In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3713

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK A. SAMUELS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 04 CR 30155—Michael J. Reagan, Judge.

____________

ARGUED SEPTEMBER 11, 2007—DECIDED APRIL 10, 2008

____________

Before RIPPLE, MANION, and WOOD, Circuit Judges.

MANION, Circuit Judge. Mark Samuels (“Samuels”)

was charged in a one-count indictment with aiding and

abetting a felon in possession of a firearm in violation of

18 U.S.C. §§ 2 and 922(g)(1). After a jury returned a

guilty verdict, the district court sentenced Samuels to a

seventy-eight-month term of imprisonment. Samuels appeals his conviction and sentence, and we affirm.

I.

Sometime in the fall of 2004, Mark Samuels provided his

cousin, Stephen Perkins (“Stephen”), with a Glock .45
2 No. 06-3713

1 At oral argument, Samuels’s counsel relayed that Samuels

tried to reclaim the Glock because he wanted to prevent his

cousin or him from being tied to some criminal history that

was connected with that firearm.

caliber firearm for Stephen’s protection after Stephen had

been robbed. Samuels later sought to retrieve the Glock

from Stephen. After unsuccessfully attempting to contact Stephen through Stephen’s mother, Samuels told

another cousin, Katraelyus Franklin (“Katraelyus”), that he

wanted his Glock and asked if he knew where Stephen

was.1

 On October 13, 2004, Katraelyus drove Samuels and

Samuels’s brothers, Marlon Samuels and Terry Samuels,

a convicted felon, (“Marlon” and “Terry,” respectively),

in his van to find Stephen. In addition to bringing along

his brothers, Samuels also brought a baseball bat and a

gun, an FEG Model FP9 .9mm semi-automatic pistol

(“FEG” or “gun”), with him. Samuels later stated during

a taped police interview that he brought the gun because he was afraid Stephen might fight him or that he

might encounter “escalated problems” in the course of

trying to retrieve the Glock from Stephen.

The group found Stephen at County Line, a liquor

store and gas station located in Cahokia, Illinois. Stephen

recognized his cousins and walked toward the van to

talk with them. Stephen testified at trial that Samuels

“turn[ed] around to give Terry the gun when I was walking towards them.” Upon further questioning, Stephen

clarified that he had not actually seen what Samuels

handed Terry, but rather he “watched [Samuels] go into

his pants and pull something out [Stephen] reflected as a

gun, turn[ ] around and hand it to [Samuels’s] brother.”

Although the transfer of the gun from Samuels to Terry
No. 06-3713 3

was not clear, there was no question that Terry had the

gun in the encounter with Stephen that followed.

Samuels patted down Stephen and, when he did not

find the Glock, went to search Stephen’s car. At Samuels’s

direction, Marlon and Terry took Stephen around the

side of the store building. When he did not find the Glock

in the car, Samuels returned with the ashtray from Stephen’s car and began beating Stephen in the face with it.

Marlon and Terry also struck Stephen. Stephen testified

that all of the men started hitting him until he passed out.

The County Line clerk heard a scuffle and yelling outside the store where he saw one person holding Stephen,

one person standing next to him, and another person

hitting him. The clerk also testified at trial that Stephen

was bleeding and that one of the individuals was pointing

a gun at him. The clerk identified the clothing of the person with the gun, a jacket hood and pair of pants, as

the same clothing identified by Stephen as having been

worn by Terry that day. At that point, the clerk yelled at

them to take their argument somewhere else, so the

group piled into Katraelyus’s van and left.

From County Line, Katraelyus drove to Samuels’s home.

