US v. Williams

• Decision Date: 23 March 2010
• Docket Number: No. 09-50059.,09-50059.
• Citation: 602 F.3d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria Henrietta WILLIAMS, also known as Maria H. Williams, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

602 F.3d 313

UNITED STATES of America, Plaintiff-Appellee, v. Maria Henrietta WILLIAMS, also known as Maria H. Williams, Defendant-Appellant.

No. 09-50059.

United States Court of Appeals, Fifth Circuit.

March 23, 2010.

Joseph H. Gay, Jr. (argued) and Ellen A. Lockwood, Asst. U.S. Attys, San Antonio, TX, for U.S M. Carolyn Fuentes (argued) and Henry Joseph Bemporad, Fed. Pub. Defenders, San Antonio, TX, for Williams.

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Maria Williams appeals her conviction on two counts of forcible assault of a federal officer under 18 U.S.C. § 111(a)(1). She also argues that an undisputed Apprendi error at sentencing requires the court to vacate her sentence and remand for resentencing. We affirm in part and vacate and remand in part.

FACTS AND PROCEEDINGS

Maria Williams was arrested on May 31, 2008, in El Paso for forcibly resisting or assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1). Military police officers Harris and Putnam and Sergeant Eichmann responded to a complaint a neighbor made against Williams for indecent exposure. When Eichmann asked Williams if someone could watch her child while he discussed the complaint with her, she became upset and stated that she would not be arrested or go to jail. Eichmann then ordered Harris and Putnam to detain Williams. She informed the officers that she should not be handcuffed because she suffered from fibromyalgia syndrome, which causes her to suffer extreme pain when touched.¹

Harris testified that when she attempted to handcuff Williams, Williams was holding a lit cigarette and "swinging her arms at us. The cigarette was my main focus at that point. We asked her to put it out, but she refused. The cigarette was swinging everywhere, . . . and I couldn't get a grip on one of her hands." Eichmann ordered Harris to use force. Harris testified that she grabbed Williams's wrist and shoulder in order to spin Williams to the ground. However, there was not enough room for Harris to put Williams on the ground, and both of them fell against a fence. As the two struggled, Williams pulled her arm away and as she did so she struck Harris on the side of her face. Eichmann then ordered Putnam to assist Harris, but when Putnam attempted to force Williams to the ground, Williams pulled away and struck him in the jaw. Putnam testified that he did not believe that Williams intentionally hit him, and Eichmann's statement about whether Williams meant to hit Putnam was also ambiguous: he testified that "it wasn't like she was trying to fight with us, but we weren't going to take her." After Williams was taken into custody by FBI agents, she told them that she moved her arms so that the officers could not handcuff her.

The grand jury returned a two-count indictment against Williams. Both counts charged her with violating § 111(a)(1), without reference to any physical contact between Williams and the officers. At trial, Williams moved for judgment of acquittal at the close of the Government's case and renewed her motion after she presented her defense. After the court denied her motions, the jury found Williams guilty on both counts. The presentence report (PSR) characterized Williams's offenses as class D felonies pursuant to 18 U.S.C. § 111(a)(2)—with a statutory maximum of eight years of imprisonment and three years of supervised release—because they involved physical contact with the arresting officers. The PSR assessed a total offense level of 15: a base level of 10, a 2-level enhancement for multiple counts, and a 3-level enhancement because the conduct involved physical contact with the officers. Williams's criminal history category of II² and total offense level of 15 yielded a guidelines range of 21-27 months' imprisonment. Williams objected to the enhancement for multiple counts and requested a variance. The district court overruled the objection and rejected the request for a variance. The district court adopted the PSR and sentenced Williams to 21 months of imprisonment and two years of supervised release on each count, to run concurrently.

