* The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0030p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_________________

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v
. C HRISTIAN G AGNON , Defendant-Appellant

. X - - - -> , - - - N No. 07-2133

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 07-50199—George C. Steeh, District Judge. Argued: December 9, 2008 Decided and Filed: January 29, 2009 Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge. *

_________________ COUNSEL ARGUED: Joseph A. Niskar, Detroit, Michig an, for Appellant. Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Joseph A. Niskar, Detroit, Michigan, for Appellant. Ross MacKenzie, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. This case turns on the surprisingly vexing determination of what distinguishes a “simple assault” from “all other cases” under 18 U.S.C. § 111, which imposes punishment on anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” certain federal officers and

1No. 07-2133 United States v. Gagnon Page 2

employees. Defendant Christian Gagnon argues that his conviction was improper because the magistrate judge did not find th at he committed “assault” and instead only found that he forcibly resisted, impeded, and interfered with an officer. But, because § 111 expressly prohibits more conduct than merely the commission of common-law assault, we affirm.

I. In June 2006, after a security guard at a marina in St. Clair Shores, Michigan identified Christian Gagnon as possibly having immigration status problems, federal Border Patrol Agents confronted him. Ga gnon, a Canadian citizen, had been drinking – he testified to having had at least “six b eers,” “a cocktail,” and “another beer” – and he did not have his immigration documents with him. He searched the boat cabin for his passport and called his fiancée for help, but was unable to locate it. The agents, concerned that he was improperly within the country, called their superior to request a notice for Gagnon to appear before an immi gration judge. While loud music played in the background, one agent observed Gagnon “sudde nly jump up” and testified later that he had feared that Gagnon might attack. The agents tried to force Gagnon to sit down, he resisted, and they handcuffed him. Afte r a somewhat tumultuous back and forth, the agents loaded Gagnon into the back of their Border Patrol vehicle. They asserted that Gagnon made himself vomit by sticking his fi nger down his throat (Gagnon stated that his stomach was upset from drinking alcohol), and the ag ents alleged that Gagnon spit at them through the vehicle’s security screen between “five and ten times” while continually yelling obscenities. This encounter crescendoed the next day when one of the agents issued Gagnon a citation notice charging him with a violati on of 18 U.S.C. § 111. The parties agreed to proceed with the matter as a Class B misdemeanor charge (and thus the government was not required to file an information and th ere was no formal indictment), and Gagnon was convicted of a misdemeanor following a bench trial before a magistrate judge. The magistrate judge sentenced him to six months in prison given his Guidelines range. The district court affirmed.No. 07-2133 United States v. Gagnon Page 3

1 Section 111 provides: In general.– Whoever– (1) forcibly assaults, resists, opposes, impe des, intimidates, or interferes with any [designated federal officer or employee] while engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any pe rson who formerly served as a [designated federal officer or employee] on account of the performance of official duties during such person's term of service, shall, where the acts in violation of this s ection constitute only simple assault, be fined under this title or imprisoned not more than oneyear, or both, and in all other cases, be fined under this title or imprisoned not more than 8 years, or both. (b) Enhanced penalty.–Whoever, in the co mmission of any acts described in subsection (a), uses a deadly or dangerous weapon (i ncluding a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 111. II. Our jurisdiction can neither be waived nor assumed. A defendant may not appeal directly from a magistrate’s judgment to the court of appeals, but rather must appeal to the district court. 18 U.S.C. § 3402; FED

. R. C RIM

. P. 58(g)(2). And, although there is no provision that expressly allows a defendant to appeal from a district court’s judgment affirming a conviction by a magistrate, 18 U. S.C. § 1291 grants appellate courts the authority to entertain appeals from “all final decisions of the district courts.” So this language includes final district court adjudi cations of appeals from misdemeanor trials by magistrate judges. See, e.g., United States v. Aslam , 936 F.2d 751, 754 (2d Cir. 1991). Indeed, such appeals have routinely been allowed, see, e.g., United States v. Forcellati , 610 F.2d 25, 30 (1st Cir. 1979), and there is little reason to refuse Gagnon’s appeal for prudential reasons because Gagnon appeals a conviction that resulted in jailtime and criminal trials before magistrates ought to be encouraged.

