U.S. v. Vallery

• Decision Date: 07 February 2006
• Docket Number: No. 05-2251.,05-2251.
• Citation: 437 F.3d 626
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Roosevelt D. VALLERY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

437 F.3d 626

UNITED STATES of America, Plaintiff-Appellant, v. Roosevelt D. VALLERY, Defendant-Appellee.

No. 05-2251.

United States Court of Appeals, Seventh Circuit.

Argued November 8, 2005.

Decided February 7, 2006.

Stephen B. Clark (argued), Angela Scott, Office of the United States Attorney Criminal Division, Fairview Heights, IL, for Plaintiff-Appellant.

Stephen C. Williams (argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellee.

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

The government appeals from the district court's sentencing of Roosevelt Vallery as a misdemeanant following his conviction under 18 U.S.C. § 111(a). It is the government's contention that the indictment properly alleged a felony rather than a misdemeanor. Vallery's conviction is not in dispute. A fair reading of the statute requires us to conclude that the misdemeanor provision of § 111(a) applies to all conduct prohibited by the subsection. Having determined that Vallery's conviction was for a misdemeanor, we affirm his twelve-month sentence.

I. BACKGROUND

The criminal statute involved in this case is 18 U.S.C. § 111. It provides:

(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; 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 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.

The designation in 18 U.S.C. § 1114 includes federal corrections officers.

Correctional Officer Ron Garver was employed at the Federal Correctional Institution in Greenville, Illinois. On July 24, 2003, he was instructed to escort Roosevelt Vallery, an inmate, to the lieutenant's office. Garver found Vallery in the food services area and told Vallery to come with him to the lieutenant's office. Garver escorted Vallery alone and unrestrained. Garver noticed Vallery growing increasingly nervous and evasive as they approached the lieutenant's office, so Garver directed Vallery into a restroom to strip search him for contraband.

As Vallery removed his clothes, his apprehension intensified. When Vallery got to his underwear, Vallery pushed Garver out of his way and ran into an empty toilet stall. Garver followed Vallery into the stall and repeatedly yelled for Vallery to stop. When Garver entered the stall, he saw Vallery remove an object from his underwear and throw it into the toilet. Garver attempted to prevent Vallery from flushing the item by placing his arm around Vallery's neck and shoulder and pulling back. Vallery backed Garver into the stall to break Garver's hold and then flushed the item.

During the melee, Garver used his free hand to radio for help. Other officers soon arrived, handcuffed Vallery, and placed him in a special housing unit. Garver received minor injuries during the struggle and his uniform was ripped; Vallery was unharmed. Vallery later told investigators that the contraband he flushed down the toilet was a shank.

The facts described above were presented to a federal grand jury in the Southern District of Illinois. The grand jury returned the following one-count indictment:

THE GRAND JURY CHARGES:

On or about July 24, 2003, in Bond County, Illinois, in the Southern District of Illinois,

ROOSEVELT D. VALLERY,

defendant herein, did knowingly and forcibly assault, resist, impede, and interfere with Ron Garver, a Federal Correctional Officer, while he was engaged in his official duties, to wit: conducting a visual search and restraining a federal inmate attempting to dispose of contraband, in violation of Title 18, United States Code, Sections [sic] 111(a)(1).

A jury trial ensued. Vallery objected to the government's proposed jury instruction on non-simple assault arguing that because the government did not allege physical force in the indictment, Vallery had only been charged with simple assault, a misdemeanor offense. The district court agreed and refused to give the government's proposed felony instruction.

A verdict form was submitted to the jury which contained two blanks. Under the first blank was typed "(Guilty/Not Guilty)" and under the second blank was typed "(assaulting, resisting, impeding or interfering with)". The judge explained to the jury that it should determine whether Vallery was guilty or not guilty and enter that determination in the first blank. The judge further explained that if the determination was guilty, the specific conduct that the jury found Vallery committed should be entered in the second blank. The jury returned a guilty verdict and wrote the words "resisting, impeding, interfering with" on the special verdict form.

Following Vallery's conviction, the probation officer concluded in the presentence report ("PSR") that Vallery had been convicted of a felony offense subject to a statutory maximum term of imprisonment of up to eight years. The PSR's calculation of Vallery's sentencing guideline range was 51-63 months' imprisonment. Vallery objected, arguing that he had only been convicted of a simple assault and was therefore subject to the one-year maximum sentence. Finding that Vallery was charged only with a misdemeanor, the district court imposed a sentence of twelve months' imprisonment.

II. ANALYSIS

As a preliminary matter, we first address the government's argument that Vallery's indictment did allege physical contact. If so, then there is no need for us to deal with the meaning of § 111. But as it was raised for the first time at oral argument, this argument is waived. Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir.2004) (citation omitted). In any event, we reject the government's premise that all "restrainings" necessarily involve physical contact and conclude the indictment did not allege physical contact.

We now turn to the same statutory issue as was twice before the district court — that is, whether Vallery's indictment, which did not allege physical contact, charged him under § 111 with a felony or a misdemeanor. Section 111 is designed to protect certain federal officers and employees of the United States performing their official duties by criminalizing assaults against them. United States v. Feola, 420 U.S. 671, 678-84, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). In 1994, Congress added the misdemeanor simple assault provision to § 111(a) by amendment. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 320101(a)(1), 108 Stat. 1796, 2108.

Adhering to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), several other circuits have found post-1994 amendment § 111 to constitute three separate offenses: first, misdemeanor simple assault under § 111(a); second "all other cases" felony assault under § 111(a); and third, felony assault involving a deadly or dangerous weapon or resulting in bodily injury under § 111(b). See, e.g., United States v. Hathaway, 318 F.3d 1001, 1006-08 (10th Cir.2003); United States v. Yates, 304 F.3d 818, 821-22 (8th Cir.2002); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.2001); United States v. Chestaro, 197 F.3d 600, 608 (2d Cir.1999); United States v. Nunez, 180 F.3d 227, 233 (5th Cir.1999). Even though we have not specifically so held, we assumed as much in United States v. Gray, 332 F.3d 491, 492-93 (7th Cir.2003) (finding error in sentence exceeding statutory maximum of § 111(a) where indictment failed to allege violation of § 111(b)). The parties do not dispute the issue, and we think the question is settled.

Because Vallery was charged with violating § 111(a) but not § 111(b), only the first two offenses, simple assault and felony "all other cases" assault, are relevant here. The government's argument is that the indictment properly alleged "all other cases" felonious assault by including in its allegations that Vallery resisted, impeded and interfered with Garver, and, therefore, that the district court was wrong to rule that it only alleged simple assault because physical contact was not alleged.

The linchpin in the government's argument is that the "physical contact rule" of felonious assault, in which physical contact is an element of the crime, applies only to the "assault prong" of § 111(a)(1) and not to the other prohibited conduct — namely, resisting, opposing, impeding, intimidating, and interfering with. Therefore, the government concludes, physical contact is not required to rise to the level of a felony for violations of § 111(a) other than "assaults," and its absence in the indictment does not preclude a felony conviction. Vallery, on the other hand, argues that the misdemeanor simple assault provision must be applied to all conduct prohibited by § 111(a)(1). Because we are presented with the issue of statutory interpretation, a question of law, we review de novo. United States v. Jones, 372 F.3d 910, 911-12 (7th Cir.2004).

When interpreting statutes, first and foremost, we give words their plain meaning unless doing so would frustrate the overall purpose of the statutory scheme, lead to absurd results, or contravene clearly expressed legislative intent. Id. at 912; see also United States v. Chemetco, Inc., 274 F.3d 1154, 1158-59 (7th Cir.2001...