While en route, Samuels and Terry struck Stephen. Stephen

told them that another cousin, Tracy Perkins (“Tracy”), had

the Glock in her car and that she was working at an area

nursing home. Once at Samuels’s house, Samuels beat

Stephen with a bat, and Marlon beat him with brass

knuckles. Leaving Samuels’s home, Samuels, Stephen,

Terry, Katraelyus, and Marlon drove in Samuels’s van

to the nursing home. Stephen testified that Terry beat

Stephen during that drive and that Samuels never told

Terry to stop hitting Stephen.
4 No. 06-3713

Upon arriving at the nursing home, Samuels went

inside and told Tracy that he was Stephen’s cousin and

that Stephen needed to get something out of her car. When

she walked outside the nursing home, Tracy saw Stephen,

who she testified was “beat up bad.” Then Tracy and

Samuels walked to Tracy’s car located in a back parking

lot where they searched the trunk. Again, Samuels was

unable to find the Glock. While Tracy drove her car to

the front lot where Samuels’s van was parked so Stephen

could go through the car and get whatever was his out

of the car, Samuels walked back to his van.

During the time Tracy and Samuels were searching

her car, Terry allowed Stephen to exit the van in order

to get some fresh air. Stephen testified at trial that Terry

had the FEG in his pants at that point and that he jumped

on Terry’s back in an attempt to wrest the FEG from him.

A fight then ensued, and Stephen testified that at Terry’s

direction Marlon attempted to cut Stephen and that once

he was able to break away from Terry he fell because he

was bleeding badly. What Samuels did upon his return to

the van is disputed: Samuels told Detective Becker,

who had conducted his post-arrest interview, that when

he returned Stephen and Terry were fighting, Stephen

was bloody, and he separated Stephen and Terry from

fighting. Stephen, however, testified at trial that Samuels

grabbed him by the collar and struck him in the forehead with the butt of the FEG, and then the group threw

Stephen back in the van. Based on Stephen’s and Samuels’s

testimony, Samuels must have “separated” Terry and

Stephen by taking the gun from Terry (who, according

to Stephen’s testimony, had the gun in his pants) and

hitting Stephen with it. Stephen sustained facial injuries

as a result of the events that occurred in the parking lot,

leaving blood there as well as in the van.
No. 06-3713 5

Before being thrown back into the van, Stephen shouted

to Tracy that one of the men had a gun. Tracy ran inside

the nursing home where she called 911. A tape recording

of Tracy’s 911 call was played for the jury. During the

call, Tracy frantically told the operator that men had

taken her car, were beating and killing her cousin, and

had a gun. Tracy also provided a description of her car

and Samuels’s van. While Tracy was placing her 911 call,

Katraelyus drove away with Stephen, Samuels, and Terry

as passengers. Marlon left driving Tracy’s car.

Responding to the 911 call, Officer Brian Dowdy of the

Belleville Police Department noticed a van that fit the

description relayed by dispatch, so he started to follow

the van, losing sight of it for a short period of time. Seeing

a police car behind his van and knowing that Terry could

get in trouble if he was found in the van with a gun,

Samuels stated that he tried to throw the gun out of the

van, but it landed in Terry’s lap, who, in turn, threw it

out of the vehicle. Stephen, on the other hand, testified

at trial that Samuels handed Terry the gun and told Terry

to take off running, after which Terry jumped out of

the slowly moving van. Either way, Belleville police

officers later located the gun in a flower planter box of a

nearby house, and Terry was later apprehended in the

neighborhood where the van eventually was stopped.

Officer Dowdy temporarily lost sight of Samuels’s van,

but did confirm that it met the description relayed by

dispatch. Terry apparently exited the van, along with

the FEG, when Officer Dowdy lost sight of it, because

when he caught up with it and pulled it over, Terry was

not in it. Instead, inside the van he found Stephen bleeding

from his face and head. Samuels described his gun to

Officer Dowdy and told him it was thrown from the van.
6 No. 06-3713

On December 16, 2004, Samuels was charged in a onecount indictment with aiding and abetting a felon in

possession of a firearm in violation of 18 U.S.C. §§ 2 and

922(g)(1). At his plea hearing, Samuels agreed that the

government would be able to prove beyond a reasonable

doubt that his brother, Terry, was a prior convicted

felon who possessed a firearm that had traveled in interstate commerce. In response to the court’s inquiry,

Samuels also agreed that the government could prove

beyond a reasonable doubt that he “knowingly aided in

the commission of an offense by associating with the

criminal activity, participating in the activity, and trying

to make it succeed.” After the government read its statement of the case, however, Samuels stated that while he

did bring the FEG into the van, he did not hand Terry

the gun or show him where it was. The district court

declined to accept Samuels’s guilty plea, concluding that

Samuels only admitted to having the FEG in the van and

did not admit to aiding and abetting Terry in possessing

the FEG. At that same hearing, Samuels attempted to enter

a plea pursuant to North Carolina v. Alford, 400 U.S. 25,

27 (1980), by which he would conditionally plead guilty

to the crime charged, while maintaining his innocence.