III. Before getting to the primary question in this appeal, we must first address a structural point of first impression inthis Circuit. Although 18 U.S.C. § 111 1 appears to set out a single offense with three levels of punishment to be imposed depending on theNo. 07-2133 United States v. Gagnon Page 4

finding of certain sentencing elements, the S upreme Court has instructed that statutes with this type of structure infact set forth separate crimes whose elements all must be proven to a jury. In Jones v. United States , 526 U.S. 227, 252 (1999), the Court construed the federal carjacking statute – which also begins with a general offense provision and is followed by provisions defini ng levels of punishment based on varying criteria – and held that it defines separate crimes and that the factors leading to higher punishment must be considered elements of crimes and not sentencing enhancements. Id. This construction was necessary to avoi d constitutional problems that would arise if elements of crimes were re-labeled “sen tencing factors”: Congress may not circumvent the constitutional requirement that elements of crimes must be submitted to a jury and proven beyond a reasonable doubt by re-labeli ng them “sentencing enhancements.” Id. Imagine the problems if Congress created a statute entitled “theft” that distinguished between petty theft and violent burglaries on the basis of “sentencing enhancements” not submitted to juries or proven beyond a reasonable doubt.
In any event, Apprendi v. New Jersey , 530 U.S. 466 (2000) – which was decided after Jones and held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” – makes it indisputable that § 111 too must be treated as creating three separate crimes whose elements must all be submitted to a jury rath er than as a single crime with three separate punishments determined on the basis of sentencing factors submitted to a judge. Those three crimes are: (1) “simple assault” (misdemeanor); (2) violations of § 111 that either involve a deadly or dangerous weapon or result in bodily injury (aggravated felony); or (3) “all other cases” (felony). 18 U.S.C. § 111(a)- (b). Our sister courts of appeals are unanimous on this point. See, e.g. , United States v. Vallery , 437 F.3d 626, 630 (7th Cir. 2006); United States v. Ramirez , 233 F.3d 318, 321 (5th Cir. 2000) (overruled on other grounds by United States v. Cotton , 535 U.S. 625 (2002)).No. 07-2133 United States v. Gagnon Page 5

2 Congress recently amended § 111(a) as a part of the Court Security Improvement Act of 2007, effective January 7, 2008. See Pub. L. No. 110-177, § 208(b), 121 Stat. 2538 (2008). The amended version of the statute is not before the Court in this case, and in any event the amendments do not directly resolve the ambiguity at issue here. IV. So we turn to the primary question here : what is the difference between “simple assault” and “all other cases” under 18 U. S.C. § 111? Section 111 – titled, “Assaulting, resisting, or impeding certain officers or em ployees” – has two parts. The first prohibits “forcibly assault[ing], resist [ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with” certain active federal officers or employees and “forcibly assault[ing] or intimidat[ing]” former officers or employees . 18 U.S.C. § 111(a)(1)-(2). The second part sets out three levels of punishment for offenders: The first provides that anyone who violates § 111 and uses a deadly or dangerous weapon or inflicts bodily injury is guilty of a felony punishable by up to twenty years in jail; id. at § 111(b); the second provides that anyone who commits “only simple assault” is guilty of a misdemeanor punishable by up to a year in prison and a possible fine, id. at § 111(a); and the third provides that “in all other cases,” a defendant is guilty of a felony punishable by up to eight years in prison and a possible fine. Id

. 2
The difficulty concerns how to distingui sh between cases involving “only simple assault” from “all other cases.” There is no obvious answer. The st atute does not define “simple assault” and neither is it defined elsewhere in the U.S. Code. And, while § 111(a)(1) prohibits six different actions (forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering, with a ssault being but one), the punishment level clauses, by contrast, distinguish between misdemeanors and felonies solely in terms of “assault.” Before turning to the government’s interpretation distinguishing “simple assaults” from “all other cases,” we begin with Gagnon’s.

A. At the close of the bench trial, the magistrate judge stated: The statute proscribes the forcibleassault, resisting, opposing, impeding, intimidating or interfering with any person which [sic] engaged in or onNo. 07-2133 United States v. Gagnon Page 6

3 Although Gagnon heavily relies on Hathawayin his brief – and that case counsels in favor of his view – the case that most squarely supports his claim is the Ninth Circuit’s opinion in United States v. Chapman , 528 F.3d 1215 (9th Cir. 2008). account of the performance of official duties. The official duties element is conceded based upon the testimony, and in view of the defendant’s admitted consumption of substantial al cohol, I am satisfied that – that the element of forcible resistance, forc ible impeding, forcible interference is satisfied in this case . In view of that finding, I will find that the defendant is guilty of the offense charged and enter a finding to that effect. J.A. 102 (emphasis added). Gagnon argues th at these findings were insufficient to support his conviction. Although styled as a sufficiency-of-the-evidence challenge, the real question here concerns how this Court should interpret 18 U.S.C. § 111. This Court “review[s] questions of statutory interpretation de novo.” United States v. Parrett , 530 F.3d 422, 429 (6th Cir. 2008).

