U.S. v. McKeiver
| Decision Date | 14 May 1997 |
| Docket Number | No. 96-172-CR-ORL-22.,96-172-CR-ORL-22. |
| Citation | 982 F.Supp. 842 |
| Parties | UNITED STATES of America, Plaintiff, v. Dorothy McKEIVER, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Joel T. Remland, Darlene M. Geiger, Federal Public Defender's Office, Orlando, FL, for Defendant.
A.B. Phillips, U.S. Atty's Office, Orlando, FL, for U.S.
The purpose of this memorandum of decision is to memorialize the Court's rulings on two objections to the Presentence Report ["PSR"] in order to assist the Court and the parties on appeal.1 At sentencing on April 24, 1997, the Court sustained McKeiver's objection to a proposed three-level enhancement under U.S.S.G. § 2A2.4 (b)(1) because McKeiver's conduct did not involve physical contact. The Court also overruled the government's objection that the PSR should have contained a two-level enhancement under U.S.S.G. § 3C1.1 because the government had not proved a willful obstruction of justice. See PSR (April 14, 1997); Addendum to the PSR (April 14, 1997); and Docket Nos. 64, 65 at 4, 69 at 2-3, 66.
Dorothy McKeiver is a 52-year old African-American woman who has attended two years of college at Florida A & M University. PSR at 7. For the last thirty years, she has worked at Bell South Telecommunications in Jacksonville as a coin telephone collector. She earns approximately $48,000 per year gross income (net $32,640 per annum, or $2,720 per month). PSR at 7. For thirty-two years, she has been married to Spencer McKeiver, a dining room supervisor at Ponte Vedra Club who earns approximately $39,400 per year gross income (net $24,000 per annum, or $2,000 per month). PSR at 6, 8. The McKeivers have a net worth of minus $15,909. PSR at 8. McKeiver has no prior criminal history, except for a withheld adjudication some eighteen years ago for shoplifting Christmas cards valued at $3.50. PSR at 5.
On September 26, 1996, McKeiver disembarked the cruise ship "Fantasy" with her daughter, sister, and niece after a cruise to Nassau, Bahamas. The PSR accurately describes the incident that followed. PSR at 1-3. A line custom inspector addressed McKeiver's group as "gals" or "girls," and the women responded that they were "ladies." The line inspector sent them to secondary inspection because they had used one declaration form for four persons with different last names. The secondary inspector, Inspector Eugene Filipowicz asked to check their bags. McKeiver and the other women became verbally abusive, used foul language, and accused Inspector Filipowicz of being an "idiot." The women accused Inspector Filipowicz of harassing the women because of their race. Inspector Filipowicz attempted to calm the group, and warned them not to cross the Customs Inspection counter. The confrontation escalated.
Inspector Filipowicz's supervisor arrived, and spoke with McKeiver and the others. McKeiver continued to loudly accuse Inspector Filipowicz of being an "idiot," and told the supervisor that Inspector Filipowicz should not be working there. McKeiver repeatedly pointed her finger at Inspector Filipowicz. Inspector Filipowicz asked her not to point her finger at him, and McKeiver replied that she would point her finger at whomever she wants. McKeiver became even more agitated, and moved closer to the opening of the Customs Inspection counter. McKeiver then crossed the counter line, and thrust her finger close to Inspector Filipowicz's face as she cursed and berated him. PSR at 2-3. McKeiver's finger came within inches of physical contact with Inspector Filipowicz, but she did not touch him. Inspector Filipowicz understandably and justifiably slapped McKeiver's hand out of his face. This was the only physical contact between Inspector Filipowicz and McKeiver. The supervisor then stepped between the McKeiver and Inspector Filipowicz to prevent further physical contact, and Inspector Filipowicz left. PSR at 3.
McKeiver had clearly assaulted, impeded, intimidated, and interfered with a United States Customs Officer while he was engaged in official duties. On February 5, 1997, a twelve-person jury convicted Dorothy McKeiver of simple assault upon a federal officer in violation of 18 U.S.C. § 111 after a three day trial. Docket No. 53; see also, Docket Nos. 50, 52.