While the district court was amenable to accepting an

Alford plea from Samuels, the government would not

agree to an Alford plea, and the case was set for trial.

At trial, Stephen, Katraelyus, Tracy, Officer Dowdy,

and Detective Becker of the Belleville Police Department

testified. During the course of Detective Becker’s testimony, the jury viewed a video recording of Samuels’s postarrest interview. In addition, Agent Dan Owens of the

Bureau of Alcohol, Tobacco, and Firearms testified that

the FEG had been manufactured in Hungary and im-
No. 06-3713 7

ported into the United States. Bart Naugle, a DNA Analyst,

also testified stating that he conducted a DNA test on the

blood swabbed from the FEG and concluded that it was

from Stephen Perkins. Over Samuels’s objection, the

jury also heard extensive testimony about the beatings

Stephen sustained, as well as a tape of Tracy’s 911 call,

and saw photographs of the blood in the nursing home

parking lot and of Stephen’s injuries. The jury convicted

Samuels.

The United States Probation Office prepared a

presentence investigation report (“PSR”). The PSR set

forth a total offense level of twenty-eight and a criminal

history category I resulting in a sentencing range under

the United States Sentencing Guidelines of seventy-eight

to ninety-seven months’ imprisonment. Samuels argued

that the aggravated assault cross-reference which the

PSR applied was improper because the government

failed to seek a special verdict for aggravated battery. In

addition, he objected to the assessment of six points to

his offense level for Stephen sustaining injuries that

were serious to permanent. Samuels also asserted that he

was entitled to a reduction in his offense level for acceptance of responsibility and concluded that his total

offense level should be fourteen with a criminal history

category I, resulting in a Guideline range of fifteen to

twenty-one months’ imprisonment. After hearing argument from both Samuels’s attorney and the government,

as well as testimony from Stephen, Stephen’s mother, and

Samuels’s wife, the district court overruled Samuels’s

objections and sentenced him to a seventy-eight-month

term of imprisonment. Samuels appeals, challenging the

sufficiency of the evidence supporting his conviction, the

admission of the 911 tape and photographs, and the district court’s application of the Guidelines.
8 No. 06-3713

II.

On appeal, Samuels challenges the sufficiency of the

evidence supporting the jury’s verdict. We note that

“[d]efendants challenging the quantum of evidence

supporting a jury verdict face a daunting task.” United

States v. Wortman, 488 F.3d 752, 754 (7th Cir. 2007) (quoting

United States v. Luster, 480 F.3d 551, 555 (7th Cir. 2007)). In

reviewing a sufficiency of the evidence challenge, we

“consider[ ] the evidence in the light most favorable to the

government, defer[ ] to the credibility determinations of

the jury, and . . . overturn[ ] a verdict only when the record

contains no evidence, regardless of how it is weighed,

upon which a rational trier of fact could find guilt beyond

a reasonable doubt.” United States v. Dabney, 498 F.3d

455, 460 (7th Cir. 2007) (quoting United States v. Cummings,

395 F.3d 392, 397 (7th Cir. 2005)).

To be guilty of aiding and abetting, an individual must

have knowledge of the underlying illegal activity and a

desire to assist in the success of the activity, and provide

an act of assistance. United States v. Serrano, 434 F.3d 1003,

1004 (7th Cir. 2006); United States v. Stott, 245 F.3d 890, 904

(7th Cir. 2001). “[M]ere presence at the time of the crime

is insufficient to support a conviction for [aiding and

abetting].” United States v. Bonty, 383 F.3d 575, 579 (7th Cir.

