USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1835
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
TAD A. PAGE,
Defendant, Appellant.
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No. 95-1836
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ALLEN J. ADAMS,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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R. Scott Miller, Jr., by appointment of the Court, for Allen J.
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Adams.
Peter Clifford, by appointment of the Court, for Tad A. Page.
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Rebecca K. Troth with whom Jessica Dunsay Silver, Deval L.
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Patrick, Assistant Attorney General, Jay P. McCloskey, United States
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Attorney, and John S. Gleason III, Assistant United States Attorney,
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were on brief for appellee.
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May 24, 1996
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ALDRICH, Senior Circuit Judge. Defendants Allen
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Adams and Tad Page pled guilty to three counts of conspiracy
and interference with the civil rights of others in September
of 1992. They now object to virtually every step of the
court's application of the Sentencing Guidelines and
underlying statutes to their offenses. We affirm.
According to pre-sentence reports accepted by the
court, in the early hours of September 19, 1992, Adams
accosted Ruben Gonzales, Oscar Luna and Emiliano Valenzuela
as they attempted to enter a convenience store, calling them
"f______ Mexicans" who should go back to Mexico where they
"belonged," and offering to send them back in a body bag.
Page joined Adams, who grabbed Page's handgun from inside his
truck, stuck it to Gonzales' temple and threatened to "blow
his head off." An employee called the police, whereupon
Gonzales and his companions drove off with a fourth friend
who had remained in their car. Page jumped in his truck and
followed, with Adams in the passenger seat and the gun
between them, and two cohorts riding in back. Two other
carloads of their friends joined the chase. Driving about 75
miles an hour, Page pulled up behind Gonzales' car, fired
seven shots into the air, and at Adams' urging, two more
directly into the back of the vehicle and two at the ground
behind it. One bullet struck Luna in the arm, another lodged
in the headrest behind Gonzales' head. Page then slowed and
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turned back. Luna was taken to a hospital shortly, treated
for a gunshot wound to his right upper arm and released
approximately 90 minutes later. He lost use of his arm and
was unable to work for three weeks, and continued to suffer
residual pain for some time.
Pursuant to a plea agreement, Adams and Page each
pled guilty to conspiracy to hinder others in the free
exercise of federally secured rights, in violation of 18
U.S.C. 241 (count I), racially motivated interference with
Gonzales' use of a public accommodation, in violation of 18
U.S.C. 245(b)(2)(F) and 2 (count II), and interference
with Luna's use of same, in violation of 18 U.S.C.
245(b)(4)(A) and 2 (count IV). In return, the government
dismissed the remaining counts charging interference with the
rights of the two other men, and use of a firearm in
connection with a crime of violence.
Defendants were sentenced July 21, 1995. The court
made the same sentencing calculations for both defendants, to
which neither objected. Applying USSG 2H1.3(a)(3),1 the
court determined that the underlying offense for both counts
II and IV was "aggravated assault," having determined that
both involved use of "a dangerous weapon with intent to do
bodily harm." See 2A2.2 and comment. (n.1). Allowing
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1. Section 2H1.3 has been deleted by consolidation with
2H1.1, effective Nov. 1, 1995, but was still operative at
the time of defendants' sentencing.
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enhancements for Luna's injury, 2A2.2(b)(3)(B), discharge of
a firearm, 2A2.2(b)(2)(A), and obstruction of justice,
3C1.1, it arrived at a combined offense level of 30,
deducted three for acceptance of responsibility, 3E1.1, for
a total offense level of 27. Page, with no prior
convictions, faced an imprisonment range of 70 to 87 months,
and Adams, who has a record, faced 78 to 97 months. The
court imposed 70 months on Page, and 88 on Adams, and
assessed each $370 in restitution.
The bulk of defendants' appeal proceeds on the
mistaken notion that the aggravated assault provision,
2A2.2, applies only if the victim suffered "serious bodily
injury," which they contend was not the case for either
count. Serious bodily injury, however, is only one of
several alternative bases for applying the aggravated assault
provision:
"Aggravated assault" means a felonious
assault that involved (a) a dangerous
weapon with intent to do bodily harm
(i.e., not merely to frighten), or (b)
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serious bodily injury, or (c) intent to
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commit another felony.
USSG 2A2.2, comment. (n.1). (Emphasis added.) Thus simple
intent to do bodily harm of any kind, without regard to the
degree actually suffered, if any,2 may support a finding of
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2. Under 2A2.2, degree of bodily injury is relevant only to
determining how many levels to add -- two for "bodily
injury," four for "serious bodily injury," and three for
something in between. See 2A2.2(b)(3). Defendants also
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aggravated assault and application of the far heftier base
offense level and enhancements than provided for under the
"minor assault" guideline that defendants would prefer the
court to apply. The court unassailably found that firing
multiple gunshots at an occupied and moving vehicle "is bound
to result in hitting a tire, gas tank, person, something that
can only be calculated to end up in bodily harm," and
therefore that both counts II and IV fit the aggravated
assault guideline. Defendants' effort to void this finding
by pointing out that the bullet that actually struck Luna was
one that had been aimed at the ground, and simply ricocheted
upward into the vehicle, does not advance their claim.
