The Honorable Richard H. Battey, Chief Judge, United States District Court for 1

the District of South Dakota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-4268

_____________

United States of America, *

*

 Plaintiff - Appellee, * 

 * Appeal from the United States

v. * District Court for the

* District of South Dakota.

David Osborne, * 

*

 Defendant - Appellant. *

_____________

 Submitted: May 12, 1998 

 Filed: January 8, 1999

_____________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

David Osborne pled guilty to one count of vehicular battery in violation of 18

U.S.C. §§ 7, 13, and 1152, which, in conjunction, assimilate state criminal law for

offenses by non-Indians on Indian lands. See 18 U.S.C. §§ 7, 13, and 1152 (1994).

Because the United States Sentencing Guidelines have no expressly promulgated

guideline for vehicular battery, the district court sentenced Osborne under the 1
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aggravated assault guideline. Osborne appeals his sentence, arguing that the court

should have instead sentenced him under the guideline for involuntary manslaughter.

We affirm.

David Osborne is a non-Indian who lived within the boundaries of the Pine

Ridge Indian Reservation in South Dakota. On October 25, 1996, Osborne and some

friends were drinking at a Pine Ridge residence when an acquaintance asked Osborne

to drive to Gordon, Nebraska, and retrieve a load of cinder blocks. Osborne drove to

Gordon in his fiancee's Chevy Blazer, along with three passengers: Marlita Red Cloud,

Wanbli Red Cloud, and Liberty Joe Morgan. On the way to Gordon, the foursome

stopped in White Clay, Nebraska, where they picked up a trailer and a twelve pack of

beer. The foursome continued drinking during the trip. After loading the cinder

blocks onto the trailer in Gordon, Osborne stopped at a liquor store and purchased

another twelve pack of beer and an eight pack of small Windsor whiskey bottles. 

On the trip back to Pine Ridge, Myron Shaw and Golden Buckman followed the

Blazer in a separate vehicle. At one point, a few cinder blocks fell off the trailer onto

the highway. When the two vehicles stopped to reload the blocks, Shaw tried to

convince Osborne to let someone else drive because Osborne had been crossing both

the center and fog lines of the road, but Osborne refused. Shaw pulled his vehicle in

front of the Blazer and set his cruise control at sixty-five miles per hour. Shaw noticed

the Blazer approaching at a high rate of speed. Before hitting Shaw's vehicle,

however, the Blazer turned right and rolled several times. Osborne and all three

passengers were thrown from the Blazer. 

Morgan sustained the most serious injuries, including a head injury and a broken

hip, and remained comatose for several months. Marlita Red Cloud suffered a

fractured pelvis, a fractured rib, and extensive bruising. Wanbli Red Cloud suffered

injuries as well, but they were not addressed in the investigative reports. Osborne
South Dakota Codified Laws § 22-16-42 (Lexis 1998) states, in pertinent part: 2

Any person who, while under the influence of an alcoholic

beverage, any controlled drug or substance, or a combination thereof,

without design to effect serious bodily injury, operates or drives a motor

vehicle of any kind in a negligent manner and thereby causes the serious

bodily injury of another person . . . is guilty of vehicular battery. 

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suffered injuries and was taken to a nearby hospital where blood tests revealed a blood

alcohol level of 0.27 and the presence of marijuana in his system.

Osborne pled guilty to a violation of 18 U.S.C. §§ 7, 13, and 1152, predicated

upon a violation of South Dakota Codified Laws § 22-16-42. Under 18 U.S.C. § 13, 2

Osborne's state law crime becomes a federal offense for which he is sentenced under

the federal guidelines. See United States Sentencing Commission, Guidelines Manual,

§ 2X5.1 (Nov. 1997). 