First, it is a misdemeanor to forcibly assault, resist, oppose, impede, intimidate, or interfere with any United States Customs Officer while he is engaged in official duties, where the violation constitutes only a simple assault. 18 U.S.C. § 111(a). The maximum statutory sentence for the misdemeanor is one year imprisonment, a $100,000 fine, or both. 18 U.S.C. § 111, § 3571(b)(5). Second, where the United States charges that a violation of § 111 constitutes anything more than simple assault, the charge is a felony charge that carries a maximum statutory sentence of three years imprisonment, a $250,000 fine, or both. Third, Congress has provided for an enhanced maximum statutory sentence often years imprisonment, a $250,000 fine, or both when a person inflicts bodily injury while violating § 111. 18 U.S.C. § 111(b), § 3571(b)(3).
Of course, the United States may not charge a felony by information absent waiver, and a United States Magistrate Judge may not impose sentence in a felony case. See Fed.R.Cr.P. 7, 58; 28 U.S.C. § 636(a)(5). The United States and McKeiver agree that the information charges McKeiver with acts that constitute no more than misdemeanor simple assault. See Docket Nos. 1, 17, 34.
The Court scores misdemeanor simple assault violations under U.S.S.G. § 2A2.4 (Obstructing or Impeding Officers).2 Section 2A2.4 begins at Base Offense Level 6, and then adds the following Specific Offense Characteristic: "If the conduct involved physical contact, or if a dangerous weapon (including a firearm) was possessed and its use was threatened, increase by 3 levels." U.S.S.G. § 2A2.4(b)(1) (emphasis supplied). No statute, sentencing guideline, or application note to § 2A2.4 further directly defines what the United States Sentencing Commission means by "the conduct involved physical contact."
At sentencing, the government argued that § 2A2.4 (b)(1) has only one possible meaning in this context, and that § 2A2.4 (b)(1) clearly and unambiguously requires a three-level enhancement. Specifically, the government argued that McKeiver's violation and conduct "involved physical contact" because her assault on Inspector Filipowicz caused Filipowicz to slap her hand out of the way. The Court disagrees.
In determining whether "conduct involved physical contact," the Court must first decide whose conduct will result in the enhancement for obstructing or impeding an officer: the defendant's conduct or the victim's conduct.3 The government's argument proves too much. The Court need look no farther than the text of U.S.S.G. § 2A2.4(b)(1) to determine whose conduct results in an enhancement. Section 2A2.4(b)(1) calls for a three-level enhancement not only "if the conduct involved physical contact," but also "if a dangerous weapon (including a firearm) was possessed and its use was threatened." See U.S.S.G. § 2A2.4(b)(1). The logical extent of the government's reliance on victim-initiated contact would be that the § 2A2.4 (b)(1) enhancement also applies "if a dangerous weapon (including a firearm) was possessed and its use was threatened" by the victim or officer. Just as it is illogical to enhance a defendant's sentence because the federal officer under assault possessed and threatened to use a firearm, it is also illogical to enhance a defendant's sentence based on victim-initiated physical contact.
When the Court also considers the larger text of the United States Sentencing Guidelines, it becomes even more clear that § 2A2.4 (b)(1) looks only to the conduct of the defendant. Section 2A2.4 is part of Chapter Two of the United States Sentencing Guidelines which pertains to "Offense Conduct," a well defined term. "Offense" means the defendant's offense of conviction and all of the defendant's relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. U.S.S.G. § 1B1.1 (1). "Relevant Conduct" means:
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
U.S.S.G. § 1B1.3 (a)(1). "Offense conduct" and "relevant conduct" both focus on the conduct of the defendant and the defendant's co-conspirators, not on the conduct of the victim. Similarly, the sentencing court will look to the conduct of the defendant, not the conduct of the victim, in determining whether "the conduct involved physical contact" within the meaning of U.S.S.G. § 2A2.4 (b)(1).
The purpose underlying the sentencing enhancement is instructive. Section 2A2.4 (b)(1) focuses on the nature of the defendant's conduct that comprises the offense of resisting or obstructing, and furthers § 111's purpose of protecting the safety of federal officers. United States v. Beckner, 983 F.2d 1380, 1387-88 (6th Cir.1993) (dissent). The enhancement in § 2A2.4 (b)(1):
takes into account not only the threat to the safety of the officers which may be posed by physical contact or the use of a dangerous weapon, but also the added impediment to the execution of official duties which may be posed by physical contact or the threatened use of a dangerous weapon.... This characteristic focuses on and is limited to the conduct of the defendant which constitutes...
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