U.S. v. Segien, 96-3355

• Decision Date: 28 May 1997
• Docket Number: No. 96-3355,96-3355
• Citation: 114 F.3d 1014
• Parties: 47 Fed. R. Evid. Serv. 163, 97 CJ C.A.R. 797 UNITED STATES of America, Plaintiff-Appellee, v. Keith R. SEGIEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1014

114 F.3d 1014

47 Fed. R. Evid. Serv. 163, 97 CJ C.A.R. 797

UNITED STATES of America, Plaintiff-Appellee, v. Keith R. SEGIEN, Defendant-Appellant.

No. 96-3355.

United States Court of Appeals Tenth Circuit.

May 28, 1997.

Submitted on the briefs. ^*

Jackie N. Williams, United States Attorney, and T.G. Luedke, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

David J. Phillips, Federal Public Defender, and Marilyn M. Trubey, Assistant Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Keith R. Segien was convicted of two counts of violating 18 U.S.C. § 111 (1994), which prohibits, inter alia, assaulting, resisting, or impeding certain federal officers or employees. He makes a number of arguments on appeal regarding his convictions and the sentence imposed by the district court. We affirm.

On March 10, 1995, Ms. Kristy Rodgers, a Corrections Officer at the Leavenworth, Kansas, United States Penitentiary, was on duty at the B cell house metal detector, where she monitored inmates entering the cell house. At approximately 11:30 a.m., Mr. Segien, wearing what Officer Rodgers thought to be a UNICOR (prison industries) work uniform, sought entry to the cell house. Because UNICOR workers were not allowed into the cell house at that time of day, Officer Rodgers stopped and questioned Mr. Segien. Mr. Segien rapidly became verbally abusive and belligerent.

Officer Rodgers directed Mr. Segien to Center Hall, where their dispute continued, attracting the attention of Case Manager Russ Purdue. Mr. Purdue approached and attempted to calm Mr. Segien. However, Mr. Segien continued to respond with hostile language. Mr. Purdue then informed Mr. Segien he was going to take him to the "Lieutenant's" office, and Officer Rodgers ordered him to turn around to be handcuffed. The situation further escalated, and Mr. Segien began swinging his fists, hitting Mr. Purdue in the shoulder. Officer Rodgers and Mr. Purdue attempted to control Mr. Segien physically, and the three fell to the floor. During the struggle Mr. Segien grabbed Mr. Purdue's genitals and his weight landed upon one of Mr. Purdue's knees, injuring it. Other officers entered the fray and assisted in restraining Mr. Segien.

Prison officers, including Mr. Purdue, then escorted Mr. Segien to the Lieutenant's office, approximately fifty yards from the scene of the altercation. While waiting to enter the office and under the officers' control, Mr. Segien spat on Mr. Purdue and threatened to kill him. In response to further struggles by Mr. Segien, the officers placed him in leg irons and transferred him to the special housing unit, a disciplinary holding facility, where he was placed in segregation. ¹

Apparently Mr. Segien remained perturbed. At approximately 2:00 p.m., about two hours after the earlier incidents, he ripped off the sprinkler head in his cell, causing water to pour in. He then refused to obey officers' orders, necessitating they "go in and get him." During their doing so, Mr. Segien suffered a contusion on his left ear, which resulted in some hearing loss.

As Mr. Purdue left the Lieutenant's office, his knee gave out and he collapsed. Unable to walk, he was taken to a local hospital. Mr. Purdue, a former marine, testified he suffered intense pain from the injury to his knee. A doctor recommended arthroscopic surgery, but ultimately Mr. Purdue decided upon a treatment of physical therapy. The doctor told Mr. Purdue not to put any weight on his knee for two weeks, during which time he moved around through the use of crutches. His knee was immobilized in a soft cast for a time, and then he underwent approximately two months of physical therapy. He was off work for just over two weeks.

