United States v. Lee

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1572



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                           CHARLES LEE,

                       a/k/a CHARLES HEARD,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Richard G. Stearns, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Miriam Conrad, Assistant Federal Defender, Federal Defender

Office, with whom Stephanie A. Jirard, Assistant Federal Defender,

was on brief for appellant.

     Diana K. Lloyd, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the

United States.


December 14, 1999


BOUDIN, Circuit Judge.  This is an appeal by Charles Lee

from his sentence imposed after he pled guilty to being a felon in

possession of a firearm and ammunition.  18 U.S.C.  922(g)(1)

(1994).  It presents a narrow, but difficult, issue under the

Sentencing Guidelines as to the meaning of the term "assault" in a

specific context.  The facts are taken from the undisputed portions

of the presentence report, the testimony at the sentencing hearing,

and the district court's findings.  See, e.g., United States v.

Voccola, 99 F.3d 37, 43 (1st Cir. 1996).

  On April 26, 1998, Sergeant Bulman of the Boston Police 

Department assisted in a traffic stop of a car in which Lee was a

passenger.  Approaching the car, Bulman saw that Lee had a large

bulge in his shirt above his waist; thinking that Lee might be

armed, Bulman ordered Lee out of the car.  Lee exited but then

sought to escape, striking both Bulman and another officer in the

chest as he attempted to get past them.  Lee thrashed about as

three or four officers fought to subdue him and repeatedly reached

for his waist area; the officers screamed to each other that Lee

was reaching for his waist and they sought to grab his hands. 

After a minute or two, the officers handcuffed Lee and found a

loaded gun in his front waistband.

  After his indictment and plea of guilty to being a felon

in possession, Lee was sentenced on January 11, 1999.  At

sentencing, the government sought a three-level upward adjustment

for Lee under U.S.S.G.  3A1.2(b).  That subsection, designed to

protect an "Official Victim," provides for such an increase where

    during the course of the offense or immediate

  flight therefrom, the defendant . . . knowing 

  . . . that a person was a law enforcement . .

  . officer, assaulted such officer in a manner

  creating a substantial risk of serious bodily

  injury.



The district court found that the "pushing and shoving" did not

create a risk of serious bodily injury to a trained police officer

but that Lee's efforts to reach for his gun did create apprehension

and a substantial risk of such an injury.

  Accordingly, the court made the three level adjustment,

leading to a guideline range of 51 to 63 months.  However, because

Lee was already subject to a related state sentence, the court

imposed a consecutive sentence of only 42 months.  U.S.S.G. 

5G1.3.  Lee now appeals from his sentence, challenging only the

three level adjustment.  Since the government does not suggest

otherwise, we assume for present purposes that Lee's sentence might

have been lower if the three-level adjustment had not been made.

  The district court's factual findings, so far as they go,

cannot be impeached under the clearly erroneous standard that

applies to them.  United States v. Freeman, 176 F.3d 575, 578 (1st

Cir. 1999).  It is evident that Lee was reaching for his gun; apart

from what the officers saw him doing, he himself told one of the

officers later that he had been trying to get his gun in order to

throw it away.  The officers' apprehension was obvious from their

shouts and from testimony by Bulman.  And whatever Lee's purpose,

his efforts to seize his gun did create a substantial risk of

bodily injury, whether from accidental discharge or the threat of

fire from the police.  See United States v. Weaver, 8 F.3d 1240,

1245-46 (7th Cir. 1993).

  There is thus no doubt that Lee's conduct satisfied most

of the requirements of the guideline, including "immediate flight,"

knowledge that the officers were police, and the creation of "a

substantial risk of serious bodily injury."  But the district court

made no finding that Lee had a purpose to shoot at the officers

(his own hearsay statement was to the contrary) or to frighten them

(there is no evidence on the point).  The question, then, is

whether the "assault" requirement of the adjustment is satisfied in

this case, the principal doubt revolving around the scienter

requirement for assault. 

  The district court believed that the term "assault" in

the guideline should be read as a reference to common law criminal

assault.  While the drafters may not have had this precise question

in mind, we think that generally speaking this is the right

construction; "assault"  is a standard common law concept and no

other definition has been adopted by the guideline or commentary,

either explicitly or by cross-reference.  Two possibilities should

nevertheless be mentioned.

  First, there is a federal statute that includes as a

federal crime "assault" on a federal officer.  But the statute more

broadly encompasses the actions of anyone who "forcibly assaults,

resists, opposes, impedes, intimidates, or interferes with"

specified federal officers.  18 U.S.C.  111(a)(1) (1994).  And the

statute itself does not define the term "assault," nor is it clear

that the case law interpreting the statute construes the term in

any way that would assist us in resolving the matter before us.

  Second, a somewhat stronger case could be made for

looking instead to U.S.S.G.  2A2.2, which defines in some detail

the concept of aggravated assault for purposes of prescribing the

offense level for the most serious of the various assaults covered

by federal statutes.  The argument for looking to this definition

is that U.S.S.G.  3A1.2(b), with which we are primarily concerned,

says in the commentary that the guideline applies "in circumstances

tantamount to aggravated assault."  U.S.S.G.  3A1.2, comment.

(n.5).  But it turns out that the aggravated assault concept is

slightly different and would not in any event resolve the problem

before us.

  Aggravated assault is defined as a "felonious assault"

that involves either (a) use of a dangerous weapon with intent to

do bodily harm, or (b) serious bodily injury, or (c) an intent to

commit another felony.  U.S.S.G.  2A2.2, comment. (n.1).  Lee

urges the use of this definition in interpreting the guideline at

issue here because he falls outside of the first two categories,

forgetting that he may qualify under the third.  Even so, the

question remains whether his conduct was "felonious assault" at

all, and on this issue--here, primarily turning on the scienter

required for assault--the aggravated assault guideline and its

commentary provide no answer.

