United States v. Bassil

932 F.2d 342
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 6, 1991
DocketNos. 90-5678 to 90-5682 and 90-5687
StatusPublished
Cited by11 cases

This text of 932 F.2d 342 (United States v. Bassil) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bassil, 932 F.2d 342 (4th Cir. 1991).

Opinion

WILKINSON, Circuit Judge:

Appellants, six inmates at the Lorton Reformatory, were convicted and sentenced for various offenses committed during a prison riot. All of the appellants contest their convictions. We affirm these convictions. Two of the appellants, Derrick Brown and William Smith, also challenge their sentences. We affirm Brown’s sentence but remand Smith’s case for re-sentencing for the reasons expressed herein.

I.

On March 28, 1989 around 3:00 a.m., correctional officers at the Lorton Reformatory responded to a disturbance in the B-wing of Dormitory Three. An inmate, Marlon Blake, had apparently been assaulted by other inmates. The officers assembled the inmates from B-wing in the dormitory’s day room. Blake identified Donnell Hunter and another inmate as his assailants.

Captain Jones, supervisor of the officers, ordered the two assailants to be removed from the dormitory. Hunter backed away from the officers. At that time, another inmate, William Smith, began shouting that the officers had the wrong men and that the officers were not going to take any inmates out of the dormitory. Captain Jones attempted to calm Smith, but Smith had to be forcibly removed from the area. Jones also approached Hunter in an attempt to persuade him to leave the dormitory peacefully. Hunter responded by punching Jones in the face causing him to lose consciousness.

Meanwhile, other B-wing inmates had begun yelling at the officers and throwing objects. For example, Derrick Brown told the officers to “get the hell out” of the dormitory and stood menacingly over Jones after he had been knocked to the floor unconscious. In addition, Brown, Richard Bassil, and Irvin Bond hurled chairs at the officers. Inmate Marcus Jay apparently shouted obscenities at the officers and announced his refusal to leave the day room. The twelve corrections officers deployed to B-wing were eventually able to regain control of the area but not before six officers were injured in the confrontation with approximately forty inmates.

Hunter, Smith, Brown, Bassil, Bond, and Jay were indicted for their actions during the March 28 melee. A jury convicted these defendants on a variety of charges which depended on the individual defendant’s level of participation in the riot. The charges included resisting a correctional officer and assaulting an officer with a dangerous weapon in violation of D.C.Code Ann. §§ 22-505(a) & 505(b), rioting while carrying a dangerous weapon in violation of 18 U.S.C. § 13 (assimilating Va.Code Ann. § 18.2-405), and injuring a person during a riot in violation of 18 U.S.C. § 13 (assimilating Va.Code Ann. § 18.2-414). The defendants were sentenced to additional prison terms ranging from 12 to 100 months.

All six of the defendants now appeal their convictions. Smith and Brown also challenge their sentences. We shall address the claims related to appellants’ convictions and then turn to the sentencing issues.

II.

Appellants Hunter, Smith, and Jay challenge their convictions for violating D.C.Code Ann. § 22-505(a) (1990). Section 22-505(a), in pertinent part, provides that a [345]*345person has committed a felony if he “without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates or interferes with ... any officer or employee of any penal or correctional institution ... while engaged in or on account of the performance of his official duties.” Appellants contend that such conduct as refusing to obey an order to leave the premises, shouting obscenities at the correctional officers, or merely gesturing in a menacing fashion is not within the ambit of the statute because it is not forcible. They contend further that the district court erred by failing to instruct the jury that force is an essential element of a § 22-505(a) offense.

Appellants acknowledge that force is nowhere mentioned in the statute. They point, however, to 18 U.S.C. § 111 (1988), which deals with resistance to certain federal officers in the performance of their duties, and from which they contend § 22-505(a) is derived. Because § 111 explicitly refers to forcible resistance, appellants reason that force must also be a necessary element of a § 22-505(a) violation. The answer to this contention lies in the plain language of the statutes: the federal statute refers to force and the District of Columbia statute does not. We decline to usurp the legislative function by reading a requirement of forcible resistance into the latter enactment. Respect for the legislative function is particularly appropriate here because the District of Columbia statute has been amended on at least four occasions, thus providing ample opportunities for force to be included as an element of the offense if such was the intent.

Jay, Smith, and Hunter further argue that the cases under section 22-505(a) involve the use of force. While this may be true, it does not convert force into an essential element of the crime. It is quite possible, for example, to impede or interfere with an officer without actually using force. See Long v. United States, 199 F.2d 717, 719 (4th Cir.1952).

Jay contends that even if force is not an element of a § 22-505(a) offense, his actions do not meet the remaining requirements of the statute. After reviewing the record, we conclude that sufficient evidence exists to establish that Jay impeded and interfered with correctional officers as they attempted to regain control of the dormitory.1

III.

We next turn to the issues of sentencing.

A.

Derrick Brown contends that the district court erred by sentencing him under U.S.S.G. § 2A2.2 because his conduct did not amount to aggravated assault. The application note to § 2A2.2 defines aggravated assault as “a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten).” The jury convicted Brown of using a deadly weapon both during a riot and to assault a correctional officer, based in part on the testimony of a number of officers that Brown threw a chair in their direction. The district court could reasonably conclude that defendant’s intent in throwing the chair was to cause harm to the officers rather than merely frighten them.

In the alternative, Brown contends that the court erroneously increased his offense level under § 2A2.2(b)(3)(A) because his assault did not cause bodily inju[346]*346ry. While it may be uncertain whether the chair thrown by Brown caused a specific injury, it is undisputed that Brown participated in and aided a riot in which assaults occurred that caused bodily injuries. Because he is accountable for this harm under the Guidelines, see U.S.S.G. § 1B1.3, the increase in Brown’s offense level was warranted.

B.

William Smith claims that the court erred in sentencing him as a career offender under U.S.S.G. § 4B1.1.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
932 F.2d 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bassil-ca4-1991.