Mr. Segien was indicted on three counts of violating 18 U.S.C. § 111(a)(1), by refusing to submit to restraints and swinging his fists in the direction of Officer Rodgers (Count I), by refusing to submit to restraints and grabbing Mr. Purdue by the testicles (Count II), and by spitting on Mr. Purdue and saying "I'll kill you" (Count III). A jury found Mr. Segien not guilty of Count I, but guilty of Counts II and III. The district court sentenced Mr. Segien to 105 months imprisonment on Count II, and 36 months imprisonment on Count III, running concurrently with the sentence imposed for Count II. The court also ordered Mr. Segien to serve three years supervised release for Count II upon his release from imprisonment, and, running concurrently, one year supervised release for Count III. Additionally, the court ordered Mr. Segien to pay a $50 special assessment on each of Counts II and III.

Mr. Segien raises six issues on appeal: (1) the district court erred in applying the ten-year statutory maximum set forth in § 111(b) rather than the three-year maximum term of incarceration of § 111(a); (2) the district court erred in applying United States Sentencing Guideline § 2A2.2 instead of § 2A2.4; (3) the district court sentenced him in excess of the sentencing guideline range on Count III; (4) Count III was multiplicious of Count II; (5) the district court made erroneous Fed.R.Evid. R. 404(b) evidentiary rulings; and (6) the district court erred in not departing downward when sentencing him. We address these issues in the order presented.

Mr. Segien first challenges the district court's use of 18 U.S.C. § 111(b) to sentence him to more than three years imprisonment on Count II. 18 U.S.C. § 111 provides:

Assaulting, resisting, or impeding certain officers or employees

(a) In general.--Whoever--

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;[ ²] or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,

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 three years, or both.

(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon ... or inflicts bodily injury, shall

be fined under this title or imprisoned not more than ten years, or both.

The district court premised the 105-month sentence for Count II upon its finding, arrived at during sentencing, that Mr. Segien had caused "bodily injury" to Mr. Purdue, rendering the ten-year statutory maximum set forth in § 111(b) applicable.

Mr. Segien asserts § 111(b) creates a separate offense from that set forth in § 111(a), one which contains an additional element (use of a deadly weapon or bodily injury) that the prosecution must prove beyond a reasonable doubt. Because the issue of bodily injury was not presented to the jury, he claims the judge could sentence him to no more than the three-year maximum period of imprisonment stated in § 111(a).

We note "the Due Process Clause protects [criminal defendants] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) (emphasis added). However, facts impacting the severity of a sentence need not be proven beyond a reasonable doubt, though some constitutional limitations still adhere. Patterson v. New York, 432 U.S. 197, 210, 214 & n. 15, 97 S.Ct. 2319, 2327, 2329 & n. 15, 53 L.Ed.2d 281 (1977); see also id. at 207, 97 S.Ct. at 2325-26 (State need not "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment"). Thus, the question at hand is whether "bodily injury" is an element of the crime, which must be proven beyond a reasonable doubt, or whether it is simply a sentence enhancement.

We are guided by the Supreme Court case of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Court examined the constitutionality of a provision of Pennsylvania's Mandatory Minimum Sentencing Act mandating judges sentence anyone convicted of certain enumerated felonies to no less that five years imprisonment if the judge found, by a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. Id. at 80-82, 106 S.Ct. at 2413-14. The defendant appellants contended visible possession of a firearm was an element of the offenses for which they were being sentenced and therefore must be proven beyond a reasonable doubt. Id. at 83-84, 106 S.Ct. at 2414-15. The Court, rebuffing the appellants' contention, noted the legislature's definition of the elements of the offense is usually dispositive in distinguishing between essential elements of an offense and mere sentencing factors. Id. at 85, 106 S.Ct. at 2415-16.

In the present case, Congress clearly intends subsection (b) to be a sentencing enhancement provision. First and foremost, when Congress separated § 111 into two subsections, it also explicitly titled the latter subsection "Enhanced penalty" in bold print. Pub.L. No. 100-690, 102 Stat. 4386. The first step in statutory interpretation is examination of the statutory language, see Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990); Central Trust Co. v. Official Creditor's Comm. of Geiger Enters., Inc., 454 U.S. 354, 359-60, 102 S.Ct. 695, 697-98, 70 L.Ed.2d 542 (1982) (per curiam), and a more manifest statement of Congress' intent that subsection (b) operate as a sentencing enhancement...