United States v. Jonathan Monshower

United States Court of Appeals
For the Eighth Circuit
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No. 16-3996
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jonathan J. Monshower
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 18, 2017
Filed: September 28, 2017
[Unpublished]
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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jonathan Monshower appeals the district court's1 sentence of 108 months,
following his guilty plea to being a felon in possession of a firearm in violation of 18
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
U.S.C. §§ 922(g)(1) and 924(a)(2). Monshower specifically challenges a six-level
enhancement under United States Sentencing Guidelines § 3A1.2(c)(1)2 for assaulting
an official victim–his arresting officer. The testimony at the sentencing hearing
established the following factual basis for the enhancement.
After responding to a traffic accident wherein Monshower had run into a
parked car, Officer Evan Bateman observed Monshower sitting in his car, nervous
and sweating profusely. Bateman directed Monshower to get out of the car, and as
Monshower did so, Bateman observed that Monshower was moving in an awkward
and slow manner, which aroused Bateman's suspicions. Bateman decided to pat
down Monshower for weapons and discovered a handgun in Monshower's waistband.
At that point, Monshower also grabbed for the firearm in the waistband, resulting in
both Bateman and Monshower having a hand on the firearm. A struggle ensued, and
Bateman believed that Monshower was attempting to turn toward him and draw the
firearm. Bateman took Monshower to the ground, so that Monshower's stomach was
on the ground, with the firearm pinned underneath Monshower, and both men still
had a hand on the firearm. Ultimately, Bateman drew his own firearm and pointed it
at the back of Monshower's head until Monshower stopped struggling. Another
officer assisted and pulled Monshower's arm away from the firearm.
The district court credited Bateman's testimony at the sentencing hearing,
finding that Bateman's belief that Monshower was attempting to grab his gun and
threaten or shoot Bateman was a reasonable interpretation of the events at that
moment by an officer with Bateman's background and experience. With the
application of the six-level enhancement, Monshower's Guidelines range was 84 to
2
Section 3A1.2(c)(1) provides for a six-level enhancement to the base offense
level for any defendant who, "knowing or having reasonable cause to believe that a
person was a law enforcement officer, assaulted such officer during the course of the
offense or immediate flight therefrom" and did so "in a manner creating a substantial
risk of serious bodily injury."
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105 months. However, citing the § 3553(a) factors, most specifically the need to
protect the public and the need for deterrence (because Monshower had previously
assaulted a law enforcement officer and committed the current crime while on parole),
the district court varied upwards to a sentence of 108 months. The district court also
indicated that even if it had not added the six-level official-victim enhancement, 108
months was the sentence it would have arrived at, given all of the circumstances.
Reviewing de novo, we find that the district court's factual findings were not
clearly erroneous and that it correctly applied the official-victim enhancement. See
United States v. Hill, 583 F.3d 1075, 1077, 1078-80 (8th Cir. 2009) (applying de
novo standard of review and affirming application of the official-victim enhancement
under sufficiently similar facts involving a defendant, fleeing a car accident scene,
who turned toward the chasing officer while trying unsuccessfully to obtain a weapon
from his waistband); see also United States v. Olson, 646 F.3d 569, 572, 574 (8th Cir.
2011) (affirming application of the official-victim enhancement and defining conduct
that was sufficiently assaultive, based upon the common law definition of assault, to
qualify for the enhancement). And, even if it the enhancement should not have
applied, the district court indicated its intent to impose its chosen sentence, making
any error harmless. United States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016).
Finally, the district court did not abuse its discretion by imposing a substantively
unreasonable sentence. United States v. Thibeaux, 784 F.3d 1221, 1227 (8th Cir.
2015) (standard of review). Accordingly, we affirm.
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