UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4827

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

REUBEN AUGUSTINE ALVAREZ, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:08-cr-00566-RDB-1)

Submitted: August 29, 2011 Decided: September 6, 2011

Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

James Wyda, Federal Public Defender, Sapna Mirchandani, Staff 

Attorney, Greenbelt, Maryland, for Appellant. Rod J. 

Rosenstein, United States Attorney, Ayn B. Ducao, Assistant 

United States Attorney, Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

On April 11, 2007, United States Drug Enforcement 

Administration (DEA) Agents attempted to arrest Reuben Augustine 

Alvarez, Jr. pursuant to an arrest warrant. One car, carrying 

two agents, was angled across the street from the home where 

Alvarez was staying in order to prevent Alvarez from driving 

away. Nevertheless, Alvarez accelerated his vehicle toward the 

car carrying the two agents, striking it, as well as a parked 

car, before squeezing through the space and driving off. The 

agents were unable to arrest Alvarez that day. Eight days 

later, when confronted by law enforcement officers, Alvarez 

again fled. He was arrested a few minutes later.

Based on the April 11 incident, a jury convicted 

Alvarez of two counts of assaulting a federal officer with a 

dangerous weapon, in violation of 18 U.S.C. § 111 (2006), one 

count for each of the DEA agents in the car that Alvarez hit. 

The district court calculated Alvarez’s sentencing range as 

fifty-seven to seventy-one months, and imposed a variance 

sentence of thirty-six months of imprisonment. Alvarez asserts 

six claims of error on appeal. As explained below, we affirm in 

part and vacate and remand in part. 

First, Alvarez argues that he should not have been 

convicted of two counts of assaulting a federal officer, because 

he committed only one assaultive act. Whether his double 
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conviction was in error is reviewed for plain error, because 

Alvarez did not make this argument before the district court. 

United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008). The 

Government concedes, and we agree, that his double conviction 

was plainly erroneous. See Ladner v. United States, 358 U.S. 

169, 178 (1958) (“We thus hold that the single discharge of a 

shotgun . . . would constitute only a single violation of [the 

prior statutory section for 18 U.S.C. § 111].”). Accordingly, 

we vacate the conviction on Count Two and remand this action to 

the district court for the entry of an amended judgment.

Second, Alvarez argues that district court erred in 

denying his motion for judgment of acquittal because the 

evidence was insufficient to prove the requisite criminal 

intent. This Court reviews the district court’s denial of a 

motion for judgment of acquittal de novo. United States v. 

Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 

271 (2010). 

In reviewing the sufficiency of the evidence following 

a conviction, the court is to construe the evidence in 

the light most favorable to the government, assuming 

its credibility, and drawing all favorable inferences 

from it, and will sustain the jury’s verdict if any

rational trier of fact could have found the essential 

elements of the crime charged beyond a reasonable 

doubt. 

United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011) 

(citation and emphasis omitted). 
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To sustain a conviction for assaulting a federal 

officer with a dangerous weapon in violation of 18 U.S.C. § 111,

the Government must prove that Alvarez used a dangerous weapon 

to forcibly assault, resist, oppose, impede, intimidate, or 

interfere with any designated federal officer while that officer 

was performing official duties. 18 U.S.C. § 111(a)-(b). 

Section 111 “does not proscribe reasonable force employed in a 

justifiable belief that it is exerted in self-defense.” United 

States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966). 

“[T]he quantum of force which one may use in 

self-defense is proportional to the threat which he reasonably 

apprehends.” United States v. Black, 692 F.2d 314, 318 (4th 

Cir. 1982). “[W]here a defendant charged with violating § 111 

claims that he was unaware that the victim was a federal 

officer, the question becomes: would the defendant have been 

justified, because of the agent’s actions, in using force 

against the agent had the latter, in fact, been a ‘civilian.’” 

United States v. Hillsman, 522 F.2d 454, 460 (7th Cir. 1975). 

Here, there was more than sufficient evidence to 

establish that on April 11, Alvarez used force against the DEA 

agents that was disproportionate to any reasonably apprehended 

potential threat. Alvarez accelerated toward the car carrying 

the two agents, even though their car was parked and even though 

one of the agents had opened his door and begun to exit. There 
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was no evidence that the agents displayed any weapons or called 

out any threats. Because there was sufficient evidence to 

support the jury’s finding that Alvarez acted with the requisite 

criminal intent to support a conviction for assaulting a federal 

agent, and sufficient evidence to disprove any allegation of 

self defense, the district court did not err in denying 

Alvarez’s motion for judgment of acquittal.