  That guideline is probably of most help in illuminating

the separate requirement in  3A1.2(b) that the assault create "a

substantial risk of serious bodily injury"; conduct of the (a) and

(b) types would usually satisfy the risk-of-harm requirement

(although the (c) category conduct does not correspond to anything

in our own guideline).  That may be all the commentary means in

saying that the conduct triggering the three level adjustment is

"tantamount" to aggravated assault.  In all events, "tantamount"

does not mean "identical"; and in this case Lee's conduct clearly

presents the necessary risk of harm.

  This brings us back to the question whether Lee's conduct 

did constitute "assault" as measured by common law standards. 

Surprisingly, the answer is far from clear.  Common law assault

embraces two different crimes: one is attempted battery, that is,

an intended effort to cause bodily harm to another which falls

short of success (an example would be striking at a police officer

but missing), regardless of whether the intended victim knows of

the attempt.  2 LaFave & Scott, Substantive Criminal Law  7.16(a),

at 313-14 (1986).  Here, the district court made no finding that

Lee intended to shoot the police officers; and it is not clear that

the evidence would readily lend itself to such a finding unless the

judge discredited Lee's own statement as to his intent.

  The other branch of assault is an act which is intended

to, and reasonably does, cause the victim to fear immediate bodily

harm; such "menacing" constitutes assault even if no physical harm

is attempted, achieved, or intended.  2 LaFave & Scott, supra, 

7.16(b), at 315-17.  An example would be a bank robber pointing a

gun at a teller.  Here, Bulman testified that Lee's efforts to free

his gun did cause Bulman fear--quite reasonably so, in our view--

and the district judge so found.  Less certain is what is required

as to Lee's "intent" to cause fear--and how the facts and evidence

as to his intent stack up against that requirement.

  Unfortunately, the scienter requirement for common law

assault is blurred by confusion and contradiction.  For both

branches of assault (and the authorities often do not distinguish),

the most common formulation--that "intent" is required--relies on

a term notoriously unclear in distinguishing between "purpose" to

cause a result and mere "knowledge" of ordinary consequences.  See

Model Penal Code  2.02(2) & comment 2, at 233-36 (1985).  These

two notions correspond, at least roughly, to what common law judges

called specific and general intent, see United States v. Bailey,

444 U.S. 394, 405 (1980), and some of the cases and commentaries on

assault use these terms (or more modern counterparts).  But the

cases and commentaries conflict as to which is required for

assault.

   This is not altogether surprising.  In the kind of

 assault by menace case likely to be prosecuted, the defendant

 usually (1) does have a purpose to cause fear or (2) is so aware

 that his actions will cause fear--and is otherwise so blameworthy-

 -that no one much troubles about his lack of purpose.  The perfect

 example of this blurring of specific and general intent is the

 criminal who flees in a car and drives straight at a police

 officer standing in his way; it is normally hard to tell whether

 the criminal had a purpose to scare the officer or merely an

 indifferent awareness of the threat, incidental to an overriding

 aim to escape.

   What is telling is that in several such cases (obviously

 the facts vary from cases to case) courts have imposed the three-

 level assault adjustment we are considering, while in several

 others the courts have applied only a two-level adjustment for

 reckless endangerment during flight, U.S.S.G.  3C1.2; often this

 choice has been made without much attention to the common law

 technicalities of assault or even an awareness of the issue. 

 Thus, while we still think that the common law definition of

 assault should generally govern the guideline whenever it supplies

 an answer, that definition does not clearly resolve the question

 what degree of scienter is required here:  awareness of

 consequences or something more purposeful.

   In the end, we think that the policy of this guideline--

 to protect official victims--embraces the case where an escaping

 criminal drives straight at a police officer, knowing him to be

 there, regardless of whether the criminal desires to hit him; so

 long as the criminal has ample reason to know that fear will be

 caused, the lack of purpose to cause fear should not matter.  At

 least one case in this circuit may implicitly take this view, see

 Garcia, 34 F.3d at 12-13; others are consistent; and at least some

 judges who applied the reckless endangerment adjustment were

 apparently not asked to consider the assault adjustment.  See note

 3 above. 

   Even if mere knowledge of consequences is enough, and we

 hold that it is for this guideline adjustment, this does not quite

 resolve our case.  One might argue that Lee's effort to draw his

 gun while struggling with the police does not entail, or at least

 necessarily entail, his awareness that his conduct was practically

 certain to alarm the officers.  But here Lee knew that the police

 were shouting about his efforts to reach his gun and trying to

 stop him.  While awareness is perhaps a matter of degree, this

 "feedback" from the "official victims" during the assault itself

 takes the case pretty far up the scale and justifies the

 adjustment.

   Two further comments are in order.  The first is that the

 line between assault under this guideline and reckless

 endangerment under section 3C1.2 is often going to be a matter of

 degree.  Provided that there is no clear error of law,  we are

 very likely to sustain the choice of the district judge, who has

 the best feel for the factual subtleties involved.  The choice is

 not all that different from distinguishing between a minor and a

 minimal participant.  U.S.S.G.  3B1.2; United States v. Gonzalez-

 Soberal, 109 F.3d 64, 73 (1st Cir. 1997).

   The other, implicit in what has already been said, is

 that at best Lee could have gotten no more than a one level

 downward adjustment out of this appeal; if the assault adjustment

 did not apply in this case, the reckless endangerment guideline

 certainly would.  This would have reduced his guideline range from

 51-63 months to 46-57 months; as noted, his federal sentence was

 in fact 42 months.  In other words, it is at least possible that

 victory in this very well argued appeal would not have made any

 difference to Lee's sentence.

   Affirmed.