United States Court of Appeals

For the First Circuit

No. 99-1806

UNITED STATES,

Appellee,

v.

CARLOS JOSE ZARAGOZA-FERNANDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

 Selya, Stahl and Lynch,

Circuit Judges.

Edgardo Rodriguez-Quilichini, Assistant Federal Public

Defender, and Joseph C. Laws, Jr., Federal Public Defender, on

brief for appellant.

Nelson Perez-Sosa, Assistant United States Attorney, Jorge

E. Vega-Pacheco, Assistant United States Attorney, and Guillermo

Gil, United States Attorney, on brief for appellee.

June 29, 2000
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STAHL, Circuit Judge. On January 12, 1999, defendantappellant Carlos J. Zaragoza-Fernandez pleaded guilty to a twocount indictment charging him with assault within the maritime

and territorial jurisdiction of the United States, see 18 U.S.C.

§§ 7, 113 (Count I); and assaulting, resisting, or impeding a

United States military police officer, see 18 U.S.C. §§ 7,

111(a), 1114 (Count II). This appeal challenges the sentence

the district court imposed with respect to Count II. We affirm.

I.

On November 1, 1998, defendant appeared at the

community club of the U.S. Army Garrison, Fort Buchanan, Puerto

Rico, where his ex-wife, Rosaura Rivera, was dancing with

another person. Defendant appears to have had a history of

stalking Rivera, as she had obtained a number of restraining

orders against him. In any event, defendant approached Rivera

after she left the dance floor, spoke with her briefly about

their children, and then punched her in the face.

Defendant immediately exited the club and fled in his

car. The military police were notified and given a description

of defendant and the car. A military police vehicle gave chase.

Meanwhile, military policeman Brian W. Roate, who was assigned

to the front gate area of the base, was radioed and advised of
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the assault and attempted escape. The outbound lane of Fort

Buchanan then was blocked by a military police vehicle. As

defendant approached the gate in the outbound lane, he veered to

the right around the roadblock and drove onto the adjacent

grassy median. At this point, Roate stepped in front of the

passenger side of the car, waved his baton, and yelled for

defendant to stop. Defendant did not stop; instead, he drove

directly at Roate. Roate attempted to get out of the way, but

received a glancing blow on the right knee as defendant drove

past him. Roate then chambered a round in his 9mm sidearm, but

did not shoot at defendant because another officer was in his

line of fire. Roate was not injured in the collision.

Defendant successfully escaped the confines of the base but was

apprehended later.

In sentencing defendant on Count II – the Count

pertaining to the incident with Officer Roate – the district

court set defendant's base offense level at fifteen because it

concluded that the assault on the military police officer was

"aggravated" within the meaning of U.S.S.G. § 2A2.2. In doing

so, the court determined that defendant's assault on Roate

"involved . . . a dangerous weapon with intent to do bodily

harm (i.e., not merely to frighten)." Id. cmt., application

note 1. The court then enhanced the offense level by three
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because defendant brandished or threatened to use a dangerous

weapon (i.e., the car) in connection with the aggravated

assault, see id. § 2A2.2(b)(2); and by three additional levels

because the aggravated assault created the risk of serious

bodily injury and because defendant had reasonable cause to know

that the victim of the aggravated assault was a law enforcement

officer, see id. § 3A1.2(b). Finally, the court adjusted the

offense level downward by three to account for defendant's

acceptance of responsibility. See id. § 3E1.1. This yielded a

total offense level of eighteen and, because defendant was in

Criminal History Category II, a guideline sentencing range of

30-37 months. The court then sentenced defendant to 37 months

on Count II.

II.

On appeal, defendant presses two arguments. First, he

contends that the district court clearly erred in applying the

aggravated assault guideline, U.S.S.G. § 2A2.2, instead of a

milder guideline applicable to one who merely obstructs or

impedes a government officer, id. § 2A2.4, because there was no

showing that defendant intended to cause Roate serious bodily

injury. See United States v. Garcia, 34 F.3d 6, 10-11 (1st Cir.

