U.S. v. Gagnon

• Citation: 553 F.3d 1021
• Decision Date: 29 January 2009
• Docket Number: No. 07-2133.,07-2133.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christian GAGNON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

553 F.3d 1021

UNITED STATES of America, Plaintiff-Appellee, v. Christian GAGNON, Defendant-Appellant.

No. 07-2133.

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2008.

Decided and Filed: January 29, 2009.

ARGUED: Joseph A. Niskar, Detroit, Michigan, for Appellant. Kevin M. Mulcahy, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Joseph A. Niskar, Detroit, Michigan, for Appellant. Ross MacKenzie, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This case turns on the surprisingly vexing determination of what distinguishes a "simple assault" from "all other cases" under 18 U.S.C. § 111, which imposes punishment on anyone who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with" certain federal officers and employees. Defendant Christian Gagnon argues that his conviction was improper because the magistrate judge did not find that he committed "assault" and instead only found that he forcibly resisted, impeded, and interfered with an officer. But, because § 111 expressly prohibits more conduct than merely the commission of common-law assault, we affirm.

I.

In June 2006, after a security guard at a marina in St. Clair Shores, Michigan identified Christian Gagnon as possibly having immigration status problems, federal Border Patrol Agents confronted him. Gagnon, a Canadian citizen, had been drinking—he testified to having had at least "six beers," "a cocktail," and "another beer"— and he did not have his immigration documents with him. He searched the boat cabin for his passport and called his fiancée for help, but was unable to locate it. The agents, concerned that he was improperly within the country, called their superior to request a notice for Gagnon to appear before an immigration judge. While loud music played in the background, one agent observed Gagnon "suddenly jump up" and testified later that he had feared that Gagnon might attack. The agents tried to force Gagnon to sit down, he resisted, and they handcuffed him. After a somewhat tumultuous back and forth, the agents loaded Gagnon into the back of their Border Patrol vehicle. They asserted that Gagnon made himself vomit by sticking his finger down his throat (Gagnon stated that his stomach was upset from drinking alcohol), and the agents alleged that Gagnon spit at them through the vehicle's security screen between "five and ten times" while continually yelling obscenities.

This encounter crescendoed the next day when one of the agents issued Gagnon a citation notice charging him with a violation of 18 U.S.C. § 111. The parties agreed to proceed with the matter as a Class B misdemeanor charge (and thus the government was not required to file an information and there was no formal indictment), and Gagnon was convicted of a misdemeanor following a bench trial before a magistrate judge. The magistrate judge sentenced him to six months in prison given his Guidelines range. The district court affirmed.

II.

Our jurisdiction can neither be waived nor assumed. A defendant may not appeal directly from a magistrate's judgment to the court of appeals, but rather must appeal to the district court. 18 U.S.C. § 3402; FED. R.CRIM. P. 58(g)(2). And, although there is no provision that expressly allows a defendant to appeal from a district court's judgment affirming a conviction by a magistrate, 28 U.S.C. § 1291 grants appellate courts the authority to entertain appeals from "all final decisions of the district courts." So this language includes final district court adjudications of appeals from misdemeanor trials by magistrate judges. See, e.g., United States v. Aslam, 936 F.2d 751, 754 (2d Cir.1991). Indeed, such appeals have routinely been allowed, see, e.g., United States v. Forcellati, 610 F.2d 25, 30 (1st Cir.1979), and there is little reason to refuse Gagnon's appeal for prudential reasons because Gagnon appeals a conviction that resulted in jailtime and criminal trials before magistrates ought to be encouraged.

III.

