U.S. v. Olson

• Decision Date: 20 July 2011
• Docket Number: No. 10–1089.,10–1089.
• Citation: 646 F.3d 569
• Parties: UNITED STATES of America, Appellee,v.William J. OLSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

646 F.3d 569

UNITED STATES of America, Appellee,

v.William J. OLSON, Appellant.

No. 10–1089.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 19, 2010.Filed: July 20, 2011.

Robert L. Vogel, Knoxville, TN, argued, for appellant.D. Michael Green, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.WOLLMAN, Circuit Judge.

William Olson pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).At sentencing, the government argued, among other things, that Olson's conduct during his arrest amounted to an assault on the arresting officers and therefore justified a six-level increase to his base offense level.SeeU.S. Sentencing Guidelines Manual§ 3A1.2(c)(1)(2008).The district court¹ agreed, calculated a guidelines range of 130 to 162 months' imprisonment, and sentenced Olson to 120 months' imprisonment, the maximum term permitted by statute.See18 U.S.C. § 924(a)(2).Olson appeals, arguing that the six-level increase was inappropriate.We affirm.

I.

In the early morning hours of October 17, 2008, two Lee's Summit, Missouri, police officers—responding to a call about a possible burglary in progress—approached a detached garage on a quiet residential street.They could hear someone inside.One of the officers, Vincent Grisafe, radioed for additional help and, shortly thereafter, Officer Crume arrived.Crume had just been in the parking lot of a nearby school where someone had left a truck with an empty gun holster inside.The three officers suspected that the truck, the holster, and the gun to go with it belonged to whoever was inside the garage.

As the three officers were arranging themselves around the garage, its door flew open and Olson ran out.The officers told him to stop and ordered him to the ground, but Olson ignored them and kept running.After a short chase, Olson was nowhere in sight.

Not ready to give up the search, Grisafe radioed for the help of a canine team to track Olson.Twenty minutes later, Officer Justin Rigot arrived with his dog, Bessie.Rigot pointed Bessie to some footprints in the dew on a nearby field, where Bessie found a scent trail.Following that trail, she led the officers to a nearby creekbed, where she found and “engage[d]”² Olson.

Rigot, who was following closely behind, would later testify that as he“peer [ed] over the edge of the creek ... [he] saw [Olson] laying in the creek wearing a dark-hooded sweatshirt.”SentencingTr. at 26:13–16.He described Olson's physical position as “an ambush position which I can describe to you [as] maybe a fetal position.His back was towards me.He was laying in the creek bed with his hands between his knees, and he was looking up at the opposite side of the creek bed which was the original direction we were coming from.”Id.at 26:19–24.He further testified that Olson “was holding a gun in his hand and he had it clasped with both his hands like in a firing hold.”Id.at 27:1–4.

Grisafe, who had been walking with Rigot, also testified that Olson's “back was up against the bank of the creek facing away from us and he was kind of in a fetal position.”Id.at 13:20–21.And Grisafe, too, “saw that [Olson] had a gun in between his legs and he was grasping it with both hands.”Id.at 14:5–7.Grisafe estimated that at this point the officers were only three or four feet away from Olson.

Grisafe, Rigot, and a third officer who had since arrived identified themselves as police officers and “gave repeated verbal commands for [Olson] to drop the gun.”Id.at 27:6–7.When asked how many times they repeated the command, Rigot testified, “Numerous, numerous times, and it was so loud that officers on the perimeter that were approximately 50 yards away, they heard this yelling.”Id.at 27:9–12.But Olson did not drop the gun.Rather, for “the first couple minutes he laid there motionless even as the dog bit him.He didn't move.He didn't say nothing.”Id.at 27:21–24.

It was only when additional officers approached that Olson began to move, in a way that Rigot described as “preparing to get a stance to shoot somebody.”Id. at 28:12.Specifically, he testified that he watched Olson “start[ ] to move his, would have been right leg and he's bringing the gun up around like this as if he's to get a stance,”id.at 28:7–9, and that it appeared Olson “was bringing the gun up from between his knees,”id.at 32:9.Grisafe testified that he, too, saw “[t]he gun start[ ] to rise.”Id.at 15:2.

