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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

Adams.
Peter Clifford, by appointment of the Court, for Tad A. Page.
______________
Rebecca K. Troth
__________________
Patrick, Assistant
_______

with

whom

Jessica Dunsay Silver, Deval


_______________________ ______

Attorney General, Jay P. McCloskey, United Sta


_________________ __________

Attorney, and John S. Gleason III, Assistant


________
____________________
were on brief for appellee.

____________________

May 24, 1996


____________________

United States Attorn

ALDRICH,

Adams

Senior Circuit Judge.


_____________________

Defendants Allen

and Tad Page pled guilty to three counts of conspiracy

and interference with the civil rights of others in September

of

1992.

court's

They now object

application

of

to virtually

the

Sentencing

underlying statutes to their offenses.

According to pre-sentence

every step

of the

Guidelines

and

We affirm.

reports accepted by

the

court,

in

accosted

the

early

hours of

Ruben Gonzales, Oscar

as they attempted to enter a

"f______

September

1992, Adams

Luna and Emiliano Valenzuela

convenience store, calling them

Mexicans" who should

"belonged," and offering

19,

go back to

to send

Mexico where they

them back in

a body

bag.

Page joined Adams, who grabbed Page's handgun from inside his

truck, stuck it

his

to Gonzales' temple and

head off."

An employee

Gonzales and his

who had

followed,

between

with

called the

companions drove off

remained in their car.

Adams

them, and

in the

two cohorts

threatened to "blow

police, whereupon

with a fourth

friend

Page jumped in his truck and

passenger

riding in

carloads of their friends joined the chase.

seat

back.

and

the gun

Two other

Driving about 75

miles an

seven

shots into

directly

behind it.

in

hour, Page

pulled up

the air,

behind Gonzales'

and at

into the back of the

Adams' urging,

car, fired

two more

vehicle and two at the ground

One bullet struck Luna in the arm, another lodged

the headrest behind Gonzales' head.

-3-

Page then slowed and

turned back.

for

Luna

was taken to a hospital

gunshot wound

to his

approximately 90 minutes

was unable to work

right

later.

shortly, treated

upper arm

and released

He lost use of

his arm and

for three weeks, and continued

to suffer

residual pain for some time.

Pursuant to

pled guilty

exercise

U.S.C.

to

conspiracy

of federally

with

to hinder

secured

others

rights, in

241 (count I), racially motivated

Gonzales' use of a

U.S.C.

a plea agreement, Adams

use

in

the

of

and 2

(count

same,

in

245(b)(4)(A) and 2 (count IV).

18

interference with

II), and

violation

free

violation of

public accommodation, in violation

245(b)(2)(F)

Luna's

and Page each

of 18

interference

of

In return, the

18

U.S.C.

government

dismissed the remaining counts charging interference with the

rights

of the

two

other

men,

and use

of

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

court determined that the

II and

both

IV was

harm."

2H1.3(a)(3),1 the

underlying offense for both counts

"aggravated assault," having

involved use of "a

bodily

USSG

See
___

determined that

dangerous weapon with

2A2.2 and

comment.

intent to do

(n.1).

Allowing

____________________

1.

Section

2H1.1,

2H1.3 has

been

effective Nov. 1,

deleted

by consolidation

1995, but was

the time of defendants' sentencing.

-4-

with

still operative at

enhancements for Luna's injury,

firearm,

3C1.1,

it

2A2.2(b)(2)(A),

arrived

at

2A2.2(b)(3)(B), discharge of

and

a combined

obstruction

of

offense

level

deducted

three for acceptance of responsibility,

offense

total

level

of

27.

Page,

with

convictions, faced an imprisonment range of 70 to

and

Adams, who

has a record,

faced 78

to 97

justice,

of

30,

3E1.1, for

no

prior

87 months,

months.

The

court

imposed

70

months on

Page,

and

88

on Adams,

and

assessed each $370 in restitution.

The

mistaken

bulk of

notion

2A2.2, applies

defendants'

that

the

appeal proceeds

aggravated

only if the victim

injury,"

which

they contend

count.

Serious bodily

was

injury,

assault

on

the

provision,

suffered "serious bodily

not the

however,

case

for either

is only

one

of

several alternative bases for applying the aggravated assault

provision:

"Aggravated
assault

that

assault"
involved

weapon

with

intent

(i.e.,

not merely

means a

felonious

(a) a

dangerous

to do

bodily

to frighten),

serious bodily injury,


commit another felony.

harm
or (b)
__

or (c) intent
__

to

USSG

2A2.2,

comment. (n.1). (Emphasis added.)

intent to do bodily harm of

Thus simple

any kind, without regard to

degree actually suffered, if

any,2 may support a finding

the

of

____________________

2.

Under

2A2.2, degree of bodily injury is relevant only to

determining
injury,"
something

how

four for

many

levels

"serious

in between.

See
___

to

add

--

bodily injury,"
2A2.2(b)(3).

