United States v. Siler

• Decision Date: 13 November 2013
• Docket Number: No. 12–14211.,12–14211.
• Citation: 734 F.3d 1290
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Morgan SILER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

734 F.3d 1290

UNITED STATES of America, Plaintiff–Appellee,

v.Morgan SILER, Defendant–Appellant.

No. 12–14211.

United States Court of Appeals, Eleventh Circuit.

Nov. 13, 2013.

Paul Jones, Kim S. Dammers, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, Atlanta, GA, for Plaintiff–Appellee.

Natasha Perdew Silas, Jeffrey Lyn Ertel, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:09–cr–00135–TWT–LTW–1.

Before ANDERSON and EDMONDSON, Circuit Judges, and MOTZ,^* District Judge.

ANDERSON, Circuit Judge:

After a criminal jury trial, Defendant–Appellant Morgan Siler appeals his conviction and sentence for assaulting a corrections officer with a deadly or dangerous weapon in violation of 18 U.S.C. § 111(b). After careful review, and with the benefit of oral argument, we affirm Siler's conviction and sentence.

I. BACKGROUND

A. Offense Conduct

In June 2008, Siler was a holdover inmate at a federal correctional facility in Georgia while en route to a federal correctional facility in Virginia. One morning while Siler was in the Georgia facility, a corrections officer opened Siler's cell door so that Siler could get breakfast. Siler placed a homemade rope around the officer's neck and forcibly choked him. Several officers responded to help and forcibly removed the officer from Siler's grip.

B. Indictment

In March 2009, a federal grand jury returned a two-count indictment against Siler. Count One charged Siler with attempted murder of a corrections officer, in violation of 18 U.S.C. § 1114(3). Count Two charged that Siler “knowingly and by means and use of a dangerous weapon, that is, a handmade rope, did forcibly assault, resist, oppose, impede, intimidate, and interfere with R.M., a Corrections Officer, while he was engaged in his official duties, in violation of Title 18, United States Code, Section 111.”

C. Trial

The jury found Siler not guilty of Count One (attempted murder) and guilty of Count Two (assault on a corrections officer). As it relates to Count Two, the verdict form given to the jury read:

Count II

(Assault on Corrections Officer)

We the jury find the Defendant MORGAN SILER

____ Guilty

____ Not Guilty

Was a deadly or dangerous weapon used?

____ Yes

____ No

Siler agreed to the amended verdict form.

In its instruction to the jury on Count Two, the district court charged the offense elements as:

One, the Defendant forcibly assaulted the person described in the indictment; two, the person assaulted was a federal officer performing an official duty; and, three, the Defendant used a deadly or dangerous weapon.

This charge was consistent with Offense Instruction 1.2 from the Eleventh Circuit Pattern Jury Instructions: “Forcibly Assaulting a Federal Officer: with Use of a Deadly Weapon or Inflicting Bodily Injury. 18 U.S.C. § 111(b).” The court charged that “forcible assault is an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent and immediate.” The court clarified that forcible assault “includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death regardless of whether the act is carried out or the person is injured.” The court charged that “[a] deadly or dangerous weapon includes any object that a person can readily use to inflict serious bodily harm on someone else.” The court also charged, “To show that such a weapon was used, the Government must prove that the Defendant possessed the weapon and intentionally displayed it during the forcible assault.” When describing the verdict form to the jury, the district court instructed that if the jury found Siler guilty of Count Two, the jury must answer the question, “Was a deadly or dangerous weapon used?”

Siler made no objections to the court's charge, as given, and Siler expressly agreed to the language of the verdict form. During deliberations, the jury asked the court for a legal definition of deadly or dangerous weapon. With the agreement of the parties, the court re-instructed the jury with the relevant instructions. Siler made no objection to the court's re-charge.

The jury found Siler not guilty of Count One (attempted murder) and guilty of Count Two (assault on a corrections officer). With respect to Count Two, the jury found that Siler used a deadly or dangerous weapon.

D. Sentencing

Siler objected to various aspects of his Presentence Investigation Report. After considering and ruling on Siler's objections, the court calculated a guidelines range of 188 to 235 months' imprisonment.

Siler then argued that the indictment charged Count Two as a misdemeanor because it failed to allege physical contact. Siler argued that § 111(b) cannot be used to “enhance” the one-year sentence for a misdemeanor offense under § 111(a) to twenty years. Thus, Siler concluded, § 111(b) did not apply to his case, and the maximum possible penalty for his misdemeanor offense was twelve months' imprisonment.

The district court overruled Siler's objection. The court stated, “[T]he jury explicitly found that a dangerous or deadly weapon was used, which ... makes this a felony offense under 111(b).” The court applied an upward variance and sentenced Siler to the statutory maximum penalty under § 111(b), twenty years' imprisonment.

Siler now appeals.

II. DISCUSSION

On appeal, Siler argues that the district court incorrectly interpreted 18 U.S.C. § 111.¹ Specifically, Siler argues that 18 U.S.C. § 111(a) contains two offenses, misdemeanor assault and felony assault, and that felony assault requires proof of physical contact or the intent to commit another felony. Siler argues that § 111(b) provides for an enhanced penalty only if (1) the defendant is convicted of felony assault under § 111(a) and (2) the defendant is shown to have used a deadly or dangerous weapon. Siler concludes that because the government did not allege or prove, and the jury did not find, physical contact or the intent to commit another felony, he was necessarily convicted of misdemeanor assault. Thus, Siler contends, he faced a one-year statutory maximum penalty for his misdemeanor assault, and the district court erred by sentencing him to twenty years' imprisonment.

The current version of § 111 provides in relevant part as follows:

(a) In General.—Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated [as 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 where such acts involve physical contact with the victim of that assault or the intent to commit another felony, 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 (emphasis added).

Siler asserts that § 111(b) only applies if a defendant has committed an assault that involves physical contact with the victim of that assault or the intent to commit another felony. To explain how Siler has misinterpreted the statute, it is helpful to understand that § 111 establishes three separate crimes. A previous version of § 111 was addressed in United States v. Martinez, 486 F.3d 1239 (11th Cir.2007). In Martinez—which involved a conviction under only § 111(a)—we observed that three categories of forcible assault are establishedby § 111(a) and (b). Id. at 1244. Subsequent to the version addressed in Martinez, amendments in 2002 and 2008 made changes to the statute, but not changes relevant to Martinez's observation that the statute establishes three categories of forcible assault. The version of § 111 addressed in Martinez provided as follows:

(a) In General.—Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated [as 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,² be fined under this title or imprisoned not more than 3 years,³ 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 10 years,⁴ or both.

Of the three categories of forcible assault recognized in Martinez, the first two were established by subsection (a). The first category was simple assault “where the acts in violation of this section constitute only simple assault,” which was punishable by not more than one year's imprisonment. The second category within subsection (a) was “all other cases” where the acts specified in subsection (a) constituted a felony assault, which was punishable by not more than three (now eight) years. The third category of forcible assault identified in Martinez was established by subsection (b) of § 111, which provided that “[w]hoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon ... or inflicts bodily injury, shall be ... imprisoned not more than ten [now twenty] years.”

Although Martinez did not expressly say that the three separate categories of “forcible assaults” were...