2004). “Under an aiding and abetting theory, ‘[p]articipation may be established by circumstantial evidence,

and the evidence may be of relatively slight moment.’ ”

United States v. Folks, 236 F.3d 384, 389 (7th Cir. 2001)

(quoting United States v. Coleman, 179 F.3d 1056, 1061 (7th

Cir. 1999)). “An aider presumptively intends the natural

and probable consequences of his actions . . . .”

United States v. Andrews, 442 F.3d 996, 1002 (7th Cir. 2006)

(internal citation and quotation omitted).
No. 06-3713 9

Here the underlying offense was a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g). The elements

of a felon in possession of a firearm charge are threefold:

1) the individual was a convicted felon prior to the date

in question; 2) the individual possessed a firearm; and

3) the firearm traveled in interstate commerce. United

States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007). Therefore,

to aid and abet a felon in possession of a firearm, the

defendant must know or have reason to know that the

individual is a felon at the time of the aiding and abetting,

and, in turn, must assist the felon in possessing a firearm.

On appeal, Samuels does not challenge the sufficiency

of the evidence as it relates to Terry being a prior convicted felon who possessed a firearm that traveled in

interstate commerce. Rather, Samuels only challenges the

sufficiency of the evidence as it relates to whether he

aided and abetted Terry in possessing the FEG. Samuels

attacks Stephen’s testimony about whether he saw Samuels

hand Terry the gun at the County Line. Stephen initially

testified that he saw Samuels hand Terry the gun when

they got out of the van at the County Line, but later

clarified that he saw Samuels hand Terry what Stephen

“reflected” was a gun. Finally, on cross-examination,

Stephen responded, “No,” when asked whether he saw

whatever it was that Samuels handed Terry. Stephen’s

testimony on the exact details of the hand-off shifted, but

it was for the jury to determine which portion, if any, of

this testimony is credible and what weight that testimony

was to carry. See generally United States v. Duran, 407 F.3d

828, 845 (7th Cir. 2005). Stephen, however, stated without

question that Terry had the gun after the handoff, pointing

it at Stephen and jamming it into Stephen’s back. Furthermore, Stephen also testified that as the police were at-
10 No. 06-3713

tempting to stop Samuels’s van, Samuels handed Terry

the gun and told him to get out of the vehicle. Moreover,

Samuels stated in his post-arrest interview that the FEG

was his and that he brought it with him because he was

afraid of what might happen when he found Stephen.

Samuels was also the first to strike Stephen, thereby

commencing a violent chain of events that unfolded that

evening, which included Terry’s possession of the FEG.

By bringing the gun and escalating the encounter with

Stephen into a violent one, Terry’s possession of the

firearm was the natural consequence of Samuels’s actions

and one which Samuels, as his aider and abetter, was

presumed to have intended. Andrews, 442 F.3d at 1002.

Samuels was the aider and abetter from the start to the

finish. He recruited Terry (and Marlon and Katraelyus).

The four of them set out in Katraelyus’s van in search of

Stephen. Samuels brought with him a baseball bat and

his FEG. He admitted he brought them in case of a confrontation. When they found Stephen at the County Line,

Stephen saw Samuels hand Terry what he thought might

have been a gun. He quickly realized Terry had a gun

when Terry held it against him as they walked behind

the store. After switching vehicles and traveling to the

nursing home where Tracy worked, Samuels broke up a

fight between Terry and Stephen by hitting him with

the FEG, which Stephen said Terry had in his pocket. They

left that scene, but the police were soon in pursuit. Samuels

either threw or handed the FEG to Terry, and Terry ran off

and ditched the gun, which the police found in a nearby

flower pot. Terry possessed the FEG in the middle of and

at the end of this violent episode, and Samuels facilitated

the entire possession. Therefore, there was sufficient

evidence upon which a rational trier of fact could
No. 06-3713 11

convict Samuels beyond a reasonable doubt of aiding and

abetting Terry, a convicted felon, in possession of a firearm.

