*District Judge of the Southern District of Mississippi,

sitting by designation.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 00-41360

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVE JOHN CALBAT,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

Corpus Christi Division 

 ___________________________________________________

September 18, 2001

Before DAVIS and JONES, Circuit Judges, and BARBOUR, District

Judge*, 

W. EUGENE DAVIS, Circuit Judge:

Steve John Calbat appeals various aspects of his sentence

imposed after he pled guilty to intoxication assault, a violation

of 18 U.S.C. §§ 7 and 13, the Assimilative Crimes Act, involving

§49.07 of the Texas Penal Code. Based on our conclusion that the

district court abused its discretion in setting the timing of

restitution payments, we vacate this aspect and remand for further

consideration of restitution. In all other respects, Calbat’s

sentence is affirmed.
2

I.

On July 1, 2000, Steve John Calbat drove his vehicle while he

was intoxicated and struck Robert Hanson, a ranger at the Padre

Island National Seashore Park. Hanson had just moved his car near

the entrance to the park when he saw the lights of another car

approaching. Calbat’s car came over the curb and hit Hanson’s car.

Hanson had put his left leg back inside of his car and was facing

Calbat’s car when he was struck. Hanson suffered extensive

injuries in the accident; two of his ribs were broken, and his

right leg had to be amputated between the knee and ankle. Calbat

asserted that the accident occurred when he had reached and looked

down and lost control of the vehicle. 

Calbat was indicted on one count of intoxication assault, a

violation of § 49.07 of the Texas Penal Code and 18 U.S.C. §§ 7 and

13, the Assimilative Crimes Act (the “ACA”). Calbat pleaded guilty

to the charge contained in the indictment in accordance with a

written plea agreement. In this agreement, the Government agreed

to recommend that Calbat receive a sentencing reduction for

acceptance of responsibility and the minimum applicable Guidelines

sentence. 

The district court agreed with the probation office’s

determination that the guideline that was most analogous to the

Texas offense of intoxication assault was U.S.S.G. § 2A2.2(a), the

aggravated-assault guideline. Under the provisions of that

guideline, the district court then upwardly adjusted the offense

level on the grounds that Calbat had caused serious bodily injury
3

and had used more than minimal planning in attempting to conceal

the offense. The latter enhancement was based on a finding that

Calbat had tried to conceal the crime by fleeing. The district

court granted Calbat a downward adjustment for acceptance of

responsibility. These adjustments resulted in a sentencing range

of 33-41 months. The district court sentenced Calbat to 36 months

in prison and a 3-year term of supervised release. The district

court also ordered Calbat to make restitution in the amount of

$250,000 over the course of his prison term and supervised release.

Calbat filed a timely notice of appeal.

II.

Calbat argues that the district court erred in its application

of the guidelines in determining his sentence. Calbat’s main

argument is that the district court erred in selecting the

aggravated assault guideline, § 2A2.2, as the most analogous

guideline applicable to the Texas offense of intoxication assault.

He contends that the involuntary manslaughter guideline, at §

2A1.4, is more analogous to his conduct because it, like the Texas

Penal Code provision for intoxication assault, § 49.07, encompasses

recklessly driving a vehicle while intoxicated. We disagree.

The ACA’s basic purpose is one of borrowing state law to fill

gaps in the federal criminal law that applies on federal enclaves.

Lewis v. United States, 523 U.S. 155, 160, 118 S. Ct. 1135, 1139

(1998). The ACA provides that the defendant shall be guilty of a

“like offense” and subject to a “like punishment” as that provided
1 We acknowledge the logic of the approach adopted by the 8th

Circuit in United States v. Osborne, 164 F.3d 434 (8th Cir. 1999)

and United States v. Allard, 164 F.3d 1146 (8th Cir. 1999). The

Eighth Circuit reviews the district court’s decision as to whether

there is a sufficiently analogous guideline under U.S.S.G. § 2X5.1

de novo, but the decision as to which of two or more sufficiently

analogous guidelines is the most analogous with due deference.