Neither the court nor the parties focussed,
however, on 2A2.2's additional requirement that the assault
be "felonious." The argument that count II, resulting in no
injury to Gonzales, is not "felonious" for the purpose of
applying 2A2.2 was not specifically articulated to the
district court. Because we find it was at least implicitly
raised and pursued by defendants' multiple efforts to attack
the propriety of applying 2A2.2 to count II, and the
government addressed the issue without contending review was
foreclosed, we reach it despite perhaps imperfect
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dispute the court's addition of four levels under this
provision, which we address post.
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preservation below.3
Our first question is, quite simply, what does the
guideline mean by "felonious?" Although commentary to 2A2.2
defines a host of terms and phrases, no definition for felony
or "felonious" is provided or referenced. Prior to enactment
of the Guidelines a felony had long been defined as "any
offense punishable by death or imprisonment for a term
exceeding one year." 18 U.S.C. 1 (June 25, 1948), repealed
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by Sentencing Reform Act of 1984, Pub.L. 98-473, Title II,
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218(1)(1), 98 Stat. 2027 (repeal effective Nov. 1, 1987).
The Guidelines perhaps obviated the necessity of 1, but
nowhere refute or replace its felony definition. In fact, a
provision unrelated to 2A2.2 defines a felony precisely
according to the repealed statute. See USSG 4A1.2(o). An
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intent to incorporate this pre-existing definition into the
Guidelines where appropriate thus seems clear. We conclude,
therefore, that "felonious," as used in 2A2.2, means
"punishable by death or a term of imprisonment exceeding one
year."
The penalty provision of 245(b) in force at the
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3. We note that if count II cannot be considered an
aggravated assault, defendants' combined offense level would
be no more than 25, yielding a guideline range of 57-71
months for Page, and 63-78 for Adams, permitting sentences of
up to 13 and 15 months less than they received, respectively.
Cf. United States v. Newman, 982 F.2d 665, 672 (1st Cir.
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1992), cert. denied, ___ U.S. ___, 114 S. Ct. 59, 126 L.Ed.2d
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28 (1993).
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time of the assaults provided that offenders
shall be fined not more than $1,000, or
imprisoned not more than one year, or
both; and if bodily injury results shall
be fined not more than $10,000, or
imprisoned not more than ten years, or
both; and if death results shall be
subject to imprisonment for any term of
years or for life.
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18 U.S.C. 245(b) (amended Sept. 13, 1994). Count II is
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therefore felonious only if it resulted in bodily injury.4
Gonzales himself suffered none, thus count II qualifies only
if Luna's gunshot wound can be said to have resulted from
defendants' violation of Gonzales' rights as well as Luna's.
According to defendants, the problem with this is two-fold:
it unjustifiably stretches the language of 245(b) and,
because Luna's injury already sustains increase in the
applicable punishment for count IV, runs afoul of the
prohibition on multiple punishments contained in the double
jeopardy clause of the Constitution.
We find nothing in the statutory language to
support reading the penalty provision of 245(b) to permit
enhancement only in cases of bodily injury to the intended
victim of the particular offense. Nor is there anything
indicating an intent to restrict penalty enhancement to a
single count when multiple counts aimed at several
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individuals end up causing but a single bodily injury.
4. There is no question that Luna's injury supports
enhancement for count IV.
First, it is plain from the structure of 245(b) that the
5. The Senate Judiciary Committee Report on the history of
penalty enhancement applies to each and every listed offense
the bill explained the graduated penalty provision as
follows:
that "results" in bodily injury, regardless of whether the
If no one is actually harmed, penalties
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victim of the particular offense was the one injured.5
are limited to a $1,000 fine and 1 year
imprisonment; if bodily injury results,
the maximum penalties are a $10,000 fine
and 10 years imprisonment; and if death
results . . .
S. Rep. No. 721, 90th Cong., 2d Sess. (Nov. 2, 1967),
reprinted in 1968 U.S.C.C.A.N. 1837, 1846. (Emphasis added.)
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Second, the unqualified phrase, "if bodily injury results,"
unambiguously signifies that there is no safe haven for a
perpetrator of aggravated assault against many that happens
to result in bodily injury only to one. Cf. United States v.
