98-50817.opn IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50817

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR CLARK,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

June 3, 1999

Before JONES, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This appeal requires us to resolve whether the district court erred in determining that the two

United States Marshals whose arrest Defendant-Appellant Victor Clark (“Clark”) resisted were the

primary “v ict ims” o f Clark’s offense. The court below held that they were, which prevented

“grouping,” for sentencing purposes, of the two counts of his conviction. Finding no error, we affirm

the judgment of the district court.

F ACTUAL AND P ROCEDURAL B ACKGROUND

On Oc t o ber 14, 1997, Deputy U.S. Marshals Darren Sartin and Matt Merkle (“Merkle”)1 Clark’s base offense level for each count was six. Three points were added because the

offense involved “physical contact” bringing the adjusted offense level to nine. The offenses were

to be “grouped” separately for purposes of a multiple-count adjustment, which resulted in a two-point

increase and a combined adjusted offense level of eleven. Clark received a two-level reduction for

acceptance of responsibility. These calculations resulted in an adjusted offense level of nine.

2 98-50817.opn attempted to execute a federal arrest warrant on Clark for violating the conditions of his supervised

release. Clark was uncooperative as demonstrated by his refusal to obey numerous commands to put

both hands behind his back so that the officers could handcuff him. Clark also made threatening and

abusive sta t ements to the marshals and reached into his right front pocket. He refused to take his

hand out of his po cket when instructed to do so which prompted Merkle to withdraw his baton.

Clark eventually withdrew his hand from his pocket yet continued to shout expletives at the officers.

After a scuffle, in which Clark was subdued by pepper spray, the marshals restrained him.

On December 15, 1997, Clark pled guilty to an indictment charging him with two counts of

resisting arrest in violation of 18 U.S.C. § 111 (1996). The probation office prepared a Presentence

Report (“PSR”) which reflected a combined offense level of nine and a criminal history category of

III. 1 The applicable guideline range of imprisonment was eight to fourteen months. Clark objected

to the PSR, and in particular to the multiple-count adjustment. He argued that separating the two

counts of resisting arrest into two “groups” was contrary to § 3D1.2 of the United States Sentencing

Guidelines (“U.S.S.G.” or “Guidelines”) since the counts of conviction arose from a single arrest

incident. C f

. U.S. S ENTENCING G UIDELINES M ANUAL § 3D1.2 (1998) (providing that all counts

involving substantially the same harm shall be grouped together into a single group). According to

Clark, the fundamental aim of 18 U.S.C. § 111 was not to protect individual governmental officers,

but to guard against the victimization of “government and its functions.” As a result, Clark

explained, the officers were only “indirect or secondary victims” within the meaning of the relevant2 In explaining the term “victim,” application note 2 of the commentary to U.S.S.G. § 3D1.2

provides: “The term ‘vict im’ is n o t int ended to include indirect or secondary victims.” U.S.

S ENTENCING G UIDELINES M ANUAL § 3D1.2 application note 2 commentary.

3 Clark consented to proceed before a magistrate through sentencing.

3 98-50817.opn guideline commentary. 2 Under Clark’s analysis, there was only a single victim; thus, the two counts

should have been “grouped” together.

The magistrate judge overruled the objection and sentenced Clark to concurrent twelve-month

p riso n terms, one year of supervised release, and a $1,000.00 fine. 3 Clark appealed to the district

court, which affirmed the imposed sentence. Clark timely filed a notice of appeal to this court.

D ISCUSSION

This court reviews factual findings made by a district court for sentencing purposes for clear

error and its legal application of the Guidelines de novo

. See United States v. Haas

, 171 F.3d 259,

268 (5 th Cir 1999).

The purpose of the Guidelines provisions for grouping offenses is “to limit the significance

of the formal charging decision and to prevent multiple punishment for substantially identical

offenses.” U.S. S ENTENCING G UIDELINES M ANUAL § 3D i ntroductory comment. In relevant part, the

Guidelines provide:

All counts invo lving substantially the s ame harm shall be grouped together into a single

Group. Counts involve substantially the same harm within the meaning of this rule:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected

by a common criminal objective or constituting part of a common scheme or plan.