Both Osborne and Allard involved convictions for vehicular battery

resulting from drunk driving. The same district court and appeals

panel decided both cases. The cases held that both the aggravated

assault guideline and the involuntary manslaughter guideline were

sufficiently analogous to the assimilated crime of vehicular

battery. In Osborne, the defendant’s sentence under the aggravated

assault guideline was affirmed. In Allard, the defendant’s

sentence under the involuntary manslaughter guideline was affirmed,

although the district court’s decision to add the enhancements from

the aggravated assault guideline was reversed. However, we are

bound by prior precedent in this circuit requiring de novo review

of this inquiry.

4

by state law. 18 U.S.C. § 13(a). Consequently, “state law fixes

the range of punishment, but the Sentencing Guidelines determine

the actual sentence within that range.” United States v.

Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990). If there is no

guideline for a particular offense, including an ACA offense, the

court is to use “the most analogous offense guideline.” § 2X5.1

and comment. This court reviews a district court’s determination

of the most analogous guideline under the de novo standard. United

States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996).1 

The background comment to § 2X5.1 suggests that the most

analogous guideline is the one that covers the “type of criminal

behavior” of which the defendant was convicted. “Whether there

is a sufficiently analogous guideline to a particular crime is

generally a task of comparing the elements of the defendant’s

crime of conviction to the elements of federal offenses already
5

covered by a specific guideline.” United States v. Nichols, 169

F.3d 1255, 1270 (10th Cir.), cert. denied, 528 U.S. 934, 120

S.Ct. 336 (1999). Calbat pled guilty to intoxication assault,

which is a third degree felony under Texas Penal Code § 49.07. 

The elements of intoxication assault are that a person, by

accident or mistake, while intoxicated, operates a motor vehicle

and by reason of that intoxication causes serious bodily injury

to another. Although the federal assault statute at 18 U.S.C. §

113 does not specifically address driving while intoxicated, it

does contain a provision which closely matches the crime of

intoxication assault. Section 18 U.S.C. 113(a)(6) punishes

“assault resulting in serious bodily injury.” 

In contrast to the other forms of aggravated assault under

18 U.S.C. §113 (assault with intent to commit murder, §113(a)(1),

with intent to commit any felony except murder, §113(a)(2), with

a dangerous weapon, with intent to do bodily harm, §113(a)(3)),

aggravated assault involving serious bodily injury is a general

intent crime. United States v. Davis, 237 F.3d 942, 944 (8th

Cir. 2001), United States v. Benally, 146 F.3d 1232, 1237-38

(10th Cir. 1998). A specific intent to do harm is not an

element of the offense. Id. Accordingly, the voluntary

consumption of alcohol followed by the operation of a motor

vehicle while in a state of voluntary intoxication can satisfy

the mens rea element of a violation under § 113(a)(6). United

States v. Loera, 923 F.2d 725, 727 (9th Cir. 1991); United States
6

v. Osborne, 164 F.3d 434, 440 (8th Cir. 1999). This is

sufficiently analogous to the Texas crime of intoxication assault

for which no culpable mental state is required. Stidman v.

Texas, 981 S.W.2d 227, 230 (Tex. Crim. App. 1998). The guideline

provision for 18 U.S.C. § 113 is § 2A2.2, the provision for

aggravated assault applied by the district court.

We reject Calbat’s argument contending that the most

analogous guideline to the offense of intoxication assault is

that for involuntary manslaughter at § 2A1.4. The

involuntary-manslaughter guideline does address the specific

behavior of driving while intoxicated. Application note 1 to §

2A1.4 provides that a homicide resulting from driving while

intoxicated should be considered reckless conduct and will thus

receive a base offense level of 14. § 2A1.4 (comment) n.1. 

However, the involuntary manslaughter guideline contains an

element not present in this case, the death of the victim. We

acknowledge the anomaly that the use of the aggravated assault

guideline results in a higher sentence than the use of the

involuntary manslaughter guideline. However, it is not our role

to second guess the sentences established in the guidelines.