In reliance on the Tenth Circuit’s decision in United States v. Hathaway , 318 F.3d 1001 (10th Cir. 2003), Gagnon argues that § 111 requires a finding of actual common-law “assault” to sustain any conviction under § 111. 3 In Hathaway , the Tenth Circuit vacated a felony conviction under § 111 because the government had not alleged or proven the elements of “assault.” Specifically, the Hathaway court reasoned first that at common law “simple assault” was defined as “either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent pr esent ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 1007. Second, the Hathaway court observed that when Congress amended § 111 in 1994 to add the phr ase “simple assault” and thus create § 111’s misdemeanor offense level (previously all violations of § 111 were felonies), see Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, it apparently borrowed the phrase from 18 U.S. C. § 113, which prohibits assaults within maritime and territorial jurisdiction. Becau se § 113 is limited only to “assaults” (and does not list any of the other five actions lis ted in § 111) the Tenth Circuit reasoned that § 111 too must be limited to prohibiting only common-law assault and nothing else. Hathaway , 318 F.3d at 1008-09.No. 07-2133 United States v. Gagnon Page 7

4 Congress’s recent amendment to § 111 approaches this rationale: Assaults are now treated as felonies if they “involve physical contact . . . or th e intent to commit another felony.” Pub. L. No. 110-77. Nevertheless, Congress’s amendment does little to clarify the primary question in this appeal: whether § 111 is limited only to assaults or includes all the actions spelled out in § 111(a). So Gagnon’s argument is that Hathawaysupports his view that the government must prove that the defendant committed an assault and either that there was physical contact or the defendant had the intent to commit murder or another serious felony to sustain a felony conviction under § 111. 4 And the Ninth Circuit has explicitly endorsed this view. United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008) (concluding that its construction of § 111 “leaves no r oom for a conviction that does not involve at least some form of assault”). This has obvious appeal for Gagnon: under this reading, “while a defendant could be charged w ith resisting, opposing, impeding, intimidating, or interfering, he could not be convicted unl ess his conduct also amounted to an assault.” Chapman , 528 F.3d at 1219. Here, the magistrate judge did not find that Gagnon had committed forcible assault against the border patrol officers but instead found that he merely forcibly resisted, impeded, and interfered with them. But the fatal problem with this reading is that it makes a great deal of what § 111 does say entirely meaningless, which flies inthe face of the Supreme Court’s repeated instruction that “courts should disfavor interpretations that render language superfluous.” Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 253 (1992). Gagnon’s reading disregards five of the six actions Congre ss specifically delineated and instead collapses the inquiry into a single one: was an assault committed? However appealing this approach might be from a policy perspec tive or as an easy way to apply a rather convoluted statute, it is nevertheless impermissible as offensive to the statute’s text. Congress left much open with § 111 – particularly when it carved into it a murky distinction between “simple assaults” and “all other cases” – but that is no excuse to ignore what it plainly does say. Congress’s drafting makes clear that § 111’ s purpose is to protect federal officers and certain employees from a broader rangeof harmful conduct than just common-law assault. If Congress meant only assault it could have said only assault, which is all it saidNo. 07-2133 United States v. Gagnon Page 8

5 We can also dispose of a hyper-literal approach to § 111. This reading suggests that when Congress amended § 111 to say “simple assault,” it meant something like “simpl[y] assault,” in that if a defendant committed only assault, and nothing more, then he was guilty of a misdemeanor, but if he committed any of the other five prohibited actions (either alone or in conjunction with an assault) then he was guilty of a felony under the “all other cases” catchall. This reading leads to absurd results: a defendant who assaulted a border patrol officer would be guilty of a misdemeanor (so long as he did not use a deadly weapon or cause bodily injury), while one who passively resisted or impeded such an officer – but did not in any way threaten or cause an apprehension or fear of injury – would be guilty of a felony. Indeed, the incentive would be for suspects to assault agents rather than merely interfere with them, as the law would punish them more severely for their prudence. That cannot be what Congress intended.
6 These cases, relied on by the government in its brief, did not precisely address the question before us – whether a defendant is guilty of a misd emeanor or nothing at all – and instead addressed a related but slightly distinct one: what actions c onstitute a felony conviction versus a misdemeanor under § 111(a)? Though not directly controlling, we believethat their rationales support our reading and we therefore disagree with the Ninth Circuit’s view, despiteit being the only circuit to have directly addressed this precise issue. Compare Chapman, 528 F.3d at 1219 (“[W]hile a defendant could be charged with resisting, opposing, impeding, intimid ating, or interfering, he could not be convicted unless his conduct also amounted to an assault.”), with Vallery , 437 F.3d at 633 (“Moreover, in addition to the plain language of the statute, case law supports Vallery by stating or implying that the simple assault provision applies to the entirety of § 111(a).”) (emphasis added); Yates , 304 F.3d 818, 822 (8th Cir. 2002) (“We hold that, in the context of § 111, the definition of simple assault is conduct in violation of § 111(a) , which does not [] involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit murder or another serious felony.”) (emphasis added); Ramirez , 233 F.3d at 322 (holding statutory definition of “all other cases” assault to be “any physical contact which by which a person ‘forcibly assaults, resists, impedes, intimidates, or interfere s with’” a covered officer) (emphasis in original). in 18 U.S.C. § 113. Instead, Congress chose to be specific: it named the statute “Assaulting, resisting, or impeding certain o fficers or employees,” and it took the care to include six prohibited actions for active officials in subsection § 111(a)(1) – assaulting, resisting, opposing, impeding, intimid ating, and interfering with – and then to cull those six down to two in § 111(a)(2), where it prohibited only forcibly assaulting and intimidating former federal officials. Congress would not have gone to this trouble if all it meant was assault alone. So that reading is unsatisfactory. 5

