Professional Documents
Culture Documents
No. 95-1835
Plaintiff, Appellee,
v.
TAD A. PAGE,
Defendant, Appellant.
_____________________
No. 95-1836
Plaintiff, Appellee,
v.
ALLEN J. ADAMS,
Defendant, Appellant.
____________________
____________________
Before
____________________
____________________
of the Court,
for Allen
Adams.
Peter Clifford, by appointment of the Court, for Tad A. Page.
______________
Rebecca K. Troth
__________________
Patrick, Assistant
_______
with
whom
____________________
ALDRICH,
Adams
Defendants Allen
of
1992.
court's
application
of
to virtually
the
Sentencing
According to pre-sentence
every step
of the
Guidelines
and
We affirm.
reports accepted by
the
court,
in
accosted
the
early
hours of
"f______
September
1992, Adams
19,
go back to
to send
them back in
a body
bag.
Page joined Adams, who grabbed Page's handgun from inside his
truck, stuck it
his
head off."
An employee
who had
followed,
between
with
called the
Adams
them, and
in the
two cohorts
threatened to "blow
police, whereupon
with a fourth
friend
passenger
riding in
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
Adams' urging,
car, fired
two more
-3-
turned back.
for
Luna
gunshot wound
to his
approximately 90 minutes
right
later.
shortly, treated
upper arm
and released
He lost use of
to suffer
Pursuant to
pled guilty
exercise
U.S.C.
to
conspiracy
of federally
with
to hinder
secured
others
rights, in
Gonzales' use of a
U.S.C.
use
in
the
of
and 2
(count
same,
in
18
interference with
II), and
violation
free
violation of
245(b)(2)(F)
Luna's
of 18
interference
of
In return, the
18
U.S.C.
government
rights
of the
two
other
men,
and use
of
firearm
in
The court
which
neither objected.
Applying
II and
both
IV was
harm."
2H1.3(a)(3),1 the
bodily
USSG
See
___
determined that
2A2.2 and
comment.
intent to do
(n.1).
Allowing
____________________
1.
Section
2H1.1,
2H1.3 has
been
effective Nov. 1,
deleted
by consolidation
-4-
with
still operative at
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
offense
total
level
of
27.
Page,
with
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
The
mistaken
bulk of
notion
2A2.2, applies
defendants'
that
the
appeal proceeds
aggravated
injury,"
which
they contend
count.
Serious bodily
was
injury,
assault
on
the
provision,
not the
however,
case
for either
is only
one
of
provision:
"Aggravated
assault
that
assault"
involved
weapon
with
intent
(i.e.,
not merely
means a
felonious
(a) a
dangerous
to do
bodily
to frighten),
harm
or (b)
__
or (c) intent
__
to
USSG
2A2.2,
Thus simple
the
of
____________________
2.
Under
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
to apply.
The court
heftier base
under the
would prefer
unassailably found
the
that firing
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
by pointing out that the bullet that actually struck Luna was
one
Neither
the
court
nor
the
parties
focussed,
however, on
be
2A2.2's additional
"felonious."
injury to
Gonzales, is
applying
2A2.2
district court.
was
not "felonious"
not
Because
the propriety
of
specifically
articulated
we find it was at
of
to the
least implicitly
applying
2A2.2
to
count
II,
and
the
foreclosed,
despite
we
reach
it
perhaps
imperfect
____________________
dispute
the
court's
addition
of four
levels
under
this
-6-
preservation below.3
Although commentary to
2A2.2
of
the Guidelines
a felony
had long
Prior to enactment
been defined
as "any
offense
punishable
by Sentencing
__
death
obviated the
unrelated to
2A2.2
intent to incorporate
that
"punishable by
term
statute.
Title II,
necessity of
defines
In fact, a
a felony
precisely
An
the
"felonious,"
as
See USSG
___
1, but
4A1.2(o).
therefore,
Nov. 1, 1987).
provision
year."
for
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
The penalty
provision of
245(b) in
force at the
____________________
3.
We
note
aggravated
be
no
that
if
count
II
cannot
be
considered
an
more than
25, yielding
guideline range
of 57-71
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-
shall
be fined not
imprisoned
not
both; and if
be
fined
more than
more
imprisoned
not more
both;
if
subject
one
year, or
not
and
death
than
than ten
results
to imprisonment for
$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
if Luna's gunshot
wound can
13, 1994).
Count II
is
bodily injury.4
be said to
have resulted
from
According to
it
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
and,
in
the
of
the
in the double
We
find
support reading
enhancement only
victim
of the
indicating
single
nothing
the
statutory
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
supports
bill
explained
follows:
that "results"
victim
the
in bodily
graduated
penalty
injury, regardless of
provision
as
whether the
to a $1,000 fine
imprisonment;
if bodily
and 1 year
injury results,
10 years imprisonment;
and if death
results . . .
S.
Rep.
No.
721, 90th
Cong.,
2d
Sess.
-9-
(Nov. 2,
1967),
(Emphasis added.)
unambiguously signifies
that there
perpetrator of
is no safe
aimed
injured is
of both
results,"
haven for
-- that only
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
the
that
the
offenses
245(b),
at
individuals,
crimes,
resulting
in
least
describe
with higher
in
bodily
this
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
prohibits
sentencing
court
from
imposing
stiffer
punishment than
v.
F.2d
423, 425-426
Catala Fonfrias
_______________
(1st
Cir. 1991)
-10-
denied,
______
In Fonfrias,
________
relying on both
text
and
legislative
provision
identical to
single "result"
covered
history,
held
that
penalty
could be
crime, and
we
the consequence
consequently
of more
upheld
than one
imposition of
two
Id. at 426.
___
can
support penalty
enhancement
for each
without
raising
Defendants next
at
to
discern
anything
out
of
step
them
in
the
court's
rote
application
See USSG
___
3D1.2 and
comment. (n.5).
Defendants
also attack
the
to
the offense
Adams
level for
count
court's finding
that
IV.
See
___
2A2.2(b)(3)(B).
it does
not follow
Congress'
____________________
6.
Section
245
was
enhancement revisions to
Fonfrias, via the same
________
I,
enacted
241
along
the
penalty
1968 bill.
See Pub.L.
___
-11-
with
90-284, Title
language used to
sentences.7
define crimes
There is no
and set
minimum or
maximum
definitions which
are
not
internally
Constitution or
inconsistent
a federal statute.
or in
See
___
long as these
violation
Stinson v.
_______
of
the
United
______
______
Second,
both defendants
claim
clear error
in the
factual determination
that a bullet
him
work-disabled
for
three
wound to the
weeks
court's
upper arm
and left
"constitute[d]
the
within
the
Guideline definition
of
what is
serious.
to diminish or decrease.
To
There is
given.
____________________
word is known by
the
7.
function of a bodily
member,
mental
requiring
surgery,
organ,
or
medical
faculty;
or
intervention such
as
hospitalization,
rehabilitation.
As
used
USSG
-12-
or
physical
in
the
of this
term
in
company it keeps,
while not
wisely
where
applied
meanings . . . .").
an inescapable
word
is
rule, is
capable
often
of
many
Cir.
1995) (unconsciousness
mental
facilities),
three
from assault
weeks
is
impairment of
disability
should
be
sufficient.
Cir.
(bullet in
1993)
leg,
extremely
painful, two
weeks
United States
______________
2 F.3d
v. Reese,
_____
(fractured elbow,
___, 114
arm in
870,
879 (9th
Cir. 1993)
U.S.
We discern no
clear error.
18 U.S.C.
Defendants'
implicitly disposed
remaining
of by
have
been
or do
Affirmed.
________
____________________
contentions
8.
-13-