Accordingly, we find that the most analogous guideline

applicable to the crime of intoxication assault under the Texas

Penal Code is § 2A2.2, aggravated assault. 

III.

Calbat next argues that the district court engaged in
7

impermissible double-counting by enhancing his sentence based on

the severity of Hanson’s injuries because “the injury was already

the reason for using the aggravated assault guideline instead of

the driving while intoxicated guideline.” This circuit has

recognized that the guidelines do not contain a general

prohibition against double-counting. United States v. Box, 50

F.3d 345, 359 (5th Cir. 1995). Rather, double-counting is

prohibited only if it is specifically forbidden by the particular

guideline at issue. Id. The prohibition must be in express

language. Id. There is no such prohibition against the

enhancement of which Calbat complains. Thus, even if it is

assumed for the sake of argument that this enhancement

constitutes double-counting, there is still no error. 

IV.

Calbat’s final sentencing-related argument is that the

district court erred in enhancing his sentence by two levels

under § 2A2.2(b)(1), based on a finding that it involved more

than minimal planning. Section 2A2.2(b)(1) provides for a

two-level increase of the offense level if the offense involves

"more than minimal planning." "More than minimal planning" is

defined in the commentary to § 1B1.1. See § 2A2.2, comment.

(n.2). According to the commentary to § 1B1.1, this enhancement

should be applied if the defendant undertook “more planning than

is typical for commission in simple form” or if “significant

affirmative steps were taken to conceal the offense.” § 1B1.1,

comment. (n.1(f)). Whether a defendant engaged in more than
8

minimal planning is a fact question that is reviewed for clear

error. United States v. Lage, 183 F.3d 374, 384 (5th Cir. 1999),

cert. denied, 528 U.S. 1163 (2000). A factual finding is not

clearly erroneous if it is plausible in light of the record read

as a whole. United States v. Watson, 966 F.2d 161, 162 (5th Cir.

1992). 

The district court gave Calbat the enhancement for more than

minimal planning “not because of the planning prior to the

offense, but the planning to cover up the offense that occurred

after the striking of the vehicle and Mr. Hansen.” The district

court’s determination that Calbat attempted to flee the scene of

the crime was supported by adequate evidence and based on a

credibility determination between the witnesses and is thus

entitled to deference. See United States v. Huskey, 137 F.3d

283, 291 (5th Cir. 1998). Accordingly, the district court’s

decision to enhance Calbat’s sentence on the basis that it

involved more than minimal planning is not clearly erroneous.

V.

Calbat next raises three issues related to the district

court’s order of restitution. The district court ordered Calbat

to pay a total of $250,000 in restitution to Hanson and the

United States. The judgment ordered restitution to begin 60 days

after the date of his confinement and that no more than 20

percent of the funds in Calbat’s inmate trust fund be withheld

for this purpose. Calbat is required to pay the balance due upon
9

his release from custody in equal monthly installments during his

three year term of supervised release. Additionally, Calbat was

ordered to pay the full amount of his 401k annuity towards

restitution. 

Calbat contends that the district court erred in ordering

him to pay the full $2,800 of his § 401K retirement plan towards

restitution because this order was in violation of ERISA’s antialienation clause, citing United States v. Smith, 47 F.3d 681

(4th Cir. 1995). Although Calbat has not waived this issue, as

contended by the Government, Calbat also made no objections to

the surrender of his § 401K account. The plain-error standard of

review thus applies. Under this standard, this court may address

Calbat’s argument only if (1) there is an error, (2) the error is

plain, and (3) the error affects substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). If these factors are

established, the decision to correct the forfeited error is

within the sound discretion of the court, and the court will not

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings. Id. at 735-36. 

This issue is controlled by United States v. Gaudet, 966

F.2d 959, 954 (5th Cir. 1992). Like Calbat, Gaudet argued that

the district court erred in ordering him to relinquish his

pension to satisfy a restitution obligation because this order

violated ERISA’s anti-alienation provision. 966 F.2d at 963. 