Because there is no expressly promulgated guideline for the offense of vehicular

battery, the district court, in accordance with USSG § 2X5.1, looked for the most

analogous specific offense guideline. The court determined that the involuntary

manslaughter guideline and the aggravated assault guideline were almost equally

analogous, except that death did not occur in this case. The court chose the aggravated

assault guideline as the most analogous guideline. The court assigned Osborne a base

offense level of fifteen, increased by six levels for permanent or life-threatening injury

to a victim, and decreased by two levels for acceptance of responsibility for a total

offense level of nineteen. Combining the offense level with a Category II criminal

history, the district court determined Osborne's guideline range to be thirty-three to

forty-one months and sentenced Osborne to thirty-six months imprisonment, three

years probation, and $10,570 restitution.
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Osborne first argues that the crime of aggravated assault is not sufficiently

analogous to the crime of vehicular battery because vehicular battery requires a less

culpable state of mind than aggravated assault. Secondly, Osborne argues that

involuntary manslaughter, not aggravated assault, is the most analogous guideline to

his crime. Finally, Osborne contends that the district court's application of the

aggravated assault guideline was inconsistent with the court's remarks during the

sentencing hearing and with the court's use of the involuntary manslaughter guideline

in similar cases.

I.

 

Guideline 2X5.1 refers to the situation where there is no expressly promulgated

guideline, and mandates that the most analogous offense guideline be applied. If there

is not a sufficiently analogous guideline, then 18 U.S.C. §3553(b) shall control. See

USSG § 2X5.1. 

Because the district court concluded that aggravated assault was the most

analogous guideline to vehicular battery in this case, but concluded that involuntary

manslaughter was the most analogous guideline to vehicular battery in the companion

case we decide today, United States v. Allard, No. 97-4006, we feel it necessary to

carefully analyze and articulate the procedures required by USSG § 2X5.1 and our

standard of review. 

This is particularly essential because, in addition to the two cases before us

today, other cases that deal with vehicular battery as an assimilated crime have come

before several of the district courts in our circuit.
18 U.S.C. § 3742(e) states: 3

Upon review of the record, the court of appeals shall determine whether

the sentence . . . (2) was imposed as a result of an incorrect application

of the sentencing guidelines . . . [the court of appeals] shall accept the

findings of fact of the district court unless they are clearly erroneous and

shall give due deference to the district court's application of the

guidelines to the facts.

18 U.S.C. § 3553(b) directs that when there is no applicable guideline, the court 4

is to have due regard for general sentencing policies (such as promoting respect for the

law, providing adequate deterrence, and protecting the public from further crime),

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Congress provided the standards of review for guideline appeals in 18 U.S.C.

§ 3742(e) (1994). However, the precise application of the statutorily mandated

3

standard of review to USSG § 2X5.1 is a question of first impression in this circuit and

a disputed issue among other federal circuits. 

The background note to USSG § 2X5.1 states specifically, "The court is required

to determine if there is a sufficiently analogous offense guideline and, if so, to apply

the guideline that is most analogous. Where there is no sufficiently analogous

guideline, the provisions of 18 U.S.C. § 3553(b) control." USSG 2X5.1, comment.

(backg'd). This portion of the application note mandates a two-step analysis, and

makes abundantly clear that there is a difference between a situation where the district

judge is choosing the most analogous guideline among sufficiently analogous

guidelines, and a situation where there is no sufficiently analogous guideline. In

construing the guideline and the application note, we must give meaning to each of

these terms. 

The first step of the USSG § 2X5.1 analysis is to determine whether there are

any guidelines which are sufficiently analogous to the defendant's crime; if there are

no sufficiently analogous guidelines, then the defendant is to be sentenced using the

general provisions of 18 U.S.C. § 3553(b) (1994). See United States v. Cefalu, 85 4
guidelines applicable to similar offenses and offenders, and the applicable policy

statements of the Sentencing Commission. See 18 U.S.C. § 3553(b) (1994)

(incorporating 18 U.S.C. § 3553(a)(2) by reference). 