STANDARD OF REVIEW

Because Williams properly preserved her sufficiency of the evidence argument, this court's review is de novo. See United States v. Shum, 496 F.3d 390, 391 (5th Cir.2007). "In deciding whether the evidence was sufficient, we review all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt." Id. The court "considers the countervailing evidence as well as the evidence that supports the verdict in assessing sufficiency of the evidence." United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999) (quotation omitted). The evidence is insufficient to support the verdict "if . . . the evidence gives equal or nearly equal circumstantial support to a theory of guilt, as well as to a theory of innocence." United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.2000).

The sufficiency challenge requires determining what conduct constitutes an offense under § 111(a)(1). The court reviews questions of statutory interpretation de novo. United States v. Kay, 359 F.3d 738, 742 (5th Cir.2004).

DISCUSSION

A. Williams's Conviction

While Williams's appeal is couched as a sufficiency of the evidence challenge, deciding it requires us to construe—as a matter of first impression in this circuit— the boundaries of the statute under which she was convicted. Section 111 provides, in relevant part:

(a) In general—Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any federal officer while engaged in or on account of the performance of official duties;

. . .

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

As discussed in cases in other circuits, the statute contains two ambiguities. First, it distinguishes between misdemeanor and felony conduct by use of the undefined term "simple assault." Second, and central to this case, the statute appears to outlaw several forms of conduct directed against federal officers, only one of which is assault, but then distinguishes between misdemeanors and felonies by reference to the crime of assault. The difficulty that has confronted other courts is whether conviction for the non-assaultive conduct apparently outlawed by the statute (i.e., "resisting, opposing, impeding, intimidating, or interfering" with a federal officer) requires, at a minimum, conduct that amounts to "simple assault." To put the question another way, can a defendant be convicted of forcible resistance under this statute without having committed an underlying assault? Williams argues that criminal liability under § 111(a)(1) requires conduct amounting to an assault and, arguing that there was insufficient evidence of such, asks us to vacate the judgment against her.

"This circuit has interpreted . . . § 111 to create three separate offenses: `(1) simple assault; (2) more serious assaults but not involving a dangerous weapon; and (3) assault with a dangerous weapon.'" United States v. Williams, 520 F.3d 414, 420 (5th Cir.) (quoting United States v. Ramirez, 233 F.3d 318, 321 (5th Cir.2000), overruled on other grounds by United States v. Cotton, 535 U.S. 625, 629-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)), cert. denied, ___ U.S. ___, 129 S.Ct. 111, 172 L.Ed.2d 89 (2008) (mem.). We have held that simple assault is a misdemeanor offense under § 111(a) and defined simple assault as an attempted or threatened battery. United States v. Hazlewood, 526 F.3d 862, 865 (5th Cir.2008) (citing Ramirez, 233 F.3d at 321-22; United States v. Vallery, 437 F.3d 626, 631 (7th Cir. 2006)). By implication, the other two forms of assault are felonies under the statute. However, this court has never ruled on whether the additional conduct proscribed in § 111(a)(1) requires, at a minimum, underlying assaultive conduct.³

Several circuits have split on this question. In United States v. Chapman, the Ninth Circuit held that convictions under the statute "require at least some form of assault." 528 F.3d 1215, 1221 (9th Cir. 2008). Construing an earlier version of the statute,⁴ the Ninth Circuit noted that other circuits "have adopted a construction that leaves no room for a conviction that does not involve at least some form of assault." Id. at 1219. More importantly, the Ninth Circuit argued that without requiring some sort of underlying assault, it would be impossible to distinguish non-assaultive misdemeanor resistance cases from felonious resistance cases, because the now-superseded "statutory language clearly limits the category of `misdemeanors' to cases of `simple assault' and then categorizes `all other cases' felonies." Id. at 1220. "If Congress had intended to prohibit both assaultive and non-assaultive conduct and intended to distinguish between misdemeanors and felonies based solely on physical contact, it easily could have said so." Id. at 1221. To hold that non-assaultive conduct was proscribed by the statute would lead to absurd results, the Ninth Circuit suggested, because "in cases of mere resistance, it is not at all clear that resistance with physical contact is any more culpable than resistance without such contact,...