United States v. Page

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1835



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                     TAD A. PAGE,



                                Defendant, Appellant.



                                _____________________



        No. 95-1836



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                   ALLEN J. ADAMS,



                                Defendant, Appellant.



                                 ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Selya, Circuit Judge.
                                         _____________



                                 ____________________



____________________


R. Scott  Miller, Jr., by appointment  of the Court,  for Allen J.
            _____________________

        Adams.

            Peter Clifford, by appointment of the Court, for Tad A. Page.
            ______________

            Rebecca  K.  Troth  with  whom  Jessica  Dunsay  Silver, Deval  L.
            __________________              _______________________  _________

        Patrick, Assistant  Attorney General, Jay P.  McCloskey, United States
        _______                               _________________  _____________

        Attorney, and John  S. Gleason III, Assistant  United States Attorney,
        ________      ____________________

        were on brief for appellee.



                                 ____________________



                                     May 24, 1996

                                 ____________________



ALDRICH,  Senior Circuit  Judge.   Defendants Allen
                                _____________________



            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)
                                                         __

                      serious bodily injury,  or (c) intent  to
                                              __

                      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


____________________



            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
                                                                 ________



            by Sentencing  Reform Act of  1984, Pub.L. 98-473,  Title II,
            __



              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
                                                 ___



            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


____________________



            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.
            ___  _____________     ______

            1992),  cert. denied, ___ U.S. ___, 114 S.Ct. 59, 126 L.Ed.2d
                    ____________

            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
                                 _______



            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

                                
            ____________________

            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
                         _______
            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.
                                                     ___ _____________



            Bass, 404 U.S.  336, 347-48 (1971).  The court found that the
            ____



            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
                            ___



            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
                                                          _______________



            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.
                                                                    _____



            denied,  506 U.S. 834 (1992).   In Fonfrias,  relying on both
            ______                             ________



            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.
                                                              ___



            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
                                            ___



            to  discern  anything  out  of  step  in  the   court's  rote



            application  of the grouping guideline.   See USSG  3D1.2 and
                                                      ___



            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).
                                                     ___



            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
                                                                   ______

            Fonfrias, via the same  1968 bill.  See Pub.L.  90-284, Title
            ________                            ___

            I,   101(a), Apr. 11, 1968, 82 Stat. 73.



                                         -11-



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
                                                  ___  _______     ______



            States, 508 U.S. 36, 38 (1993).  We see no such problem here.
            ______



            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)
                    ___ _______    ___________



            ("The maxim noscitur a  sociis, that a  word is known by  the
                        __________________



                                
            ____________________



            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
                     ___ _____________    ________



            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
                         ___ _____________    _____



            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)
            ______________     _____



            (fractured elbow,  arm in  a sling), cert.  denied, ___  U.S.
                                                 _____________



            ___, 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,
                                                ______________    ______



            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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