Before getting to the primary question in this appeal, we must first address a structural point of first impression in this Circuit. Although 18 U.S.C. § 111¹ appears to set out a single offense with three levels of punishment to be imposed depending on the finding of certain sentencing elements, the Supreme Court has instructed that statutes with this type of structure in fact set forth separate crimes whose elements all must be proven to a jury. In Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court construed the federal carjacking statute—which also begins with a general offense provision and is followed by provisions defining levels of punishment based on varying criteria—and held that it defines separate crimes and that the factors leading to higher punishment must be considered elements of crimes and not sentencing enhancements. Id. This construction was necessary to avoid constitutional problems that would arise if elements of crimes were re-labeled "sentencing factors": Congress may not circumvent the constitutional requirement that elements of crimes must be submitted to a jury and proven beyond a reasonable doubt by relabeling them "sentencing enhancements." Id. Imagine the problems if Congress created a statute entitled "theft" that distinguished between petty theft and violent burglaries on the basis of "sentencing enhancements" not submitted to juries or proven beyond a reasonable doubt.

In any event, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)—which was decided after Jones and held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"—makes it indisputable that § 111 too must be treated as creating three separate crimes whose elements must all be submitted to a jury rather than as a single crime with three separate punishments determined on the basis of sentencing factors submitted to a judge. Those three crimes are: (1) "simple assault" (misdemeanor); (2) violations of § 111 that either involve a deadly or dangerous weapon or result in bodily injury (aggravated felony); or (3) "all other cases" (felony). 18 U.S.C. § 111(a)(b). Our sister courts of appeals are unanimous on this point. See, e.g., United States v. Vallery, 437 F.3d 626, 630 (7th Cir.2006); 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, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

IV.

So we turn to the primary question here: what is the difference between "simple assault" and "all other cases" under 18 U.S.C. § 111? Section 111—titled, "Assaulting, resisting, or impeding certain officers or employees"—has two parts. The first prohibits "forcibly assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with" certain active federal officers or employees and "forcibly assault[ing] or intimidat[ing]" former officers or employees. 18 U.S.C. § 111(a)(1)-(2). The second part sets out three levels of punishment for offenders: The first provides that anyone who violates § 111 and uses a deadly or dangerous weapon or inflicts bodily injury is guilty of a felony punishable by up to twenty years in jail; id. at § 111(b); the second provides that anyone who commits "only simple assault" is guilty of a misdemeanor punishable by up to a year in prison and a possible fine, id. at § 111(a); and the third provides that "in all other cases," a defendant is guilty of a felony punishable by up to eight years in prison and a possible fine. Id.²

The difficulty concerns how to distinguish between cases involving "only simple assault" from "all other cases." There is no obvious answer. The statute does not define "simple assault" and neither is it defined elsewhere in the U.S.Code. And, while § 111(a)(1) prohibits six different actions (forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering, with assault being but one), the punishment level clauses, by contrast, distinguish between misdemeanors and felonies solely in terms of "assault." Before turning to the government's interpretation distinguishing "simple assaults" from "all other cases," we begin with Gagnon's.

A.

At the close of the bench trial, the magistrate judge stated:

The statute proscribes the forcible assault, resisting, opposing, impeding, intimidating or interfering with any person which [sic] engaged in or on account of the performance of official duties. The official duties element is conceded based upon the testimony, and in view of the defendant's admitted consumption of substantial alcohol, I am satisfied that— that the element of forcible resistance, forcible impeding, forcible interference is satisfied in this case. In view of that finding, I will find that the defendant is guilty of the offense charged and enter a finding to that effect.

J.A. 102 (emphasis added). Gagnon argues that these findings were insufficient to support his conviction. Although styled as a sufficiency-of-the-evidence challenge, the real question here concerns how this Court should interpret 18 U.S.C. § 111. This Court "review[s] questions of statutory interpretation de novo." United States v. Parrett, 530 F.3d 422, 429 (6th Cir.2008).

In reliance on the Tenth Circuit's decision in United States v. Hathaway, 318 F.3d 1001 (10th Cir.2003), Gagnon argues that § 111 requires a finding of actual common-law "assault" to sustain any conviction under § 111.³ In Hathaway, the Tenth Circuit vacated a felony conviction under § 111 because the government had not alleged or proven the elements of "assault." Specifically, the Hathaway court reasoned first that at common law "simple assault" was defined as "either a willful...