Id. at § 3D1.2 (a), (b). Once grouped, the court applies the offense level applicable to each “group”4 In Ladner

, the Court held that the single disc harge o f a shotgun alleged by the petitoner

constituted only a single violation of § 254. In reaching this decision, the Court found that the statue

“may reasonably be read to mean that the single discharge would constitute ‘assault’ without regard

to the number of federal officers affected, as it may be read to mean that as many ‘assaults’ would

be committed as there were officers affected.” 358 U.S. at 177. Given t his ambiguity, the Court

applied a “policy of lenity” and adopted the less harsh meaning. See id

.

5 “When courts interpret statutes, the init ial inquiry is the language of th e st atute itself.”

Hightower v. Texas Hosp. Ass’n , 65 F.3d 443, 448 (5 th Cir. 1995).

4 98-50817.opn of counts. S ee id

. § 3D1.3. The defendant’s combined offense level “is determined by taking the

offense level applicable to the Group with the highest offense level and increasing that offense level

by the amount indicated” in a table created for that purpose. See id . § 3D1.4.

Clark argues to this c o urt, as he did below, that a Deputy United States Marshal is not a

“vict im” of the offense of resisting arrest; on the cont rary, the United States Government is the

vict im. To reach this conclusion, he encourages this court to look at the legislative intent behind 18

U.S.C. § 11 1. He also relies on L adner v. United States

, 358 U.S. 169 (1958), to argue that the

primary focus of the statute is the protecti on of federal authority and that the deputy marshals were

only “secondary” or “indirect” vict ims of the offense. 4 Since the government is the “same victim” and

the two resisting-arrest offenses are a part of the “same act or transaction” or “common scheme or

plan,” Clark reasons that the two counts should have been considered as a single group. See id

.

In United States v. Norris

, 159 F.3d 926, 927-31 (5 th Cir. 1998), cert denied sub nom. Norris

v. United States , — U.S.—, 119 S.Ct. 1153 (1999), this court addressed the meaning of the word

“vict im” for purposes of

§ 3D1.2 in a case involving a conviction on ten counts of receiving child

pornography in violation of 18 U.S.C. § 2252(a)(2) (1996). In addre ssing whether the children

depicted in the seized pornography were individual “victims,” this court l ooked to both the text of

the statute and to case authority predating the Guidelines. Following a similar path, 5 we look to both6 We disagree with the district court, which found L adner “interesting” but without “real

application” because it predates the Gui delines. The fact that a case predates the Sentencing

Guidelines does not obviate the need for further cons iderat io n o r analysis by the courts especially

where, as here, the case is instructive. See, e.g.

, W itte v. United States

, 515 U.S. 389, 395-403

(1995) (relying on pre-Guidelines cases governing sentencing discretion to permit inclusion of prior

criminal conduct in “relevant conduct” determination); United States v. Dunningan

, 507 U.S. 87, 92,

94-95 (1993) (relying o n pre-Guidelines case law and statutes to define “perjury” in Guidelines

commentary); United States v. Lister

, 53 F.3d 66, 69 (5 th Cir. 1995) (relying on pre-Guidelines case

law to interpret term “willful” in obstruction-of justice Guideline).

5 98-50817.opn the statute and to the Supreme Court’s decision in Ladner

. 6

In relevant part, the text of 18 U.S.C. § 111 reads:

(a) In general. —Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or int erferes with any

person designated in section 1114 of this title while engaged in or on account of the

performance of official duties. . . .

shall, where the acts in violation of this section constitute only simple assault, be fined

under this title or imprisoned not more than one year, or both, and in all other cases,

be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. §111(a)(1). This section, prohibiting assault against federal officers, was enacted both to

p ro t ect federal officers and federal functions. S ee U. S. v. Feola

, 420 U.S. 671 (1975). Deputy

United States Marshals are undoubtedly officers within the meaning of 18 U.S .C. § 111. S ee 18

U.S.C. § 1114 (1996) (including deputy marshal s as federal officers within the Department of

Justice). Examining only the plain meaning of the statute, we conclude that the officer is the object

of the verbs utilized in the statute. Accordingly, it is not o nly t he o fficer who is the victim of the

proscribed conduct but also, by extension, the United S t at es. On t his basis, we reject Clark’s

contention that the officers are indirect or secondary victims. Both deputy marshals were affected

in some measure by the protracted struggle to subdue and to arrest Clark.7 This statute is a predecessor to 18 U.S.C. § 111.

8 It is interesting to note that, after the Ladner decision was i ssued, Ladner’s co-defendant

Cameron filed his own § 2255 motion challenging similar consecutive sentences. S ee Cameron v.