See United States v. Couch, 65 F.3d 542, 544 (6th Cir. 1995); United States v. 5

Smertneck, 954 F.2d 264, 265 (5th Cir.), cert. denied, 506 U.S. 833 (1992); United

States v. Norman, 951 F.2d 1182, 1184 (10th Cir. 1991); cf. United States v. Prevatte,

16 F.3d 767, 779-80 (7th Cir. 1994) (choosing most analogous guideline pursuant to

USSG § 2K1.4); United States v. Mendoza-Fernandez, 4 F.3d 815, 817 (9th Cir. 1993)

(choosing more "apt" guideline pursuant to USSG § 2F1.1).

See Cefalu, 85 F.3d at 968 n.6; United States v. Mariano, 983 F.2d 1150, 1158 6

(1st Cir. 1993).

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F.3d 964, 966-69 (2d Cir. 1996). Scant precedent exists regarding the appropriate

standard of review on the district court’s determination of whether a guideline is

sufficiently analogous to the defendant's crime. We hold that the district court’s

determination as to whether there is a sufficiently analogous guideline to the

defendant's crime is reviewed de novo. See United States v. Gabay, 923 F.2d 1536,

1545 (11th Cir. 1991). First, the issue most generally will involve comparing the

elements of federal offenses to the elements of the crime of conviction. Secondly, a

determination that there is not a sufficiently analogous guideline will require the district

court to impose sentence under 18 U.S.C. § 3553(b), which we are convinced is a legal

issue. 

The second step of the USSG § 2X5.1 analysis requires the district court to

choose the most analogous guideline from the sufficiently analogous offense guidelines,

if indeed there are more than one. Conflicting precedent exists regarding the

appropriate standard of review of the district court’s choice of the most analogous

guideline. The circuits differ on whether the choice of the most analogous guideline

is a question of law to be reviewed de novo or is a question of applying the guidelines 5

to the facts to be reviewed with due deference. We are persuaded that the district 6
Mariano recognizes the far broader and essentially legal question of whether 7

a particular offense guideline will always be most analogous to the crime of conviction

and indicates that this question need not be answered. 983 F.2d at 1158. We agree.

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court’s choice of the most analogous guideline is to be reviewed with due deference for

several reasons. 

First, in choosing the most analogous guideline, the district court must take into

account all the circumstances of the case and make factual findings to support its choice.

Our own circuit has recognized this concept. See United States v. Clown, 925 F.2d 270,

271-72 (8th Cir. 1991); see also, United States v. Fisher, 137 F.3d 1158, 1167 (9th Cir.

1998). After the facts are found, the district court must decide which guideline is most

analogous based upon those facts. We are persuaded that this evaluation in choosing the

most analogous guideline is more factual in nature than legal. Absent an indication that 7

the district court misunderstood the legal standards, that is, it misunderstood the elements

of the state offense or the analogous federal offenses, we will defer to its judgment as to

how the facts fit into those elements. See Mariano, 983 F.2d at 1158.

Further, we believe this is what Congress intended. Choosing the most analogous

guideline involves more than just interpreting the guidelines, in the sense of declaring

the meaning of guideline terms. Instead, it involves evaluating which of two or more

legal standards is most akin to the facts. Surely this process is an "application of the

guidelines to the facts." Congress has explicitly mandated that we give due deference

to the district court's application of the guidelines to the facts, see 18 U.S.C. § 3742(e),

and holding otherwise is ignoring Congress' command. See Cefalu, 85 F.3d at 967 n.6;

cf. Koon v. United States, 518 U.S. 81, 97 (1996) (stating that Congress did not intend

to vest in appellate courts wide-ranging authority over district court
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sentencing decisions and that deference due depends on the nature of the question

presented). 