Third, Alvarez argues that the district court erred in 

declining to include the entire jury instruction that he

requested. This Court “review[s] a district court’s decision 

whether to give a jury instruction for abuse of discretion.” 

United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010), 

petition for cert. filed, 80 U.S.L.W. 3015 (U.S. Feb. 4, 2011) 

(No. 10-1010).

A district court commits reversible error in refusing 

to provide a proffered jury instruction only when the 

instruction (1) was correct; (2) was not substantially 

covered by the court’s charge to the jury; and (3) 

dealt with some point in the trial so important, that 

failure to give the requested instruction seriously 

impaired the defendant’s ability to conduct his 

defense. 

Id. In determining whether the district court erred in 

instructing the jury, this Court reviews the district court’s 

jury instructions as a whole and in the context of the entire 

charge. Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 191 

(4th Cir. 2003). 
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Here, Alvarez requested that the court include a jury 

instruction first specifying that there may be cases where 

“ignorance of the official status of the person assaulted or 

resisted negates the very existence of criminal intent needed to 

find the defendant guilty” and next providing an example. The 

district court gave the instruction requested by Alvarez, except 

for the part that set forth a specific example. We conclude 

that the part of Alvarez’s requested jury charge setting forth a 

specific example was substantially covered by the rest of the 

jury charge and the district court did not commit reversible 

error in declining to add it.

Fourth, Alvarez argues that the district court erred 

in admitting evidence of his flight from law enforcement 

officers eight days after the April 11 incident. “Evidence of 

other crimes, wrongs, or acts is not admissible” if that 

evidence is used to prove the character of the defendant “in 

order to show action in conformity therewith.” Fed. R. Evid. 

404(b). However, such evidence is admissible for other 

purposes, “such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or 

accident.” Fed. R. Evid. 404(b). “Rule 404(b) is an 

inclusionary rule, allowing evidence of other crimes or acts to 

be admitted, except that which tends to prove only criminal 

disposition.” Penniegraft, 641 F.3d at 574 (citation omitted). 
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Whether a district court properly admitted evidence under Rule 

404(b) is an evidentiary ruling that is reviewed for abuse of 

discretion. United States v. Gray, 405 F.3d 227, 238 (4th Cir. 

2005). An abuse of discretion occurs only when “the [district] 

court acted arbitrarily or irrationally in admitting evidence.” 

Penniegraft, 641 F.3d at 574.

Here, Alvarez’s flight from law enforcement officers 

eight days after the April 11 incident was relevant to prove 

Alvarez’s lack of mistake. Thus, because the evidence was both 

relevant and not more prejudicial than probative, the district 

court did not err in admitting it. 

Fifth, Alvarez argues that the district court erred in 

applying a four-level sentencing enhancement under U.S. 

Sentencing Guidelines Manual (USSG) § 2A2.2(b)(2)(B) (2009), for 

use of a vehicle as a dangerous weapon, on the ground that it 

punished Alvarez twice for the same factor because the fact that 

he had used a vehicle as a dangerous weapon had already been 

incorporated into the base offense level for aggravated assault. 

Alvarez acknowledges that this court has expressly authorized 

this enhancement in this situation. United States v. Williams, 

954 F.2d 204 (4th Cir. 1992). Accordingly, the district court 

did not err in applying the enhancement.

Finally, Alvarez argues that the district court erred 

in applying a three-level enhancement under USSG § 3A1.2(b).
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Typically, the district court’s determination that a sentencing 

enhancement is warranted is a factual determination reviewed for 

clear error. United States v. Thorson, 633 F.3d 312, 317 (4th 

Cir. 2011). However, “when a party does not preserve an 

argument in the district court, we review only for plain error.” 

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Plain 

error review is warranted in this case because although Alvarez 

initially objected to the three-level enhancement under USSG 

§ 3A1.2(a), counsel for Alvarez specifically withdrew that 

objection. “To establish plain error, the appealing party must 

show that an error (1) was made, (2) is plain (i.e., clear or 

obvious), and (3) affects substantial rights.” Lynn, 592 F.3d 

at 577. Even if we assume the district court erred, Alvarez has 

failed to establish that the error affected his substantial 

rights. The district court imposed a below-Guidelines sentence 

and Alvarez has presented no evidence that the district court 

would have sentenced him any more leniently had the USSG

§ 3A1.2(a) enhancement not applied.

Accordingly, we affirm Alvarez’s conviction and 

sentence on Count One. We vacate the conviction on Count Two, 

vacate the judgment, and remand for entry of an amended 

judgment. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED