Filed: Nov. 20, 2020
Latest Update: Dec. 05, 2020
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-1262
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UNITED STATES OF AMERICA
v.
RICHIE WHEELER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:18-cr-00485-001)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 14, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: November 20, 2020)
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OPINION*
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BIBAS, Circuit Judge.
While trying to evade arrest, Richie Wheeler rammed his car into an SUV. Three
officers were inside. The sentencing court reasonably found that this ramming was
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
intentional, that two law-enforcement enhancements applied, that Wheeler’s three counts
of assault should not be grouped, and that a bottom-of-the-range sentence was fitting. We
will affirm.
I. BACKGROUND
Wheeler had an outstanding arrest warrant for gun possession stemming from a shoot-
ing. In 2018, a federal task force was seeking to arrest him on the warrant. Task-force
officers spotted him in his car. The officers, driving unmarked vehicles, turned on their
emergency lights. As they surrounded his car, Wheeler tried to evade them but crashed into
a parked car. Now surrounded, he rammed his car into one of the unmarked vehicles, an
SUV with three officers inside. That damaged Wheeler’s car so he could no longer drive
it. Wheeler pleaded guilty to three counts of assaulting the officers with a dangerous
weapon, 18 U.S.C. § 111(a)(1), (b). The District Court sentenced him to three concurrent
terms of ten years each. We review the District Court’s factual findings for clear error and
its reading of the Sentencing Guidelines de novo. United States v. Fountain, 792 F.3d 310,
318 (3d Cir. 2015).
II. THE DISTRICT COURT CALCULATED WHEELER’S SENTENCE PROPERLY
A. The court properly applied the statutory enhancement and the aggravated-
assault guideline
First, Wheeler claims that the District Court improperly raised his sentence above the
statutory maximum based on facts that it found. Not so. Wheeler pleaded guilty to three
counts of assaulting a federal officer under 18 U.S.C. § 111(a)(1) and (b). Subsection (b)
requires that the defendant “use[ ] a deadly or dangerous weapon” in the assault. Wheeler
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did: a car counts as a dangerous weapon because it can easily injure or kill. Wheeler now
argues that he did not intend to use the car as a dangerous weapon or to injure the officers.
But § 111 is a general-intent statute. Wheeler did not have to “specifically intend to use a
car as a deadly weapon to violate § 111(b).” United States v. Gumbs, 964 F.3d 1340, 1350
(11th Cir. 2020). Instead, he had to intend to use the car and do so “in such a manner that
it [wa]s ‘capable of causing serious bodily injury or death to another person.’ ”
Id. (quoting
United States v. Arrington,
309 F.3d 40, 45 (D.C. Cir. 2002)). He admitted that he did. So
he faced a maximum sentence of twenty years’ imprisonment on each count. § 111(b). The
District Court sentenced him to ten years’ imprisonment on each count, well below that
maximum.
Second, the District Court properly found facts in applying the aggravated-assault
guideline. Under the guideline, an aggravated assault includes “a felonious assault that in-
volved a dangerous weapon with intent to cause bodily injury . . . with that weapon.”
U.S.S.G. § 2A2.2 cmt. n.1(A). In his plea, Wheeler did not concede that he intended to
cause bodily injury. So, he claims, the District Court could not find that he intended to
injure the officers with his car. But in applying guidelines, sentencing courts may find facts
by a preponderance of the evidence and use them to raise sentences to a level below the
statutory maximum. United States v. Grier,
475 F.3d 556, 561–63 (3d Cir. 2007). That is
what happened here.
Third, the District Court reasonably found that Wheeler had intentionally crashed into
the officers’ SUV. He claims that he was trying only to evade the officers and did not mean
to injure them. So, he argues, his conduct could not meet the guideline’s definition of
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aggravated assault. The District Court was unpersuaded, as we are. As the officers closed
in on him with their emergency lights flashing, he tried to flee but crashed into a parked
car. Wheeler stipulated: “After becoming aware that law enforcement officers were at-
tempting to arrest him, WHEELER drove [his car] in the direction of vehicles being used
by the law enforcement officers, and struck a vehicle occupied by three federal law en-
forcement officers attempting to make the arrest.” App. 30. One can try to flee from officers
without driving in their direction. So the District Court did not clearly err in finding that he
intended to drive “straight at law enforcement” and ram them with his car. App. 62.