The final reason we give due deference to the choice of the most analogous

guideline is linked to our decision to apply de novo review on the question of whether

a guideline is sufficiently analogous. The divergent standards of review strike the

appropriate balance with respect to the Commission’s objective of avoiding

"unwarranted sentence disparities" between similarly situated defendants, while at the

same time “maintaining sufficient flexibility to permit individualized sentences when

warranted.” 28 U.S.C. § 991(b)(1)(B) (1994). With appellate courts reviewing the

sufficiency question de novo, defendants will not receive sentences based on wholly

inapplicable guidelines. However, USSG § 2X5.1 cases are inherently out of the

ordinary; the Commission does not offer a predetermined guideline or offense level. By

giving due deference to the district court's choice of the most analogous guideline,

district courts will have more freedom to fashion the appropriate sentence in these

unconventional situations on a case by case basis.

II.

 

Having determined the appropriate standard of review, we turn to the merits of

Osborne's claims. Osborne bases his argument that the aggravated assault guideline is

neither sufficiently analogous to, nor the most analogous guideline to vehicular battery

on an apparent difference between the state of mind required for aggravated assault

under federal law and the state of mind required for vehicular battery under South

Dakota law. There are a number of federal offenses which are treated as aggravated

assault under the Sentencing Guidelines. See USSG § 2A2.2 comment. (listing 18

U.S.C. §§ 111, 112, 113(a)(2), (3), (6), 114, 115(a), (b)(1), 351(e), 1751(e) as statutory

provisions to which the aggravated assault guideline applies). The Sentencing

Guidelines define aggravated assault to include a felonious assault involving "(b) serious

bodily injury." USSG § 2A2.2 comment. (n.1). The most relevant form of
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aggravated assault to our discussion is assault resulting in a serious bodily injury, for

which the statute provides a ten year maximum sentence. See 18 U.S.C. § 113(a)(6)

(1994). 

Because of assault's extensive common law roots, this court has had little occasion

to address the elements of assault or of assault resulting in a serious bodily injury under

federal law. Nevertheless, we have repeatedly stated that assault resulting in a serious

bodily injury requires only a general intent to commit the acts of assault, and not a

specific intent to do bodily harm. See United States v. Felix, 996 F.2d 203, 207 (8th Cir.

1993); United States v. Big Crow, 728 F.2d 974, 975 n.1 (8th Cir. 1984); United States

v. Knife, 592 F.2d 472, 482 (8th Cir. 1979). Further, in affirming a sentence for assault

on an IRS agent, we held in United States v. Wollenzien, 972 F.2d 890 (8th Cir. 1992),

that enhancing the defendant's sentence based upon physical contact was not double

counting with assault charged under 18 U.S.C. § 111. We reasoned that assault

prohibited under 18 U.S.C. § 111 may be violated by minimal physical contact or even

without the presence of any physical contact. Id. at 891-92. Wollenzien at least points

to an acceptance of common law principles such that attempts to commit battery and the

act of putting another person in reasonable apprehension of bodily harm both fall within

the meaning of assault. See United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir.

1982), cert. denied, 460 U.S. 1016 (1983); United States v. Dupree, 544 F.2d 1050,

1051 (9th Cir. 1976).

Osborne nevertheless attempts to contrast the intent requirement for aggravated

assault with the mental state requirement for vehicular battery by arguing that vehicular

battery under South Dakota law requires only criminal negligence. Osborne gives the

South Dakota statute too narrow a reading.

South Dakota's vehicular battery statute is worded almost identically to its

vehicular homicide statute, with the exception that the vehicular homicide section refers

to death rather than serious bodily injury. See S.D. Codified Laws § 22-16-41 (Lexis
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1998). Both statutes prohibit driving while under the influence of drugs or alcohol and

negligently causing either death or serious bodily injury. The Supreme Court of South

Dakota held in State v. Big Head, 363 N.W.2d 556 (S.D. 1985), that the vehicular

homicide statute was a general intent statute and, quoting earlier authority, stated, "[I]n

a general intent crime, the prohibited result need only be reasonably expected to follow

from the offender's voluntary act, irrespective of any subjective desire to accomplish

such result." Id. at 561 (citations omitted). Thus, in both South Dakota statutes the

prohibited results, whether death or serious bodily injury, need only be reasonably

expected to follow from the offender's voluntary act, regardless of any subjective desire

to cause injury or death. The voluntary act is driving under the influence.