United States

, 320 F.2d 16, 17 (5 th Cir. 1963). After an evidentiary hearing, the district court

concluded that five shots were fired by the two defendants and that “two separate and distinct assault

and batteries were committed upon two officers separately.” I d

. at 18. This court affirmed the

district court’s ruling that Cameron was not entitled to relief. See id

.

6 98-50817.opn Additionally, while Ladner is instructive in this case, it is far from controlling. In L adner

, the

Supreme Court addressed the issue whether a single shotgun blast which wounded two federal agents

could constitute two separate assaults under 18 U.S.C. § 254 (1940). 7 S ee Ladner

, 358 U.S. at 171.

In its disc ussio n, the Court acknowledged that a plausible argument could be made that the

Congressional aim of § 254 was “to prevent hindrance to the execution of official duty, and thus to

assure the carrying out of federal purposes and interests, and was not to protect federal officers

except as incident to that aim.” I d

. at 175-76. Yet the L adner court did not expressly hold that the

“victim” in federal resisting-arrest offenses is the federal government. S ee id

. at 178 (holding that

the wording of the statute and its legislative history is ambiguous). Indeed, t he sparse legislative

history rendered t he go vernment’s argument that the statute was designed to protect individual

officers equally plausible. S ee id

. at 174-7 5

. Given these reasonable alternative readings of the

statute, the Court applied the rule of lenity and adopted the less harsh meaning. 8 S ee id

. at 177, 178

(“This policy of lenity means that the Court will not interpret a federal criminal statute so as to

increase the penalty that it places on an individual when such an interpretation can be based on no

more than a guess as to what Congress intended.”)

Clark invites this court to follow a similar rationale; however, unlike the Court in Ladner

, we

are aided by subsequent case law in resolving this matter. In F eola

, the Supreme Court limit ed its9 Inasmuch as commentary explains the guidelines and provides concrete guidance as to how

the guidelines are to be applied in practice, see Stinson v. United States

, 508 U.S. 36, 44 (1993), we

find the background commentary to § 3D1.2 especially instructive:

A primary consideration in this section is whether the offenses involv e different

vict ims . For example, a defendant may stab three prison guards in a single escape

attem pt. Some wo uld argue that all counts arising out of a single transaction or

occurrence should be grouped together even when there are distinct victims. Although

such a proposal was considered, it was rejected because it probably would require a

departure in many cases in order to capture adequately the criminal behavior. Cases

invo lving injury to distinct vict ims are sufficiently comparable, whether or not the

injuries are inflic t ed in distinct transactions, so that each count should be treated

separately rather than grouped together.

U.S. S ENTENCING G UIDELINES M ANUAL § 3D1.2 background comment. Clark’s perceived conflict

between this background commentary and § 3D1.2 as promulgated by the Sentencing Commission

is without merit. We have already determined that the officers are direct, as opposed to secondary

or indirect, victims under 18 U.S.C. § 111. Moreover, the nature of Clark’s offense appears to fall

squarely within the illustrative example provided. There was no basis to group his offenses fo r

purposes of sentencing.

7 98-50817.opn holding in Ladner by concluding that, “although we adhere to the conclusion in L adner that either

view of legislative intent is ‘plausible,’ we think it plain that Congress intended to protect both federal

officers and federal functions, and that, indeed, furtherance of the one policy adv ances the other.”

Feola

, 420 U.S. at 679. In like manner, this court held in U nited States v. Varkonyi

, 645 F.2d 453,

456-57 (5 th Cir. 1981), that 18 U.S.C. § 111 was designed to protect both federal officers and federal

functions.

Based on our reading of these cases and the statute, we find that any federal officer whose

efforts to arrest a defendant are resisted in violation of 18 U.S.C. § 111 is a vict im. In accord with

the commentary to U.S.S.G. § 3D1.2, we find that each deputy marshal was a victim of the offense

as t he persons directly and most seriously affected by the struggle to subdue Clark. 9 S ee U.S

.8

98-50817.opn S ENTENCING G UIDELINES M ANUAL § 3D1.2 application note 2.

C ONCLUSION

We find that for purposes of an 18 U.S.C. § 111 violation, each federal officer is a separate

and distinc t victim of the offense. Accordingly, the sentencing court is not required to group the

offenses under U.S.S.G. § 3D1.2. We AFFIRM.