United States District Court, D. New Mexico
States Attorney Michael D Murphy Assistant United States
Attorney United States Attorney's Office Albuquerque, New
Mexico Attorney for the Plaintiff.
Assed Richard J Moran Law Office of Ahmad Assed Albuquerque,
New Mexico Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Formal Objections and Corrections to the Pre-Sentence Report,
filed October 5, 2017 (Doc. 60)(“Objections”).
The primary issue is whether Defendant Abner Joe's base
offense level for forcibly and intentionally assaulting a
federal officer with a deadly weapon should be assessed under
U.S.S.G. § 2A2.2 or § 2A2.4. See
Objections at 3-4 (“§2A2.2 Objections”);
Addendum to the Presentence Report, filed October 6, 2016
(Doc. 62)(“Addendum.”). Joe argues that his base
offense level should be 10 under § 2A2.4, not 14 under
U.S.S.G. § 2A2.2, because “no serious bodily
injury was incurred” and because he lacked the intent
required for U.S.S.G. § 2A2.2. Objections at 4. The
United States Probation Office (“USPO”), in
contrast, notes that his base offense level should be 14
under § 2A.2.2, because § 2A2.4(c)(1) indicates
that, if the conduct constituted aggravated assault, §
2A2.2's base offense level is appropriate. Addendum at 1.
The USPO concludes that Joe's conduct amounted to
aggravated assault, because Joe “forcibly and
intentionally assaulted a federal officer, which involved
physical contact, ” in addition to causing
“bodily fluid [to] contact . . . the victim's
face.” Addendum at 1-2.
Court concludes that it will overrule Joe's 2A2.2
Objections. The Court determines that, because Joe retained
enough coordination that evening to throw a hammer, pull
taser probes from his body, and lift a two by four wooden
board, he was alert enough to meet § 2A2.2's
moderate intent requirement.
Indictment and subsequent plea agreement arise from the
following facts and circumstances. Joe became drunk one night
and caused such a disturbance that his mother called the
Navajo Nation Police. See Presentence Investigation
Report ¶ 11, at 5, filed September 25, 2017 (Doc.
58)(“PSR”). When the officers arrived, they found
Joe hiding under a tarp, and Joe told them: “Get away
from me I have a gun I'm going to shoot you.” PSR
¶ 12, at 5. Joe then told them he had an M16 rifle.
See PSR ¶ 12, at 5. As the officers approached,
Joe threw a hammer at them. See PSR ¶¶
13-14, at 5. The officers attempted to tase Joe, but
Joe pulled the taser probe off of him, lifted a
2”x4” wooden board, and said to the officers:
“You guys are scared, you come here.” PSR ¶
13, at 5. One officer told Joe to get down on the ground, or
he would tase Joe. See PSR ¶ 13, at 5. Joe
complied and the officers arrested him. See PSR
¶ 13, at 5. As the officers drove him away, Joe yelled
obscenities at them, and, when he arrived at the correctional
facility, Joe spit on an officer. See PSR
¶¶ 14-15, at 5.
U.S.S.G. § 2A2.2, a base offense level of 14 applies for
conduct that amounts to “aggravated assault.”
U.S.S.G. § 2A2.2. In relevant part, “Aggravated
Assault” is defined as “a felonious assault that
involved (A) a dangerous weapon with intent to cause bodily
injury (i.e., not merely to frighten) with that
weapon. . . .” U.S.S.G. § 2A2.2 Application Note
1. A “dangerous weapon” is “an instrument
capable of inflicting death or serious bodily injury”
and “includes any instrument that is not ordinarily
used as a weapon (e.g., a car, a chair, or an ice
pick) if such an instrument is involved in the offense with
the intent to commit bodily injury.” U.S.S.G.
§§ 1B1.1 Application Note 1(D), 2A2.2 Application
contending that U.S.S.G. § 2A2.2 does not apply to him,
Joe argues that “no serious bodily injury was
incurred” and he lacked the requisite intent, because
his “impaired condition precluded him” from
forming the required intent. Objections at 4. Joe's
argument that U.S.S.G. § 2A2.2 is inapplicable, because
no serious bodily injury occurred, does not persuade the
Court. By its plain language U.S.S.G. § 2A2.2 does not
require serious bodily injury. See U.S.S.G. §
2A2.2 Application Note 1; United States v. Rue, 988
F.2d 94, 96 (10th Cir. 1993)(“§ 2A2.2 should be
utilized if a dangerous weapon was in fact used with intent
to do a bodily harm.”). It is true that one of §
2A2.2's enhancements requires evidence of serious bodily
injury, see U.S.S.G. § 2A2.2(b)(3), but the
base offense level does not, see U.S.S.G. §
Joe's second argument, that he lacked the requisite
intent because he was intoxicated, the Court concludes that
U.S.S.G. § 2A2.2 still applies to Joe's actions.
Under U.S.S.G. § 2A2.2, “intent to cause bodily
injury [is] a low barrier.” United States v.
Rodella, No. 14-2783, 2015 WL 711941, at *17 (D.N.M.
Feb. 15, 2015)(Browning, J.). The Tenth Circuit has concluded
that, even when intoxicated, an individual can form the
requisite intent for U.S.S.G. § 2A2.2 when the
person's actions have signs of coordination. See
United States v. Antone, 461 Fed.Appx. 815, 817-18 (10th
Cir. April 5, 2012)(unpublished)(concluding that a person
with a .197 blood alcohol content formed the requisite intent
for U.S.S.G. § 2A2.2, in part, because he
“appear[ed] to have control of his actions . . . [and]
displayed no signs of difficulty
walking”). Several other Courts of Appeal have
reached similar conclusions. See United States v.
Guardipee, 370 Fed.Appx. 858, 859 (9th Cir. March 12,
2010)(unpublished); United States v. Osborne, 164
F.3d 434, 438, 440 (8th Cir. 1999).
Joe was not so intoxicated that he lacked the requisite
intent to cause bodily injury. First, he threw a hammer,
which Joe admits was a dangerous weapon. See Plea
Agreement at 4, filed July 12, 2017 (Doc.
55)(“Plea”)(“I threw a hammer, which can be
a deadly or dangerous weapon, at one of the officers”).
The Court concludes that a thrown hammer could cause bodily
injury and that it is dangerous weapon under U.S.S.G. §
2A2.2. Second, there is evidence that Joe still retained a
measure of coordination. He was deft enough to pull the taser
probes from his body, and was coordinated enough to lift a
two by four wooden board. See PSR ¶ 13, at 5.
Although Joe argues that he could not have formed the
required intent, because he “could not even recall the
events of the night, ” there is no evidence that Joe
lacked normal physical dexterity. Objections at 4. No one
noted, for example, that Joe slurred his speech or walked
unevenly. In addition, Joe's Admission of Facts supports
an interpretation that he retained coordination. See
Plea at 4. He notes that one of the officers “shot me
with a Taser, and I was not shocked, but put down the board
and followed their commands at that point.” Plea at 4.
From those facts, it does not appear that Joe was drunken and
out of control, but responsive and retained some power over
his actions. The Court, accordingly, concludes, by a
preponderance of the evidence, that the correct base offense
level should be 14 as directed by U.S.S.G. §
Court's determination that U.S.S.G. § 2A2.2 applies
moots Joe's remaining objections. He argues that U.S.S.G.
§ 2A2.2's enhancements and § U.S.S.G. §
3A1.2(B)'s victim enhancement are inapplicable, because
his actions do not constitute an aggravated assault.
See Objections at 5. The Court concludes, however,
that he has committed an aggravated assault. Accordingly, the
Court will overrule these objections.
IS ORDERED that the Defendant's Objections to
the application of U.S.S.G. § 2A2.2 in his Formal
Objections and Corrections to the Pre-Sentence Report, ...