Because the court reasonably found that the assault was aggravated, it properly applied
the aggravated-assault guideline instead of the one for obstructing or impeding officers.
See U.S.S.G. § 2A2.4(c)(1).
B. There was no impermissible double-counting
The District Court applied two guidelines enhancements because the victims were law-
enforcement officers. Under the aggravated-assault guideline, it added two points for his
specific offense: assaulting a federal officer. U.S.S.G. § 2A2.2(b)(7). It also gave him a
separate six-point enhancement for victimizing law-enforcement officers. § 3A1.2(c)(1).
That was proper. Sentencing courts may apply multiple overlapping guidelines unless the
guidelines expressly forbid double-counting. United States v. Seibert, 971 F.3d 396, 400
(3d Cir. 2020). Here, the guidelines forbade the victim enhancement only if the court ap-
plied the guideline for obstructing or impeding officers. § 3A1.2(c)(1) & cmt. n.2. Because
it did not, the court properly applied the victim enhancement. § 2A2.2(b)(7) & cmt. n.4.
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Wheeler also argued that he did not create “a substantial risk of serious bodily injury”
to the officers, as needed for the victim enhancement. § 3A1.2(c)(1). But he rammed their
SUV hard enough to disable his own car. The facts supported the enhancement.
C. The District Court was not required to group the three counts in calculating
the combined offense level
When calculating the combined offense level, the District Court treated each count to
which Wheeler pleaded guilty as its own group. Because he pleaded guilty to three counts,
the court added three points to his offense level. U.S.S.G. § 3D1.4. Wheeler suggests that
the counts should have been grouped together and run concurrently. But the grouping rules
exclude offenses against the person, including assault, from grouping. § 3D1.2(d) (exclud-
ing almost all offenses in Chapter Two, Part A).
Next, Wheeler argues that he did not know that the SUV contained three separate
officers. But he pleaded guilty to three separate charges of assault, stipulated that he was
aware that officers (plural) were trying to arrest him, and stipulated that he drove toward
those officers.
Wheeler also claims that the only direct victim was the driver. The other two, he says,
should have been excluded as indirect or secondary victims. And none was injured. But all
the officers in the car were “directly” affected and “identifiable” victims. § 3D1.2 cmt. n.2.
And assault with a dangerous weapon is punishable even if the victim suffers no injury.
The District Court properly sentenced him based on all three officers.
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III. WHEELER’S SENTENCE WAS REASONABLE
Lastly, Wheeler argues that the District Court weighed the sentencing factors improp-
erly and imposed a sentence that was substantively unreasonable. We review for abuse of
discretion. Gall v. United States, 552 U.S. 38, 46 (2007). We will affirm a sentence as
substantively reasonable “unless no reasonable sentencing court would have imposed the
same sentence on that particular defendant for the reasons the district court provided.”
United States v. Tomko,
562 F.3d 558, 568 (3d Cir. 2009) (en banc).
The parties dispute whether Wheeler preserved a procedural objection. Even if he did,
the sentence was both procedurally and substantively reasonable. The District Court con-
sidered the factors in 18 U.S.C. § 3553(a). It discussed the seriousness of his crime and
criminal history, but also weighed his “many positive attributes.” App. 65. It then sentenced
him to ten years total, the bottom of the guidelines range and well below the sixty-year
statutory maximum. That judgment was reasonable, and we will not disturb it.
*****
The District Court reasonably found facts and weighed the sentencing factors. After
considering Wheeler’s extensive criminal history and the severity of his aggravated
assaults on officers, it reasonably sentenced him to the bottom of the guidelines range. We
will affirm.
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