B. The better reading of the statute is one we think indicated by the majority of our sister circuits that have addressed § 111 in detail. See, e.g., United States v. Hazlewood , 526 F.3d 862 (5th Cir. 2008) ; Vallery , 437 F.3d at 630. 6 Like the Tenth Circuit’s approach, the difference between “simple assault” and “all other cases” is determined in light of the common law definition quoted earlier, but this reading also recognizes that when Congress amended § 111 in 1994 it used th e phrase “simple assault” as a term of art to incorporate the actions proscribed in§ 111(a)(1) and § 111(a)(2). It did so throughNo. 07-2133 United States v. Gagnon Page 9

the common-law lens of “simple assault” as excluding cases involving forcible physical contact or the intent to commit a serious felony. In other words, the phrase “simple assault” differs from “all other cases” in that “simple assaults” involve the commission of anyof the prohibited actions listed in § 111(a)(1) and § 111(a)(2), while “all other cases” covers the commission of these same violations plus the intent to commit a felony or resulting physical contact from forcible (and thus intentional) action. See United States v. Kimes , 246 F.3d 800, 808-09 (6th Cir. 2001) (holding that “forcible” applies to each of the prohibited actions in § 111 and further that intoxication is not a defense b ecause § 111 creates “a general intent crime as to which evidence of diminished capacity is not admissible”). And “simple assault” becomes a term of art that includes the forcib le performance of any of the six proscribed actions in § 111(a) without the intent to cause physical contact or to commit a serious felony. Contrary to the Ninth Circuit’s asserti ons, this reading would not make a felony out of cases where a defendant unlawfully re sisted a federal agent where “the physical conduct is initiated by the arresting o fficer rather than the arrestee,” Chapman , 528 F.3d at 1221, because, in those cases, the arrestee would not have “forcibly” initiated the physical contact and would therefore insteadbe guilty of only a misdemeanor “simple assault” under the statute. By contrast, if an arrestee resisted or interfered with covered officials by pushing, punching, or headbutting th em, for example, he would be guilty of a felony under the “all other cases” clause.

C. Having concluded that misdemeanor “simple assaults” under § 111 refer to cases where a defendant has forcibly performed one of the prohibited actions of § 111(a) without forcibly or intenti onally creating physical conduct himself and without the intent to commit a serious felony, this case becomes straightforward. The magistrate judge found that Gagnon forcibly resisted, impeded, and interfered with the border patrol agents who attempted to check on his immigr ation status and detain him. The record fully supports those conclusions on the ba sis of Gagnon’s admitted drunkenness and theNo. 07-2133 United States v. Gagnon Page 10

7 This construction of the statute also avoids the necessity of deciding the timeless question whether spitting a “lugie” towards someone, by itself, constitutes an “assault.” See Br. for United States at 14 (“Although Gagnon’s spittle may not have actually touched [the agent], it is clear . . . that Gagnon was attempting quite seriously to hit him. Given the si ze of the holes in the security screen a well-aimed lugie could have done the trick. Clearly, this conduct c onstituted a simple assault.”) (citations to the record omitted). We also leave aside for another day the less timeless but no less profound question whether – assuming spitting alone could constitute an assault – a successful spit (one that hit its intended target) creates sufficient “physical contact” under our c onstruction of § 111 to elevate lugie-hurling from misdemeanor “simple assault” into being a felony under the “all other cases” clause. magistrate judge’s crediting the government’s assertions that Gagnon acted defiantly while being detained and taken away. 7 We cannot say that those determinations were error, and they are all that the statute requires.

V. For the above reasons, we affirm Gagnon’s conviction and sentence.