We are unpersuaded by Osborne's argument contrasting the intent requirements

of aggravated assault and vehicular battery. Further, we observe that both vehicular

battery and the aggravated assault under 18 U.S.C. § 113(a)(6) contemplate serious

bodily injury. See S.D. Codified Laws § 22-16-42; 18 U.S.C. §113(a)(6). We agree

with the district court that the aggravated assault guideline is sufficiently analogous to

vehicular battery.

 

We now turn to Osborne's argument that the aggravated assault guideline is not

the most analogous guideline to vehicular battery. In determining the most analogous

guideline under USSG § 2X5.1, a district court is to look not merely to the definition of

the offenses, but also to the actual conduct of the individual defendant. See Fisher, 137

F.3d at 1167; Clown, 925 F.2d at 272. We thus turn to the circumstances surrounding

Osborne's offense. First, the amount of alcohol involved in this case was considerable,

reflected not only in the quantities of alcoholic beverages purchased during the trip but

also in Osborne's high blood alcohol level. Osborne's blood test results suggest that he

was also under the influence of marijuana. Even after being warned that he was weaving

out of his lane and that he should let someone else drive, Osborne continued to drive in

his highly intoxicated state. Finally, despite pulling a
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trailer filled with loose cinder blocks, Osborne drove the Blazer well in excess of sixtyfive miles per hour, almost colliding with the back of Shaw's vehicle. 

We conclude that Osborne's conduct fits well within the aggravated assault

guideline's purview, and we find support for this conclusion in United States v. Loera,

923 F.2d 725 (9th Cir.), cert. denied, 502 U.S. 854 (1991). In Loera, the Ninth Circuit

concluded that there was sufficient evidence to convict the defendant of assault resulting

in a serious bodily injury where the defendant swerved across the center line of the road,

collided with an oncoming car, and two hours later tested at a blood alcohol level of

0.26. Rejecting Loera's argument that the government did not establish that his conduct

was "willful," the Ninth Circuit stated, "The law will presume that a person intended the

natural and probable consequences of his voluntary acts. The willful conduct in this case

was the operation of a motor vehicle while in a state of voluntary intoxication." Id. at

728 (internal citations and quotations omitted). Osborne's conduct was similar to the

conduct of the defendant in Loera. Osborne chose to drive a motor vehicle in a highly

intoxicated state. His inability to safely operate the vehicle and the consequential

accident and injuries followed naturally from his decision. Thus, Osborne had the

general intent comparable to that required for assault resulting in a serious bodily injury

under federal law, and he caused such bodily injury.

As for Osborne's argument that involuntary manslaughter is more analogous to

vehicular battery, we first observe that death did not result in this case. More importantly,

we give due deference to the district court's choice of the most analogous guideline and

cannot say the aggravated assault guideline was inappropriately applied in this case.

Osborne final contention is that the district court's application of the aggravated

assault guideline to his vehicular battery was inconsistent with the district court's remarks

concerning the use of the involuntary manslaughter guideline and with the
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district court's use of the involuntary manslaughter guideline in other vehicular battery

cases. These contentions are without merit. The district court's remarks were made in

response to Osborne's argument that the court should apply the base offense level for

involuntary manslaughter involving criminal negligence rather than recklessness. The

court's remarks thus had little relevance to its decision whether the aggravated assault

guideline or the involuntary manslaughter guideline was most analogous to Osborne's

offense. Further, the district court's application of the involuntary manslaughter

guideline in other vehicular battery cases is explained by the fact that courts look to the

relevant conduct of the defendant and not merely to the definition of the crimes. It may

be that fitting Osborne's offense into the guidelines is similar to fitting a square peg into

one of two round holes, but we conclude that the district court did not err and affirm the

sentence imposed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT