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 1 8 U.S. C. §§ 7, 13, and 1152, which, in conjunction, assimilate state criminal law fo r offenses by non-Indians on Indian lands. See 18 U.S.C. §§ 7, 13, and 1152 (1994)

. Becaus e the United States Sentencing Guidelines have no expressly promulgate d guideline for vehicular battery, the district court sentenced Osborne under the 1-2-

aggravatedassault guideline. Osborne appeals his sentence, arguing that the cour t shouldhave instead sentenced him under the guideline for involuntary manslaughter. We affirm.

Dav id Osborne is a non-Indian who lived within the boundaries of the Pin e Ridge Indian Reservati on in South Dakota. On October 25, 1996, Osborne and some friends were drinking a

t 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 Cl oud, and Liberty Joe Morgan. On the way to Gordon, the foursom e stopped in White Clay, Nebra ska, where they picked up a trailer and a twelve pack of be er. The foursome continued drinking during the trip. After loading the cinde r blocks onto the trailer in Gordon, Osborne stopped at a liquor store and purchase d another twelve pack of beer and an eight pack of small Windsor whiskey bottles.
On the trip back to Pine Ridge, Myron Shaw and Go lden 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 t o convince O sborne 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 Bl azer approaching at a high rate of speed. Before hitting Shaw's vehicle , however, the Blazer turned right and rolled several times. Osborne and all thre e passengers were thrown from the Blazer.
Morgan sustained the most serious injuries, including a head injury and a broken hip, and re mained comatose for several months. Marlita Red Cloud suffered a fractured pelvis, a fractured rib, and extensive bruising. Wanbli Red Cloud suffere d injuries as well, but they were not addressed in the investigative reports. OsborneSouth Dakota Codified L aws § 22-16-42 (Lexis 1998) states, in pertinent part: 2
Any person who, while under the influence of an alcoholi c bevera ge, 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.

-3- 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 Sout

h Dakota Codified Laws § 22-16-42. Under 18 U.S.C. § 13, 2 Os borne's state law crime becomes a federal offense for which he is sentenced under the federal guidelines. SeeUnited States Sente ncing Commission, Guidelines Manual , § 2X5.1 (Nov. 1997).
Because there is no expressly promulgated gui deline for the offense of vehicular battery, the district court, in accordance with USSG § 2X5.1, looked for the mos t analogo us specific offense guideline. The court determined that the involuntary mansl aughter

guideline and the aggravated assault guideline were almost equall y analogous, except that death did not occur in this case. Th e court chose the aggravated assault guideline as the most analogous guideline. The court assigned Osborne a base offense level of fifteen, inc reased by six levels for permanent or life-threatening injury to a vi ctim, and decreased by two levels for acceptance of responsibility for a tota l offen se level of nineteen. Combining the offense level with a Category II crimina l history, the district court determined Osborne's guideline range to be thirty-three t o for ty-one months and sentenced Osborne to thirty-six months imprisonment, thre e years probation, and $10,570 restitution.-4-

Os borne first argues that the crime of aggravated assault is not sufficientl y analogous t o the crime of vehicular battery because vehicular battery requires a les s culpable state of mind than aggravated assault. Secondly, Osborne argues tha t involu ntary manslaughter, not aggravated assault, is the most analogous guideline t o his cr ime. Finally, Osborne contends that the district court's application of th e aggr avated assault guideline was inconsistent with the court's remarks during th e
sen tencing hearing and with the court's use of the involuntary manslaughter guideline in similar cases.

I.

Guideline 2X5.1 refers to the s ituation 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 mos t analogous guideline to vehicular battery in this case, but concluded that involuntar y manslaughter was the most analogous guideline to vehicular battery in the companion

cas e we decide today, United States v. Allard , No. 97-4006, we feel it necessary t o carefully analyze and articulate the procedures required by USSG § 2X5.1 and ou r standard of review.

This is particularly essential because, in addition to the two cases before u s 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 rev iew of the record, the court of appeals shall determine whether the sentence . . . (2) was imposed as a result of an incorrect application of t he sentencing guidelines . . . [the court of appeals] shall accept th e findings of fact o f the district court unless they are clearly erroneous and shal lgive due deference to the district court's application of th e 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 po licies (such as promoting respect for the law, pr oviding adequate deterrence, and protecting the public from further crime) , -5- Cong ress provided the standards of review for guideline appeals in 18 U.S.C

. § 3742 (e) (1994). However, the precise application of the statutorily mandate d 3 standard of review to USSG § 2X5.1 is a question of fi rst 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 de termine if there is a sufficiently analogous offense guideline and, if so, to appl y the guideline that is most analogous. Where there is no sufficiently analogou s guide line, 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, an d makes abundantly clear that there is a difference between a situation where the district judge is choosing the most analogous guideline among sufficiently analogou s guidelines , and a situation where there is no sufficiently analogous guideline. I n construi ng the guideline and the application note, we must give meaning to each o f these terms.

The first step of the USSG § 2X5.1 analysis is to determine whether there are any guid elines which are sufficiently analogous to the defendant's crime; if there ar e
no sufficiently analogous guidelines, then the defendant is to be sentenced using th e general provisions of 18 U.S.C. § 3553(b) (1994). See United States v. Cefalu , 85 4guid elines applicable to similar offenses and offenders, and the applicable polic y

statem ents 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); Unite d 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, 8 17 (9th Cir. 1993) (choosing more "apt" guideline pursuant to USSG § 2F1.1).

See Cefalu , 85 F.3d at 968 n.6; United St ates v. Mariano , 983 F.2d 1150, 1158 6 (1st Cir. 1993).

-6- F.3d 964, 9 66-69 (2d Cir. 1996). Scant precedent exists regarding the appropriat e standard of review on the district court’s determination of whether a guideline i s
su fficiently analogous to the defendant's crime. We hold that the district court’ s dete rminationas to whether there is a sufficiently analogous guideline to th e defendant's crime is reviewed de novo. See United States v. Gabay , 923 F.2d 1536 , 1545 (11t h Cir. 1991). First, the issue most generally will involve comparing th e element s of federal offenses to the elements of the crime of conviction. Secondly, a determination that there is not a sufficientl y 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 s tep of the USSG § 2X5.1 analysis requires the district court t o choose the most analogous guideline from the suffici ently analogous offense guidelines, if inde ed there are more than one. Conflicting precedent exists regarding th e appr opriate standard of review of the district court’s choice of the most analogou s guide line. The circuits differ on whether the choice of the most analogous guidelin e is a question of law to be re viewed 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 6Mariano recognizes the far broader and essentially legal question of whether 7 a particular offense guideline will always b e most analogous to the crime of conviction and indica tes that this question need not be answered. 983 F.2d at 1158. We agree.

-7- court’s choice of t

he 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 int o account all the circumstances of the case and make factual findings to support its choice. Our own circuit has recognized this concept. See Un ited 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. 199 8). 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 guid eline 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 anal ogous 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 declarin g the meaning of guideline terms. Instead, it involves evaluating which of two or mor e legal standards is most akin to the facts. Surely this process is an "application of th e guidel ines to the facts." Congress has explicitly mandated that we give due deferenc e to the district court's app lication of the guidelines to the facts, see 18 U.S.C. § 3742(e), and holding oth erwise is ignoring Congress' command. See Cefalu , 85 F.3d at 967 n.6; cf

. K oon 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-8-

se ntencing decisions and that deference due depends on the nature of the questio n presented).

The fin al reason we give due deference to the choice of the most analogou s gui deline is linked to our decision to apply de novo review on the question of whethe r
a guid eline is sufficiently analogous. The divergent standards of review strike th e ap propriate balance with respect to the Commission’s objective of avoidin g "unwarranted sentence disparities" between similarly situated defendants, while at th e
same t ime “maintaining sufficient flexibility to permit individualized sentences whe n warranted.” 28 U.S.C. § 991(b)(1)(B) (1994). With appellate courts reviewing th e
su fficiency question de novo, defendants will not receive sentences based on wholl y inappli cable guidelines. However, USSG § 2X5.1 cases are inherently out of th e 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 co urts will have more freedom to fashion the appropriate sentence in thes e unconventional situations on a case by case basis.

II.
Having d etermined the appropriate standard of review, we turn to the merits o f 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 a n apparent difference between the state of mind required for aggravated assaul t under feder al 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 aggravate d assault under the Sentencing Guidelines. See USSG § 2A2.2 comment. (listing 1 8 U.S.C. §§ 111, 112, 113(a)(2), (3), (6), 114, 115(a), (b)(1), 351(e), 1751(e) as statutory provi sions to which the aggravated assault guideline applies). The Sentencin g Guidelines define aggravated assault to i nclude a felonious assault involving "(b) serious bodily injury." USSG § 2A2.2 comment. (n.1). The most relevant form of-9-

aggrava ted assault to our discussion is assault resulting in a serious bodily injury, fo r whi ch 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 ele ments 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. F elix , 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, w e 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 doubl e counting wit h assault charged under 18 U.S.C. § 111. We reasoned that assaul t pro hibited under 18 U.S.C. § 111 may be violated by minimal physical contact or even without the p resence of any physical contact. Id. at 891-92. Wollenzien at least points to an acceptance of common law princip les such that attempts to commit battery and the act of putting another person in reasonable apprehension of bodily harm both fall within th e 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).

Osborn e nevertheless attempts to contrast the intent requirement for aggravate d assault with

the mental state requirement for vehicular battery by arguing that vehicular battery un der South Dakota law requires only criminal negligence. Osborne gives th e South Dakota statute too narrow a reading.

South Da kota's vehicular battery statute is worded almost identically to it s vehicular homicide statu te, 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-10-

1 9 98). 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 Da kotaheld in State v. Big Head , 363 N.W.2d 556 (S.D. 1985), that the vehicula r homicide statute was a general intent statute and, quoting earlier authority, stated, "[I]n a general i ntent crime, the prohibited result need only be reasonably expected to follow fromthe offender's voluntary act, irrespective of any subjective desire to accomplis h such res ult." Id. at 561 (citations omitted). Thus, in both South Dakota statutes th e pro hibitedresults, whether death or serious bodily injury, need only be reasonabl y expected to follow fro m 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 u npersuaded by Osborne's argument contrasting the intent requirement s of aggravated assault and vehicular battery. Further, we observe that both vehicular batter y and the aggravated assault under 18 U.S.C. § 113(a)(6) contemplate seriou s bodily in jury. See S.D. Codified Laws § 22-16-42; 18 U.S.C. §113(a)(6). We agre e with the district court that the aggravated assault guideline is sufficiently analogous t o vehicular battery.

We now tu rn to Osborne's argument that the aggravated assault guideline is no t the most analogous guideline to vehicular battery. In determining the most analogou s guideline under USSG

§ 2X5.1, a district court is to look not merely to the definition of the offenses, but al so 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 Osborn e'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-11-

trailer filled wi th 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 concl ude that Osborne's conduct fits well within the aggravated assaul t guid eline's purview, and we find support for this conclusion in United States v. Loera , 923 F.2 d 725 (9th Cir.), cert. denied , 502 U.S. 854 (1991). In Loera , the Ninth Circuit concluded that there was sufficient evide nce to convict the defendant of assault resulting in a serious bodily injury where the defendant swerved across the center line of the road, collidedwith an oncoming car, and two hours later tested at a blood alcohol level o f 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. a t 728 (internal citations and quotations omitted). Osborne's conduct was similar to th e cond uct 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 consequentia l accident an d injuries followed naturally from his decision. Thus, Osborne had th e general intent comp arable to that required for assault resulting in a serious bodily injury under federal law, and he caused such bodily injury.

As for Os borne's argument that involuntary manslaughter is more analogous t o vehicular battery, we first observe that death did not result in this case. More importantly, we give due de ference to the district court's choice of the most analogous guideline and cannot say the aggravated assault guideline was inappropriately applied in this case.

Osbo rne final contention is that the district court's application of the aggravate d assault guideline to his vehicular battery was inconsistent wit h the district court's remarks concerning the use of the involuntary manslaughter guideline and with the-12-

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 fo r involu ntary manslaughter involving criminal negligence rather than recklessness. Th e court's remarks thus had little relevance to its decision whether the aggravated assaul t guid eline or the involuntary manslaughter guideline was most analogous to Osborne' s offe nse. Further, the district court's application of the involuntary manslaughte r 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 O sborne's offense into the guidelines is similar to fitting a square peg into one of two round holes, but w e 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