1994) (reviewing deferentially a fact-based determination to

apply U.S.S.G. § 2A2.2 on grounds that the defendant intended to
1Because we must sustain the official victim enhancement

under U.S.S.G. § 3A1.2 if the court did not clearly err in

finding that defendant had reasonable cause to know that Roate

was a law enforcement officer and assaulted Roate in a manner

creating a substantial risk of serious bodily injury, see id. §

3A1.2(b), and because we think it obvious that the same evidence

supporting the court's decision to apply U.S.S.G. § 2A2.2 also

supports such a finding, see infra, we do not separately address

whether there was sufficient evidence to support a conclusion

that the assault on Roate was motivated by Roate's status as a

law enforcement officer, see U.S.S.G. § 3A1.2(a).

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cause the victim serious bodily injury). Second, he asserts

that the court clearly erred in applying the official victim

enhancement in U.S.S.G. § 3A1.2 because there was insufficient

evidence that the assault was motivated by Roate's status as a

law enforcement officer or that the assault created a

substantial risk of serious bodily injury.1 See Garcia, 34 F.3d

at 13 (reviewing deferentially a fact-based decision to enhance

under U.S.S.G. § 3A1.2). Two subsidiary factual arguments drive

these contentions: (1) the evidence showed "only that defendant

intended to escape or, at worst, to frighten" Roate (Defendant's

Brief at 12); and (2) defendant's Attention Deficit

Hyperactivity Disorder (ADHD) prevented defendant from forming

the requisite intent to injure Roate.

We reject the two factual arguments on which

defendant's appeal necessarily depends. Taking the latter

argument first, we think it suffices simply to say that the

record as to defendant's psychological profile in no way compels
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the conclusion that defendant's ADHD prevented him from forming

the mens rea necessary to commit an aggravated assault at the

relevant point in time. As to the former argument, we think it

conclusive that, in Garcia, as here, the sentencing judge

applied U.S.S.G. § 2A2.2 to circumstances in which the

defendant, in order to facilitate a vehicular escape, "merely"

drove his car at the official victims in order to facilitate an

escape. See id. at 9. We held that the application of U.S.S.G.

§ 2A2.2 was within the court's authority in such a circumstance,

even if the court believed that Garcia did not actually want to

strike and injure the officers, but simply was prepared to do so

if need be. See id. at 11 (reproducing a quotation from the

judge which tends to suggest that this was the court's belief

and then affirming the finding); see also United States v.

Valdez-Torres, 108 F.3d 385, 388 (D.C. Cir. 1997) (affirming

application of U.S.S.G. § 2A2.2 where defendant accelerated his

car toward a law enforcement officer and ignored a shouted

warning that he stop, and rejecting the argument that this

evidence only showed an intent to escape or, at most, frighten);

cf. United States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997)

(affirming application of U.S.S.G. § 2A2.2 where the defendant

swerved his car into a pursuing law enforcement officer's car,
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and rejecting argument that such evidence was insufficient to

show an intent to injure).

Here, there was abundant evidence that defendant saw

Roate in front of his car, had reason to appreciate that he was

a law enforcement officer, continued to drive at him, and was

prepared to strike him with his car if necessary to effectuate

his escape. Indeed, the evidence suggested that defendant

actually struck Roate with his car, and that Roate might well

have sustained serious injuries had he not managed to get

everything but his right knee out of the way. Under the

circumstances, and in light of precedent, the district court did

not clearly err in concluding that defendant committed an

aggravated assault upon Roate. And given these same facts, the

court did not clearly err in finding that defendant assaulted

Roate with reasonable cause to believe that Roate was a law

enforcement officer and in a manner creating a substantial risk

of serious bodily injury. Defendant's sentence on Count II is

thus beyond reproach.

Affirmed.