Samuels also challenges the propriety of the admission

of evidence regarding the beatings Stephen sustained,

namely testimony about the beatings, photographs of blood

in Samuels’s van and on the nursing home parking lot, and

Tracy’s 911 call. Samuels contends that the bulk of the

evidence the government presented was related to events

other than the crime for which he was charged, namely

Terry’s violent conduct and the effects of that conduct.

“Evidence of a prior bad act may be admitted [ ] when

that act is so inextricably intertwined with, or intricately

related to, charged conduct that it helps the fact finder

form a more complete picture of the criminal activity.”

United States v. Morris, 498 F.3d 634, 642 (7th Cir. 2007)

(internal citation and quotation omitted). Intricately related

evidence is evidence that either completes the story of the

crime on trial, the absence of which “would create a

chronological or conceptual void in the story of the crime,”

or is “so blended or connected that [it] incidentally

involve[s], explain[s] the circumstances surrounding, or

tend[s] to prove any element of, the charged crime.” United

States v. Gougis, 432 F.3d 735, 742 (7th Cir. 2005) (internal

quotation and citation omitted). While not subject to the

constraints of Federal Rule of Evidence 404(b), inextricably

intertwined evidence “must satisfy the balancing test

set forth in Rule 403 to be admissible.” United States v.

Griffin, 493 F.3d 856, 867 (7th Cir. 2007). Rule 403 provides

that “[a]lthough relevant, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative
12 No. 06-3713

evidence.” Fed. R. Evid. 403. We review evidence admitted over a Rule 403 objection for an abuse of discretion.

The district court’s admission of such evidence is “entitled

to special deference. Only in an extreme case are appellate

judges competent to second-guess the judgment of the

person on the spot, the trial judge.” United States v. Strong,

485 F.3d 985, 991 (7th Cir. 2007) (quoting United States

v. Gardner, 211 F.3d 1049, 1055 (7th Cir. 2000)).

We conclude that the testimony regarding the beatings

as well as the photographs and Tracy’s 911 call were

inextricably intertwined in setting forth the chronology

of the events that transpired the day Samuels brought

Terry the FEG and aided Terry in the possession of the

gun. The story of Terry’s possession and Samuels’s aiding

could not be told without the admission of evidence

regarding the beatings. This evidence, while certainly

disturbing, was essential to provide a chronology of the

events that ultimately led to Tracy calling 911 and the

police apprehending Samuels and Terry. In addition,

despite his admissions at the plea hearing and concessions on appeal, the government was tasked at trial

with proving Terry was a prior convicted felon who

possessed a firearm as well as Samuels’s aiding and

abetting. The testimony about the beatings was “so blended

or connected that [it] incidentally involve[s], explain[s] the

circumstances surrounding, or tend[s] to prove any

element of, the charged crime,” particularly Terry’s

possession of the FEG. Gougis, 432 F.3d at 743. That testimony presented eyewitness accounts of Terry’s possession of the gun. It also presented evidence of Samuels’s

facilitating Terry’s possession of the gun and his acquiescence, if not encouragement, of Terry’s use of the gun.

Our inquiry, however, does not end here, and we must

determine whether the probative value of this evidence
No. 06-3713 13

was outweighed by its prejudicial effect. As for the testimony, we conclude that it was necessary to prove Terry’s

possession of a firearm, particularly as encompassed

in Stephen’s testimony and the County Line clerk’s testimony, and the probative value of that testimony outweighed any prejudicial effect. Furthermore, while this

evidence is offensive, in its absence “there would be

a chronological and conceptual void in the events surrounding [Samuels aiding and abetting Terry’s possession

of the firearm] with the result that the other evidence

would appear detached and not in context with all of the

existing facts.” United States v. Ostrowsky, 501 F.2d 318,

322 (7th Cir. 1974). Samuels knew Terry had the gun,

he encouraged the ongoing assault with and without the

gun, and he directed Terry to dispose of the gun when the

police caught up with them. Finally, while another

judge might have reached a conclusion different from that

of the district court, the district court’s decision was not

fundamentally wrong and therefore we conclude it did

not abuse its discretion. See Hall v. Norfolk S. Railway Co.,

469 F.3d 590, 594 (7th Cir. 2006) (citation omitted).

Samuels points to the holding in Ostrowsky in support of

his claim that too much of his trial was spent on the

beatings. In Ostrowsky, we held that the evidence that a

car owner had been murdered was admissible to establish

the deceased’s vehicle had been stolen and afterward

had traveled interstate. However, evidence of the defendant’s reasons for the murder as well as details regarding

the disposal of the victim’s body along with the tires of

the car used to dispose the body were not probative of any

element of the charged crime. Those additional details

could only serve to inflame the jury and prejudice the

defendant. Ostrowsky, 501 F.2d at 323. Unlike the details
14 No. 06-3713

of the murder in Ostrowsky, in this case the beatings were

not a singular event in time or only related to one element

of the crime. Rather, they were related, ongoing occurrences tightly woven into the chronology and circumstances of acts probative of the felon in possession elements as well as the aiding and abetting element of

Samuels’s charged crime. To that extent, we conclude that

the district court did not abuse its discretion in admitting

testimony about beatings Stephen suffered because they

went to the proof of Terry’s possession of the gun from the

time he received it to the time he got rid of it.

The admission of Tracy’s 911 call and photographs of

the blood in the nursing home parking lot, however, was

unnecessary to prove either the felon in possession prongs

or the aiding and abetting prong of Samuels’s charge. The

prejudicial value of the admission of that evidence outweighed its probative effect. However, we conclude that

the admission of this evidence was a harmless addition.

The other evidence presented at trial overwhelmingly

demonstrated that Terry was a felon who possessed a

firearm and that Samuels directly handed Terry the FEG

and created a violent situation which facilitated and

provided a rationale for the possession. He knowingly

brought a gun and a convicted felon into a tense situation, which, by his own making, became violent, thus

leading to the natural consequence of a felon’s possession

of a firearm. Andrews, 442 F.3d at 1002. In addition, the

district court gave the jury a the limiting instruction in

accord with the Seventh Circuit pattern instructions

which directed the jury to determine the defendant’s

guilt of the crime charged, despite having heard evidence

of other acts. In conjunction with the other evidence

presented at trial, we conclude that “[t]his limiting in-
No. 06-3713 15

struction mitigated whatever unfair prejudice may have

existed.” United States v. Lane, 323 F.3d 568, 582 (7th Cir.

2003).

Samuels asserts that even if this court does not vacate

his conviction, his case should be remanded for resentencing. Samuels argues that the district court improperly

calculated his sentencing range under the United States

Sentencing Guidelines by applying the aggravated assault

cross-reference and a six-level increase in his offense

level for the injury sustained by Stephen being greater

than serious bodily injury, but less than permanent

bodily injury. Samuels also contests the district court’s

denial of a reduction in his offense level for acceptance of

responsibility. Finally, Samuels contends that his personal

characteristics warrant a sentence reduction. We will

address each of these claims in turn.

In sentencing, a district court must first calculate the

appropriate Guideline range by resolving disputed

factual issues, determining relevant conduct by a preponderance of the evidence, and applying appropriate sentencing enhancements. United States v. Robinson, 435 F.3d

699, 700-01 (7th Cir. 2006). Then, considering the factors

set forth in 18 U.S.C. § 3553, the district court must decide

whether to impose a sentence within or outside of the

Guideline range. Id. A sentence within the Guideline

range, for purposes of appellate review, is presumptively

reasonable. United States v. Sachsenmaier, 491 F.3d 680,

685 (7th Cir. 2007) (citing Rita v. United States, 127 S.Ct.

2456 (2007)). We review a district court’s application of

the Guidelines de novo and findings of fact for clear

error. A district court’s factual findings are entitled to

deference “unless we have a definite and firm conviction

that a mistake has been made.” United States v. Wilson,
16 No. 06-3713

502 F.3d 718, 721 (7th Cir. 2007) (quoting United States

v. Fudge, 325 F.3d 910, 920 (7th Cir. 2003)).

Pursuant to U.S.S.G. § 2X2.1, the offense level for aiding

and abetting is the same as the underlying offense. Thus,

we look to U.S.S.G. § 2K2.1, the felon in possession of a

firearm section, which provides a base offense level of

twelve for a felon in possession of a firearm. Section

2K2.1(c), also provides a cross-reference

[i]f the defendant used or possessed any firearm or

ammunition in connection with the commission or

attempted commission of another offense, or possessed

or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in

connection with another offense, apply . . . § 2X1.1

(Attempt, Solicitation, or Conspiracy) in respect to

that other offense, if the resulting offense level is

greater than that determined above . . . .

U.S.S.G. § 2K2.1(c)(1)(A).

In this case the district court applied the cross-reference

for aggravated assault, which is a “felonious assault that

involved (1) a dangerous weapon with the intent to

cause bodily injury with that weapon; (2) serious bodily

injury; or (3) intent to commit another felony.” U.S.S.G.

§ 2A2.2, cmt., n.1. The base offense level for aggravated

assault is fourteen. The district court, in turn, made

additional findings of fact and applied specific offense

characteristics, namely the use of a dangerous weapon,

victim injury, a crime motivated by a thing of value, and

physical restraint of the victim to increase Samuels’s

base offense level from fourteen to twenty-eight.

Samuels argues that the application of the aggravated

assault cross-reference is in error because he was not
No. 06-3713 17

charged and convicted of aggravated assault and the

evidence does not establish that he possessed the requisite

intent for the cross-reference to apply. We conclude that

the aggravated assault cross-reference was appropriate.

Samuels aided and abetted Terry in possessing a firearm “in connection with the commission . . . of another

offense,” namely the assault of Stephen. There was evidence of the requisite intent. Samuels stated during his

post-arrest interview that he brought along his FEG in

anticipation of a fight while trying to regain the Glock from

Stephen. Stephen, in turn, testified that he thought he

saw Samuels hand Terry what appeared to be a gun,

Samuels directed Terry to hold Stephen, and Samuels

was the first to strike Stephen in the County Line parking

lot, thereby escalating the encounter which spawned a

violent chain of events. Moreover, there was trial testimony

that both Samuels and Terry struck Stephen with the gun.

Thus, based on the evidence presented at trial, the district

court did not err in applying the aggravated assault crossreference.

Next Samuels challenges the district court’s assessment

of a six-level increase for injury sustained by Stephen. The

Guidelines provide for a five-level increase for serious

bodily injury and a seven-level increase for permanent

bodily injury sustained by the victim of the crime. U.S.S.G.

§ 2A2.2(3). In this case, the district court imposed a sixlevel increase, based on its finding that the Stephen’s

injuries were between serious and permanent.

A serious bodily injury involves extreme physical pain,

protracted impairment of a bodily member, organ, or

mental function, and requires medical intervention, such

as hospitalization. U.S.S.G. § 1B1.1, cmt n.1(L). A permanent bodily injury, on the other hand, involves “substan-
18 No. 06-3713

tial risk of death; loss or substantial impairment of the

function of a bodily member, organ, or mental faculty

that is likely to be permanent, or an obvious disfigurement that is likely to be permanent.” U.S.S.G. § 1B1.1,

cmt n.1(J). In addition to his trial testimony, Stephen

testified at the sentencing hearing that he was in the

hospital for a week, suffered headaches, had pain from a

bite mark he sustained during the fighting, and had

occasional blurred vision in his left eye. Stephen also

stated that he continued with counseling as a result of the

trauma of the attack. Stephen’s mother also testified at

sentencing. She stated that she had stayed with her son

for a week during his hospital stay following the altercation with his cousins and that he suffered kidney damage and a broken bone behind his eye upon which the

doctors did not operate because of the proximity to Stephen’s eye. Had the government submitted medical reports for the district court’s consideration at sentencing,

the proof for review might have been strengthened.