-5-

two for

"bodily

and three

for

Defendants also

aggravated assault

offense level

and enhancements

"minor assault"

court

and application

of the far

than provided for

guideline that defendants

to apply.

The court

heftier base

under the

would prefer

unassailably found

the

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

therefore that

calculated to

both

assault guideline.

end

counts II

up

and

in

bodily harm,"

IV fit

Defendants' effort to

the

and

aggravated

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

be

2A2.2's additional

"felonious."

The argument that count II, resulting in no

injury to

Gonzales, is

applying

2A2.2

district court.

was

not "felonious"

not

Because

raised and pursued by

the propriety

of

requirement that the assault

specifically

for the purpose

articulated

we find it was at

of

to the

least implicitly

defendants' multiple efforts to attack

applying

2A2.2

to

count

II,

and

the

government addressed the issue

without contending review was

foreclosed,

despite

we

reach

it

perhaps

imperfect

____________________

dispute

the

court's

addition

provision, which we address post.


____

of four

levels

under

this

-6-

preservation below.3

Our first question is,

guideline mean by "felonious?"

quite simply, what does the

Although commentary to

2A2.2

defines a host of terms and phrases, no definition for felony

or "felonious" is provided or referenced.

of

the Guidelines

a felony

had long

Prior to enactment

been defined

as "any

offense

punishable

exceeding one year."

by Sentencing
__

death

1984, Pub.L. 98-473,

obviated the

unrelated to

2A2.2

according to the repealed

intent to incorporate

that

"punishable by

term

statute.

Title II,

necessity of

defines

In fact, a

a felony

precisely

An

this pre-existing definition into

the

"felonious,"

as

See USSG
___

1, but

4A1.2(o).

Guidelines where appropriate thus

therefore,

Nov. 1, 1987).

refute or replace its felony definition.

provision

year."

for

1 (June 25, 1948), repealed


________

Stat. 2027 (repeal effective

Guidelines perhaps

nowhere

or imprisonment

18 U.S.C.

Reform Act of

218(1)(1), 98

The

by

seems clear.

used

in

We conclude,

2A2.2,

means

death or a term of imprisonment exceeding one

The penalty

provision of

245(b) in

force at the

____________________

3.

We

note

aggravated
be

no

that

if

count

II

cannot

be

considered

an

assault, defendants' combined offense level would

more than

25, yielding

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
_____________

1992),

v. Newman,
______

982 F.2d

665, 672

(1st Cir.

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

28 (1993).

-7-

time of the assaults provided that offenders

shall

be fined not

imprisoned

not

both; and if
be

fined

more than

more

imprisoned

not more

both;

if

subject

one

year, or

bodily injury results shall

not

and

more than $1,000, or

death

than

than ten
results

to imprisonment for

years or for life.

$10,000,

or

years, or
shall

be

any term of

-8-

18 U.S.C.

245(b)

therefore felonious

(amended Sept.
_______

only if

it resulted in

Gonzales himself suffered none,

if Luna's gunshot

wound can

13, 1994).

Count II

is

bodily injury.4

thus count II qualifies only

be said to

defendants' violation of Gonzales'

have resulted

from

rights as well as Luna's.

According to

it

defendants, the problem with

unjustifiably stretches

because

Luna's

applicable

injury

punishment

prohibition on

this is two-fold:

the

language

of

already

sustains

increase

for

count

IV,

245(b)

runs

afoul

multiple punishments contained

and,

in

the

of

the

in the double

jeopardy clause of the Constitution.

We

find

support reading

enhancement only

victim

of the

indicating

single

nothing

the

statutory

the penalty provision of

in cases of

particular

an intent

count

in

when

to restrict

multiple

Nor is

the intended

there anything

penalty enhancement

counts

to

245(b) to permit

bodily injury to

offense.

language

aimed

to a

at

several

bodily

injury.

____________________
individuals

end

up

causing

but a

single

4.

There

is

no

question

that

Luna's

injury

enhancement for count IV.


First, it is plain from the structure of

supports

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

follows:
that "results"

victim

the

in bodily

graduated

penalty

injury, regardless of

provision

as

whether the

If no one is actually harmed, penalties


_______
of the particular offense was the one injured.5
are limited

to a $1,000 fine

imprisonment;

if bodily

the maximum penalties


and

and 1 year

injury results,

are a $10,000 fine

10 years imprisonment;

and if death

results . . .

S.

Rep.

No.

721, 90th

Cong.,

2d

Sess.

reprinted in 1968 U.S.C.C.A.N. 1837, 1846.


____________

-9-

(Nov. 2,

1967),

(Emphasis added.)

Second, the unqualified

phrase, "if bodily injury

unambiguously signifies

that there

perpetrator of

is no safe

aggravated assault against

to result in bodily injury only to one.

Bass, 404 U.S.


____

336, 347-48 (1971).

offense behavior underlying both

aimed

directly at the car

injured is

of both

results,"

haven for

many that happens

Cf. United States v.