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Bass, 404 U.S. 336, 347-48 (1971). The court found that the
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offense behavior underlying both counts included two bullets
aimed directly at the car -- that only Luna was physically
injured is immaterial to the conclusion that the violations
of both Luna's and Gonzales' civil rights each "resulted" in
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the bodily injury sustained by Luna, rendering both counts
subject to penalty enhancement under 245(b). Count II is
therefore "felonious" for the purpose of applying USSG
2A2.2.
Defendants' claim that this reading
unconstitutionally subjects them to multiple punishments for
the same offense is also unavailing. There is no question
that the offenses in sub-sections (2)(F) and (4)(A) of
245(b), at least when committed against different
individuals, describe discrete and separately punishable
crimes, with higher sentences authorized for each offense
resulting in bodily injury (or death). The multiple
punishments prohibition of the double jeopardy clause "merely
prohibits a sentencing court from imposing a stiffer
punishment than the legislature intended." Catala Fonfrias
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v. United States, 951 F.2d 423, 425-426 (1st Cir. 1991)
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(citing Missouri v. Hunter, 459 U.S. 359, 366 (1983)), cert.
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denied, 506 U.S. 834 (1992). In Fonfrias, relying on both
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text and legislative history, we held that a penalty
provision identical to 245(b)6 clearly contemplated that a
single "result" could be the consequence of more than one
covered crime, and consequently upheld imposition of two
consecutive life sentences for a single death resulting from
defendant's commission of two separate offenses. Id. at 426.
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So, here, Luna's injury, the result of two separate offenses,
can support penalty enhancement for each without raising
double jeopardy concerns.
Defendants next complain of the court's refusal to
group all three counts together, which would have saved them
at least a two-level increase, see 3D1.4, but we are unable
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to discern anything out of step in the court's rote
application of the grouping guideline. See USSG 3D1.2 and
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comment. (n.5).
Defendants also attack the court's finding that
Luna's wound was a "serious bodily injury," which added four
to the offense level for count IV. See 2A2.2(b)(3)(B).
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Adams asserts, first, error of law in the court's use of the
Guideline definition, because it does not follow Congress'
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6. Section 245 was enacted along with the penalty
enhancement revisions to 241 and 242 considered in Catala
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Fonfrias, via the same 1968 bill. See Pub.L. 90-284, Title
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I, 101(a), Apr. 11, 1968, 82 Stat. 73.
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language used to define crimes and set minimum or maximum
sentences.7 There is no reason why the Guidelines may not
make their own classifications within the statutes, and hence
definitions which the courts must observe, so long as these
are not internally inconsistent or in violation of the
Constitution or a federal statute. See Stinson v. United
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States, 508 U.S. 36, 38 (1993). We see no such problem here.
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Second, both defendants claim clear error in the court's
factual determination that a bullet wound to the upper arm
which took the victim to the hospital (90 minutes) and left
him work-disabled for three weeks "constitute[d] the
impairment of a function of a bodily member," thereby falling
within the Guideline definition of what is serious. To
impair, generally, means to diminish or decrease. There is
no requirement of duration, nor does the Guideline definition
impose one with respect to this or any of the other examples
given. See Jarecki v. G.D. Searle, 367 U.S. 303, 307 (1961)
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("The maxim noscitur a sociis, that a word is known by the
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7. The Guidelines define "serious bodily injury" as:
injury involving extreme physical pain or
the impairment of a function of a bodily
member, organ, or mental faculty; or
requiring medical intervention such as
surgery, hospitalization, or physical
rehabilitation. As used in the
guidelines, the definition of this term
is somewhat different than that used in
various statutes.
USSG 1B1.1, comment. (n.1(j)).
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company it keeps, while not an inescapable rule, is often
wisely applied where a word is capable of many
meanings . . . ."). Whether impairment for a moment ranks as
serious, cf. United States v. Thompson, 60 F.3d 514, 516 (8th
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Cir. 1995) (unconsciousness from assault is impairment of
mental facilities), three weeks disability should be
sufficient. Cf. United States v. Moore, 997 F.2d 30, 37 (5th
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Cir. 1993) (bullet in leg, extremely painful, two weeks
disability; court did not designate which element was met);8
United States v. Reese, 2 F.3d 870, 879 (9th Cir. 1993)
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(fractured elbow, arm in a sling), cert. denied, ___ U.S.
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___, 114 S. Ct. 928, 127 L. Ed. 2d 220 (1994). We discern no
clear error. 18 U.S.C. 3742(e); United States v. Garcia,
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34 F.3d 6, 10 (1st Cir. 1994).
Defendants' remaining contentions have been
implicitly disposed of by the foregoing discussions, or do
not merit further reflection.
Affirmed.
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8. We note that court held two hours hospital emergency room
did not constitute "hospitalization." 997 F.2d at 37.
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