U.S. v. Rivera-Alonzo

• Decision Date: 26 October 2009
• Docket Number: No. 08-10081.,08-10081.
• Citation: 584 F.3d 829
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael RIVERA-ALONZO, a.k.a. Rafael Alonzo-Rivera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

584 F.3d 829

UNITED STATES of America, Plaintiff-Appellee, v. Rafael RIVERA-ALONZO, a.k.a. Rafael Alonzo-Rivera, Defendant-Appellant.

No. 08-10081.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2009.

Filed October 26, 2009.

Alex D. Gonzalez, Gonzalez & Smith, PC, Chandler, AZ, for the defendant-appellant, Rafael Rivera-Alonzo.

Karla H. Delord, Assistant United States Attorney for the District of Arizona, Phoenix, AZ, for the appellee, United States of America.

Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-06-00748-SMM.

Before: JOHN T. NOONAN, MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges.

N.R. SMITH, Circuit Judge:

A district court does not abuse its discretion in refusing to give an instruction on the lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense. Also, given the record in this case, the district court did not commit clear error in finding on sentencing that the defendant's conduct was motivated by the victim's official status. Accordingly, we affirm.

BACKGROUND AND FACTS

Border Patrol Agent Alex Mendoza encountered Rafael Rivera-Alonzo ("Rivera") and his cousin (Luis Valdez-Cordero) after they illegally entered the United States near San Luis, Arizona on July 15, 2006. When Agent Mendoza approached the men, he was wearing his Border Patrol uniform and was driving in a marked Border Patrol vehicle. When Rivera and Valdez-Cordero began running, Agent Mendoza (driving his vehicle) pursued them. As Agent Mendoza drew near, he ordered the men (in both English and Spanish) to stop, but both men kept running.¹

According to Agent Mendoza, he made two attempts to physically stop Rivera. On the first attempt, the agent drove ahead of Rivera but stumbled while getting out of his truck, allowing Rivera to run past him. On the second attempt, as Agent Mendoza approached, Rivera dove at the agent's legs.

A physical struggle ensued. During the struggle, Agent Mendoza initially subdued Rivera by drawing his gun and ordering him to the ground. But when the agent holstered his gun, Rivera began fighting with the agent and eventually took the agent's gun from him, attempting to pull the slide to chamber a round. As Rivera and Agent Mendoza struggled for control of the gun, a second agent (Jose Oceguera) arrived and helped to subdue Rivera. Agent Oceguera testified that, as he approached Agent Mendoza, Agent Mendoza yelled that Rivera had his gun. Agent Oceguera also testified that he saw Rivera throw a gun to the side.

Rivera admits that he ran from Agent Mendoza in an attempt to keep from being arrested for illegally reentering the United States. However, he asserts that Agent Mendoza tackled him and began hitting him with the butt of the agent's gun. He claims that he grabbed Agent Mendoza's wrist only in an attempt to stop the agent from hitting him. He also claims that he never struck the agent or took the agent's gun (although he stated that the gun fell out of the agent's hand when Rivera grabbed the agent's wrist).

Valdez-Cordero stated that he observed the struggle between Rivera and Agent Mendoza and that Agent Mendoza was hitting his cousin with what appeared to be a gun. Valdez-Cordero also stated that, after the incident, Rivera had a bump on his head.

Rivera was indicted by a federal grand jury on one count of felony Assault on a Federal Officer, in violation of 18 U.S.C. § 111(a)-(b). After a two-day jury trial, Rivera was convicted as charged and sentenced to 120 months' imprisonment. The final jury instructions included instructions on (1) felony assault on a federal officer using a deadly weapon; (2) the offense of felony assault on a federal officer involving physical contact with the victim; and (3) self-defense. Rivera's request for a jury instruction on the lesser-included, misdemeanor offense of simple assault was denied. This appeal followed.

Rivera appeals his conviction for assaulting a federal officer with a dangerous weapon, in violation of 18 U.S.C. § 111(a) & (b), on the basis that the district court failed to instruct the jury on the lesser included offense of simple assault. Rivera also challenges his 120 month sentence, arguing that the district court erred in enhancing the sentence for conduct motivated by the official status of the victim, under U.S.S.G. § 3A1.2.

STANDARD OF REVIEW

When reviewing the district court's denial of jury instruction on a lesser-included offense, we employ a two-part analysis. United States v. Hernandez, 476 F.3d 791, 797 (9th Cir.2007). First, we review de novo whether the "offense on which instruction is sought is a lesser-included offense of that charged." Id. (citing United States v. Fejes, 232 F.3d 696, 703 (9th Cir.2000); United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir.2007)). Second, if the requested instruction pertains to a lesser-included offense, we review the denial of the instruction for abuse of discretion. Id. at 798.

DISCUSSION

I. The District Court Did Not Abuse its Discretion in Refusing to Instruct the Jury on Simple Assault.

Rivera primarily contends that the district court erred in denying his request for an instruction on simple assault, arguing that simple assault is a lesser-included offense of felony assault on a federal officer under 18 U.S.C. § 111. We agree that simple assault is a lesser-included offense of the offenses for which Rivera was charged, but we conclude that the district court did not abuse its discretion in refusing to give the instruction in this case.

An instruction on a lesser-included offense is warranted if "1) the elements of the lesser offense are a subset of the elements of the charged offense, and 2) the evidence would permit a jury rationally to find [Rivera] guilty of the lesser offense and acquit [him] of the greater." Arnt, 474 F.3d at 1163 (internal citations and quotation marks omitted) (quoting Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Thus, a district court does not abuse its discretion in refusing to give a lesser-included offense instruction if the jury could not have convicted the defendant of the lesser-included offense without finding the element(s) that would convert the lesser offense to the greater. See United States v. Torres-Flores, 502 F.3d 885, 888 (9th Cir.2007).

A. Simple Assault is a Lesser-Included Offense of 18 U.S.C. § 111.

We agree that simple assault is a lesser-included offense of felony assault on a federal officer under 18 U.S.C. § 111. At the time of Rivera's offense, § 111 provided, in relevant part:

(a) ... Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates, or interferes with[a 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 in all other cases, 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.

18 U.S.C. § 111 (effective through January 6, 2008).

We previously held that § 111 defines three separate offenses: "(1) assaults that do not involve physical contact (punishable up to one year), (2) assaults that do involve physical contact[²] (punishable up to eight years), and (3) assaults that involve a deadly or dangerous weapon or bodily injury (punishable by up to twenty years)." United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir.2008) (applying 18 U.S.C. § 111 (effective through Jan. 6, 2008)).

The lesser offense at issue in this case is the misdemeanor violation of § 111(a), which applies only in cases "where the acts in violation of [§ 111(a) ] constitute ... simple assault." Chapman, 528 F.3d at 1222 (alterations in original). Because the statute does not define the term, "simple assault," the term is given its common-law meaning. See United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) ("[W]here a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning."). Under the common law, "[s]imple assault `is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.'" United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980) (citations omitted), abrogated on other grounds by Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also Chapman, 528 F.3d at 1219-20. The misdemeanor "simple assault" offense at issue here contains all of the elements of the distinct felony assault offenses under § 111, minus the "physical contact" element of the 8-year felony, and minus the "use[ ] of a deadly or dangerous weapon ... or ... bodily injury" element of the 20-year enhanced felony. See 18 U.S.C. § 111; Chapman, 528 F.3d at 1219. Therefore, simple assault is a lesser-included offense of both the 8-year and the 20-year felonies described in § 111.

B. Rivera Was Not Entitled to an Instruction on Simple Assault.

Although we conclude that simple assault is a lesser-included offense of felony assault on...