Gaudet had not objected to this order in the district court. Id.
10

The court held that, although Gaudet had a “substantial legal

argument,” this error was not obvious and thus did not meet the

plain-error standard. Id. at 963-64. Because Calbat is

presenting the same argument under the same standard of review,

he is not entitled to relief on this issue.

Calbat next challenges the district court’s decision not to 

credit him for insurance proceeds received by Hanson. Under the

Victim and Witness Protection Act, restitution may be ordered to

victims of an offense. United States v. Hughey, 147 F.3d 423,

437 (5th Cir. 1998); 18 U.S.C. § 3663. An order of restitution

must be limited to the loss stemming from the specific conduct

supporting the conviction. Hughey, 147 F.3d at 437. Section

3664(j)(2) provides that “[a]ny amount paid to a victim under an

order of restitution shall be reduced by any amount later

recovered as compensatory damages for the same loss by the

victim” in any state or federal civil proceeding. 

The availability of such an offset depends upon the payment 

made in the settlement, whether the claims settled involved the

same acts of the defendant as those underlying his criminal

conviction, and whether the payment satisfies the penal purposes

the court sought to impose. United States v. All Star Indus.,

962 F.2d 465, 477 (5th Cir. 1992). It is the defendant’s burden

to establish an offset to a restitution order. United States v.

Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998).

Calbat has not met this burden. The record contains no

documentation to detail the terms of this settlement. The only
11

mention of these insurance proceeds is Hanson’s testimony at

sentencing that Calbat’s insurance company offered him $25,000,

which was Calbat’s policy limit. Further, even if Calbat had met

this burden, the record shows that Hanson’s medical bills

exceeded the amount of restitution imposed. Calbat has not made

a showing that the restitution order was illegal. 

Calbat next argues that the district court erred in ordering

him to pay the full amount of the $250,000 restitution over the

course of his three-year term of imprisonment and his three-year

term of supervised release. The legality of the district court’s

order of restitution is reviewed de novo. Hughey at 436. Once

this court determines that a particular restitution award is

permitted by the pertinent law, the propriety of that award is

reviewed for an abuse of discretion. Id. Under this standard,

this court will reverse a restitution order only if the defendant

shows that it is probable that the court failed to consider one

of the mandatory factors and the failure to consider the factor

influenced the court. United States v. Schinnell, 80 F.3d 1064,

1070 (5th Cir. 1996). Those factors are: the financial resources

and other assets of the defendant; projected earnings and other

income of the defendant; and any financial obligations of the

defendant, including obligations to dependents. 18 U.S.C. §

3664(f)(2). In United States v. Myers, 198 F.3d 160, 169 (5th

Cir. 1999), we held that the MVRA (Mandatory Victims Restitution

Act) “requires that the district court consider the ‘financial

resources of the defendant’ in determining the schedule under
12

which the restitution is to be paid. 18 U.S.C. § 3664(f)(2)(A).” 

According to the PSR, at the time of the offense, Calbat was

employed as a purchasing manager and earned approximately $39,000

a year. His only assets were a 1995 Pontiac Grand Prix valued at

$4800 and his § 401K account, which was valued at $2800. 

Calbat’s debts amount to approximately $1,200. Under the payment

schedule imposed by the district court, the average yearly

payment required of him, over $41,000, is greater than his yearly

income at the time of the offense. The district court noted at

sentencing that “I frankly do not anticipate that he would ever

be able to pay the full $250,000.” Absent a large windfall,

Calbat will not be able to pay the full amount of restitution

within the time ordered by the district court. This unrealistic

payment schedule is particularly troubling in light of the fact

that payment of restitution is one of the conditions of Calbat’s

supervised release. Calbat could thus be sent back to prison for

failure to make restitution payments in a timely manner. Under

these circumstances, we conclude that the district court abused

its discretion in setting the payment schedule for the

restitution order.

VI.

For the foregoing reasons, we VACATE the sentence and REMAND

for resentencing consistent with this opinion.
13