___ _____________

The court found that the

counts included two bullets

-- that only

Luna was physically

immaterial to the conclusion

that the violations

Luna's and Gonzales' civil rights each "resulted" in


___

the bodily

injury sustained

subject to penalty

therefore

by Luna, rendering

enhancement under

"felonious"

for

the

both counts

245(b).

purpose

of

Count

II is

applying

USSG

2A2.2.

Defendants'

claim

that

unconstitutionally subjects them

the

that

same offense is also

the

offenses

245(b),

at

individuals,

crimes,

resulting

in

least

describe

with higher

in

bodily

this

to multiple punishments for

unavailing.

There

sub-sections (2)(F)

when

committed

discrete

and

(or

is no question

and

(4)(A)

of

against

different

separately

punishable

sentences authorized

injury

reading

death).

for each

The

offense

multiple

punishments prohibition of the double jeopardy clause "merely

prohibits

sentencing

court

from

imposing

stiffer

punishment than

v.

the legislature intended."

United States, 951


______________

F.2d

423, 425-426

Catala Fonfrias
_______________

(1st

Cir. 1991)

-10-

(citing Missouri v. Hunter, 459 U.S.

denied,
______

506 U.S. 834 (1992).

359, 366 (1983)), cert.


_____

In Fonfrias,
________

relying on both

text

and

legislative

provision

identical to

single "result"

covered

history,

held

that

penalty

245(b)6 clearly contemplated that a

could be

crime, and

we

the consequence

consequently

consecutive life sentences for

of more

upheld

than one

imposition of

two

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

at

least a two-level increase, see


___

to

discern

anything

out

of

step

them

3D1.4, but we are unable

in

the

court's

rote

application

of the grouping guideline.

See USSG
___

3D1.2 and

comment. (n.5).

Defendants

also attack

the

Luna's wound was a "serious bodily

to

the offense

Adams

level for

count

court's finding

that

injury," which added four

IV.

See
___

2A2.2(b)(3)(B).

asserts, first, error of law in the court's use of the

Guideline definition, because

it does

not follow

Congress'

____________________

6.

Section

245

was

enhancement revisions to
Fonfrias, via the same
________
I,

enacted
241

along

the

penalty

and 242 considered in Catala


______

1968 bill.

See Pub.L.
___

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

-11-

with

90-284, Title

language used to

sentences.7

define crimes

There is no

and set

reason why the

minimum or

maximum

Guidelines may not

make their own classifications within the statutes, and hence

definitions which

are

not

the courts must observe, so

internally

Constitution or

inconsistent

a federal statute.

States, 508 U.S. 36, 38 (1993).

or in

See
___

long as these

violation

Stinson v.
_______

of

the

United
______

We see no such problem here.

______

Second,

both defendants

claim

clear error

in the

factual determination

that a bullet

which took the victim

to the hospital (90 minutes)

him

work-disabled

for

three

wound to the

weeks

court's

upper arm

and left

"constitute[d]

the

impairment of a function of a bodily member," thereby falling

within

the

Guideline definition

impair, generally, means

of

what is

serious.

to diminish or decrease.

To

There is

no requirement of duration, nor does the Guideline definition

impose one with

given.

respect to this or any of the other examples

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,

mental

requiring
surgery,

organ,

or

medical

faculty;

or

intervention such

as

hospitalization,

rehabilitation.

As

used

guidelines, the definition


is somewhat different
various statutes.

USSG

1B1.1, comment. (n.1(j)).

-12-

or

physical
in

the

of this

term

than that used

in

company it keeps,

while not

wisely

where

applied

meanings . . . .").

an inescapable

word

is

rule, is

capable

often

of

many

Whether impairment for a moment ranks as

serious, cf. United States v. Thompson, 60 F.3d 514, 516 (8th


___ _____________
________

Cir.

1995) (unconsciousness

mental

facilities),

three

from assault

weeks

is

impairment of

disability

should

be

sufficient.

Cf. United States v. Moore, 997 F.2d 30, 37 (5th


___ _____________
_____

Cir.

(bullet in

1993)

leg,

extremely

painful, two

weeks

disability; court did not

designate which element was met);8

United States
______________

2 F.3d

v. Reese,
_____

(fractured elbow,

___, 114

arm in

S.Ct. 928, 127

870,

879 (9th

Cir. 1993)

a sling), cert. denied, ___


_____________

L.Ed.2d 220 (1994).

U.S.

We discern no

clear error.

18 U.S.C.

3742(e); United States v. Garcia,


______________
______

34 F.3d 6, 10 (1st Cir. 1994).

Defendants'

implicitly disposed

remaining

of by

have

been

the foregoing discussions,

or do

not merit further reflection.

Affirmed.
________

____________________

contentions

8.

We note that court held two hours hospital emergency room

did not constitute "hospitalization."

-13-

997 F.2d at 37.

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