However, as it is, based on the testimonial evidence

presented at trial and sentencing of Stephen’s blood loss,

loss of consciousness on the date of the attacks, oneweek hospital stay, renal problems, recurring blurred

vision, headaches, and the continued need for counseling

following the attacks, we conclude that the district court

did not err in imposing a six-level increase in Samuels’s

offense level. The number and degree of the injuries

provided a sufficient basis for the district court’s determination that Stephen’s injuries were greater than the

extreme physical pain or protracted bodily impairment

required for serious bodily injury, but less than the substantial impairment required for a permanent bodily

injury. Compare United States v. Desormeaux, 4 F.3d 628, 630

(8th Cir. 1993) (holding that the serious bodily injury
No. 06-3713 19

enhancement applied where the victim had been stabbed

in the kidney, lost blood, and was hospitalized for four

days); United States v. Moore, 997 F.2d 30, 37 (5th Cir. 1993)

(affirming the serious bodily injury enhancement where

the victim was shot in the leg, treated in the emergency

room without a hospital stay, and suffered occasional leg

pain), with United States v. Webster, 500 F.3d 606, 607-08 (7th

Cir. 2007) (affirming the permanent bodily injury enhancement where the victim suffered facial scarring); United

States v. Miner, 345 F.3d 1004, 1006-07 (8th Cir. 2003)

(affirming the permanent bodily injury enhancement

where the victim suffered permanent scarring and the

presence of a bullet inside his body).

Samuels also challenges the district court’s denial of a

two-level reduction in his offense level for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a). Samuels

asserts that he is entitled to the acceptance of responsibility reduction because he attempted to enter a plea,

including an Alford plea. Samuels further notes that he

cooperated with Detective Becker after his arrest.

Because the district court’s denial of a reduction in the

offense level for acceptance of responsibility is a factual

determination, we review it for clear error. United States

v. Dong Jin Chen, 497 F.3d 718, 720 (7th Cir. 2007). The

district court concluded that an acceptance of responsibility

reduction was not warranted because Samuels put the

government to its burden of proving its case before a jury

and because Samuels did not accept responsibility for his

actions. We find that the district court did not err in

denying Samuels a reduction for acceptance of responsibility. Not only did Samuels proceed to trial, but he put

the government to the burden of proving elements to

which he had agreed at his attempted plea, namely
20 No. 06-3713

those relating to Terry’s felon-in- possession charge.

Moreover, Samuels’s invocation of United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992), does not advance

his argument because unlike Rodriquez who was later

acquitted of a gun charge that he refused to admit at

his plea hearing, Samuels was convicted of aiding and

abetting his brother in possession of a firearm, thereby

undercutting his claim for acceptance of responsibility for

those elements to which he was prepared to plead guilty.

Finally, Samuels argues that his personal circumstances,

namely his status as a husband and caregiver to his

children, others’ children, and his parents entitle him to a

reduction in his Guideline sentence. We conclude that

Samuels’s circumstances are not so extraordinary as to

rise to a level of establishing that the Guideline sentence

“would have an effect on the family or family members

beyond the disruption to family and parental relationships that would be present in the usual case.” United States

v. Canoy, 38 F.3d 893, 907 (7th Cir. 1994). Accordingly,

the district court did not err in declining to depart from

the properly computed Guideline range in imposing

Samuels’s sentence. Samuels did not challenge the reasonableness of his sentence, but rather only the Guideline

calculation. Accordingly, because the district court properly calculated Samuels’s Guideline range, we affirm his

sentence.

III.

Viewing the evidence in the light most favorable to the

government, we conclude that there was sufficient evidence upon which a rational jury could convict Samuels

of aiding and abetting a felon in possession of a firearm.
No. 06-3713 21

The probative value of the testimony regarding Stephen’s

beatings outweighed its prejudicial effect, and any prejudice resulting from the admission of the 911 call and

photographs was harmless due to the other evidence and

limiting instruction the jury received. As for Samuels’s

sentence, the district court did not err in applying the

aggravated assault cross-reference, applying six points

for Stephen’s injuries being between serious and permanent, and denying a reduction for acceptance of responsibility. Finally, the district court did not err in declining

to reduce Samuels’s sentence based on his family circumstances, which were not extraordinary. Accordingly,

we AFFIRM Samuels’s conviction and sentence.

USCA-02-C-0072—4-10-08