United States v. Donald C. Brigman

711 F. App'x 971
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 17, 2017
Docket16-12777 Non-Argument Calendar
StatusUnpublished

This text of 711 F. App'x 971 (United States v. Donald C. Brigman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Donald C. Brigman, 711 F. App'x 971 (11th Cir. 2017).

Opinion

PER CURIAM:

Donald Brigman appeals his 24-month sentence, imposed following his guilty plea to one count of assaulting his spouse by strangulation and attempted strangulation, in violation of 18 U.S.C. § 113(a)(8). Mr. Brigman argues that the district court committed impermissible double counting by applying certain increases to his offense level. He also argues that his sentence is unreasonable. Upon review of the record and consideration of the parties’ briefs, we affirm.

I

Because we write for the parties, we assume their familiarity with the underlying record and recite only what is necessary to resolve this appeal.

On October 17, 2014, Mr. Brigman went to an Air Force base where his wife, S.C., worked and engaged in a verbal altercation with her. S.C. told Mr. Brigman they would talk after she returned home. When S.C. returned home late that night, an argument ensued and Mr. Brigman forcefully pushed S.C.’s head into a shower wall. He placed S.C. in a headlock and pulled her out of the shower, continuing to choke her for approximately 20 seconds. When S.C. attempted to leave the bathroom, Mr. Brigman slammed her head against the door. He physically prevented S.C. from leaving the home or placing a call, and again choked her for approximately 10 to 15 seconds, telling her he was going to kill her. He then made her take prescribed medication that made her sleepy, and laid in bed with her until she fell asleep. S.C. suffered minor scratches and bruising, a cervical spine strain, and a contusion.

. Mr. Brigman pled guilty to one count of assaulting his spouse by strangulation and attempted strangulation, in violation of 18 U.S.C. § 113(a)(8). On the government’s motion, the district court dismissed a second count of assault by striking, beating, and wounding, in violation of 18 U.S.C. § 113(a)(4).

The PSI recommended a total adjusted offense level of 17 and a criminal history category of I, resulting in an advisory guideline range of 24 to 30 months’ imprisonment. The guideline range included a base offense level of 14 under U.S.S.G. § 2A2.2, a three-level increase under § 2A2.2(b)(3)(A) because S.C. sustained bodily injury, and another three-level increase under § 2A2.2(b)(4) because the offense involved strangling, suffocating, or attempting to strangle or suffocate a spouse. The PSI also recommended a three-level reduction based on Mr. Brig-man’s acceptance of responsibility and cooperation.

Mr. Brigman objected to the PSI, arguing that the two increases constituted double counting and that he should have received a significantly lower sentence. The district court rejected Mr. Brigman’s objections and sentenced him to 24 months’ imprisonment.

II

Mr. Brigman argues that the three-level increases under §§ 2A2.2(b)(3)(A) and (b)(4) constituted double counting because the commentary to § 2A2.2 defines aggravated assault as an assault that could involve serious bodily injury as well as one that could involve strangling or suffocating. Thus, he says, the base offense level under § 2A2.2(a) already incorporated the concerns addressed by the special offense characteristics . set forth in §§ 2A2.2(b)(3)(A) and (b)(4).

We review a claim of double counting under the guidelines de novo. See United States v. Webb, 665 F.3d 1380, 1382 (11th Cir. 2012). “Impermissible double counting occurs only when one part of the [guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the [guidelines.” Id. Double counting a factor is permissible if the Sentencing Commission “intended that result and each guideline section in question concerns conceptually separate notions relating to sentencing.” Id. We presume that, absent a specific direction to the contrary, the Sentencing Commission “intended to apply separate sections cumulatively” and therefore “a defendant asserting a double counting claim has a tough task.” Id.

The applicable guideline provision for violations of 18 U.S.C. § 113(a)(8) is § 2A2.2, which covers aggravated assault. It specifically provides for a number of increases in the base offense level for certain special offense characteristics, including a three-level increase for non-serious and non-permanent bodily injury, see § 2A2.2(b)(3)(A), and a three-level increase for offenses involving strangling, suffocating, or attempting to strangle or suffocate a spouse or partner, see § 2A2.2(b)(4).

Although the commentary to this section defines “aggravated assault” to include assaults that involve serious bodily injury and strangling, suffocating, or attempting to strangle or suffocate, it also expressly contemplates increasing a defendant’s offense level, based on the listed special offense characteristics, including bodily injury and strangling or suffocating a spouse. The guidelines do not direct courts to forego applying the base offense and the special offense characteristics together. Indeed, § 2A2.2 explicitly allows for the special offense characteristics to be applied cumulatively, subject only to a cumulative maximum of 12 levels for §§ 2A2.2(b)(2), (3), and (4). We therefore presume that the Sentencing Commission intended these provisions to apply cumulatively. See Webb, 665 F.3d at 1382. Moreover, the special offense characteristics applied here each address conceptually separate notions — namely, the degree of injury a victim suffered and the harm specific to strangling or suffocating a spouse or partner. Accordingly, Mr. Brigman has not met his “tough task” of demonstrating that the district court impermissibly committed double counting by applying increases under §§ 2A2.2(b)(3)(A) and (b)(4).

Ill

To the extent that Mr. Brigman argues that his sentence was procedurally unreasonable, we review such a claim for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “[We] must ... ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the [guidelines range, ... failing to consider the [18 U.S.C.] § 3553(a) factors, ... or failing to adequately explain the chosen sentence[.]” Id. “The party challenging the sentence has the burden of showing the sentence to be procedurally unreasonable.” United States v. Hill, 783 F.3d 842, 844 (11th Cir. 2015).

Mr. Brigman has not shown that the district court committed significant procedural error. As discussed, the district court properly calculated Mr. Brigman’s guideline range and correctly applied the increases under §§ 2A2.2(b)(3) and (b)(4).

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Related

Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Reginald Webb
665 F.3d 1380 (Eleventh Circuit, 2012)
United States v. Francisco Cubero
754 F.3d 888 (Eleventh Circuit, 2014)
United States v. Joshua Thomas Hill
783 F.3d 842 (Eleventh Circuit, 2015)

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Bluebook (online)
711 F. App'x 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donald-c-brigman-ca11-2017.