Grisafe and Rigot both fired their duty weapons at Olson, hitting him several times.Grisafe later acknowledged that it “was a very stressful situation” and could not remember firing his weapon; his next memory was of calling for an ambulance.Rigot remembered firing his weapon four times.

Olson was treated for his injuries and later pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).As recounted above, the government argued at sentencing that Olson's conduct during his arrest amounted to an assault on the arresting officers and therefore justified an enhancement under guidelines § 3A1.2(c)(1), the “Official Victim” enhancement.The district court, crediting the officers' testimony, concluded that Olson had assaulted the officers and applied the enhancement.

On appeal, Olson argues that application of the enhancement was procedural error because the officers' testimony at sentencing was insufficient to support the conclusion that he had assaulted the officers.He asks us to vacate his sentence and remand the case to the district court for resentencing.

II.

“This court reviews the district court's construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.”United States v. Bastian,603 F.3d 460, 465(8th Cir.2010)(citation and quotation marks omitted).“The government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence.”United States v. Hansel,524 F.3d 841, 847(8th Cir.2008).

Olson does not challenge the accuracy of the officers' testimony, but instead argues that it was insufficient to support the district court's conclusion that the victim-related enhancement found in guidelines § 3A1.2(c)(1) applies to his conduct.Our task is therefore limited to answering one question: Was the officers' testimony at sentencing sufficient to support the application of the Official Victim enhancement set forth in § 3A1.2(c)(1)?We consider the question de novo.

Section 3A1.2(c)(1) provides for a six-level enhancement to the base offense level for any defendant who, “knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom” and did so “in a manner creating a substantial risk of serious bodily injury.”U.S. Sentencing Guidelines Manual§ 3A1.2(c)(1).The application note clarifies that the enhancement “applies in circumstances tantamount to aggravated assault ... against a law enforcement officer, committed in the course of, or in immediate flight following, another offense.”Id.§ 3A1.2(c)(1) cmt. n. 4(A).Section 3A1.2(c) does not, however, define the terms “assaulted” or “aggravated assault.”Furthermore, although we have on prior occasions affirmed the application of the Official Victim enhancement, see, e.g., United States v. Hill,583 F.3d 1075(8th Cir.2009), we have never endeavored to determine precisely what constitutes “assault[ ]” under that guideline.

We join those circuits that have concluded that the term “assault” in the Official Victim enhancement is a reference to common-law criminal assault.Of the circuits that have considered this question, the most complete analysis appears in the First Circuit's decision in United States v. Lee,199 F.3d 16(1st Cir.1999).In Lee, the First Circuit concluded that “generally speaking,”“the term ‘assault’ in the [Official Victim enhancement] should be read as a reference to common law criminal assault.”199 F.3d at 18.Although it acknowledged that the drafters of the guidelines “may not have had this precise question in mind,” it settled on the common-law definition because “ ‘assault’ is a standard common law concept and no other definition has been adopted by the guideline or commentary, either explicitly or by cross-reference.”Id. at 17.

Furthermore, the First Circuit was unable to find a more appropriate alternative definition.Looking first to a federal statute criminalizing assault, the court noted that “assault” was not a defined term, seeLee,199 F.3d at 16, and we observe that, indeed, a similar federal assault statute has been read to incorporate the common-law definition of assault, see, e.g., United States v. Dupree,544 F.2d 1050, 1051(9th Cir.1976).The First Circuit found similarly unhelpful the commentary to guidelines § 2A2.2, which then, as now, defined “Aggravated Assault” as a particular type of “felonious assault,” but left “assault” undefined.SeeLee,199 F.3d at 18;see alsoUnited States v. Carmichael,267 Fed.Appx. 290, 292(4th Cir.2008)(“The commentary to § 3A1.2 does not define aggravated assault....Carmichael contends that the district court should have applied the definition of aggravated assault set out in Application Note 1 to USSG § 2A2.2(Aggravated Assault).However, § 2A2.2 is not applicable to Carmichael's offense.”);cf.United States v. Sampson,41 Fed.Appx. 112(9th Cir.2002)(rejecting an application of the Official Victim enhancement because none of the aggravating factors listed in § 2A2.2 cmt. n. 1 were present).

We agree with the First Circuit that the Sentencing Commission's use of a term well understood at common law, coupled with a lack of appropriate alternative definitions, directs us to apply the term's...