.2(b).
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Typically, the district court’s determination that a sentencing
enhancement is warranted is a factual determination reviewed for
clear error. United States v. Thorson, 633 F.3d 312, 317 (4th
Cir. 2011). However, “when a party does not preserve an
argument in the district court, we review only for plain error.”
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Plain
error review is warranted in this case because although Alvarez
initially objected to the three-level enhancement under USSG
§ 3A1.2(a), counsel for Alvarez specifically withdrew that
objection. “To establish plain error, the appealing party must
show that an error (1) was made, (2) is plain (i.e., clear or
obvious), and (3) affects substantial rights.” Lynn, 592 F.3d
at 577. Even if we assume the district court erred, Alvarez has
failed to establish that the error affected his substantial
rights. The district court imposed a below-Guidelines sentence
and Alvarez has presented no evidence that the district court
would have sentenced him any more leniently had the USSG
§ 3A1.2(a) enhancement not applied.
Accordingly, we affirm Alvarez’s conviction and
sentence on Count One. We vacate the conviction on Count Two,
vacate the judgment, and remand for entry of an amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
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