* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral a rgument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. KEITH R. SEGIEN, Defendant-Appellant. No. 96-3355

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-CR-30004)

Submitted on the briefs. * Jackie N. Williams, United States Attorney, and T.G . Luedke, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appe llee. David J. Phillips, Federal Public Defender, and Mar ilyn M. Trubey, Assistant Federal Public Defender, Topeka, Kansas, for Defend ant-Appellant.

Before ANDERSON, TACHA and BRORBY , Circuit Judges.-2-

BRORBY , Circuit Judge.

Mr. Keith R. Segien was convicted of two counts of violating 18 U.S.C. § 111 (1994), which prohibits, inter alia , assaulting, resisting, or impeding certain federal officers or employees. He makes a number o f arguments on appeal regarding his convictions and the sentence imposed by the district court. We affirm.

On March 10, 1995, Ms. Kristy Rodgers, a Correction s Officer at the Leavenworth, Kansas, United States Penitentiary, wa s on duty at the B cell house metal detector, where she monitored inmates enterin g the cell house. At approximately 11:30 a.m., Mr. Segien, wearing what Officer Rodgers thought to be a UNICOR (prison industries) work uniform, sought entry to the cell house. Because UNICOR workers were not allowed into the ce ll house at that time of day, Officer Rodgers stopped and questioned Mr. Seg ien. Mr. Segien rapidly became verbally abusive and belligerent.

Officer Rodgers directed Mr. Segien to Center Hall, where their dispute continued, attracting the attention of Case ManagerRuss Purdue. Mr. Purdue approached and attempted to calm Mr. Segien. Howev er, Mr. Segien continued to1 Mr. Segien's testimony deviates somewhat from that of the prison

officers. He claimed Mr. Purdue initiated the phys ical confrontation by tackling him from behind, denied grabbing Mr. Purdue's genit als, and asserted any spit on Mr. Purdue was unintentional and merely incidental to his yelling at Mr. Purdue. He generally paints the course of events in a lightmore favorable to himself.

-3- respond with hostile language. Mr. Purdue then inf ormed Mr. Segien he was going to take him to the "Lieutenant's" office, and Officer Rodgers ordered him to turn around to be handcuffed. The situation furthe r escalated, and Mr. Segien began swinging his fists, hitting Mr. Purdue in the shoulder. Officer Rodgers and Mr. Purdue attempted to control Mr. Segien physical ly, and the three fell to the floor. During the struggle Mr. Segien grabbed Mr. Purdue's genitals and his weight landed upon one of Mr. Purdue's knees, injur ing it. Other officers entered the fray and assisted in restraining Mr. Segien.

Prison officers, including Mr. Purdue, then escorte d Mr. Segien to the Lieutenant's office, approximately fifty yards from the scene of the altercation. While waiting to enter the office and under the off icers' control, Mr. Segien spat on Mr. Purdue and threatened to kill him. In respo nse to further struggles by Mr. Segien, the officers placed him in leg irons and tr ansferred him to the special housing unit, a disciplinary holding facility, wher e he was placed in segregation. 1-4-

Apparently Mr. Segien remained perturbed. At appro ximately 2:00 p.m., about two hours after the earlier incidents, he rip ped off the sprinkler head in his cell, causing water to pour in. He then refused to obey officers' orders, necessitating they "go in and get him." During the ir doing so, Mr. Segien suffered a contusion on his left ear, which resulte d in some hearing loss.

As Mr. Purdue left the Lieutenant's office, his kne e gave out and he collapsed. Unable to walk, he was taken to a local hospital. Mr. Purdue, a former marine, testified he suffered intense pain from the injury to his knee. A doctor recommended arthroscopic surgery, but ultimately Mr . Purdue decided upon a treatment of physical therapy. The doctor told Mr. Purdue not to put any weight on his knee for two weeks, during which time he mov ed around through the use of crutches. His knee was immobilized in a soft cast for a time, and then he underwent approximately two months of physical ther apy. He was off work for just over two weeks.

Mr. Segien was indicted on three counts of violatin g 18 U.S.C. § 111(a)(1), by refusing to submit to restraints and swinging hi s fists in the direction of Officer Rodgers (Count I), by refusing to submit to restraints and grabbing Mr. Purdue by the testicles (Count II), and by spitting on Mr. Purdue and saying "I'll-5-

kill you" (Count III). A jury found Mr. Segien notguilty of Count I, but guilty of Counts II and III. The district court sentenced Mr . Segien to 105 months imprisonment on Count II, and 36 months imprisonment on Count III, running concurrently with the sentence imposed for Count II . The court also ordered Mr. Segien to serve three years supervised release for Count II upon his release from imprisonment, and, running concurrently, one year s upervised release for Count III. Additionally, the court ordered Mr. Segien to pay a $50 special assessment on each of Counts II and III.

Mr. Segien raises six issues on appeal: (1) the di strict court erred in applying the ten-year statutory maximum set forth i n § 111(b) rather than the three-year maximum term of incarceration of § 111(a ); (2) the district court erred in applying United States Sentencing Guideline § 2A 2.2 instead of § 2A2.4; (3) the district court sentenced him in excess of the s entencing guideline range on Count III; (4) Count III was multiplicious of CountII; (5) the district court made erroneous Fed. R. Evid. R. 404(b) evidentiary rulin gs; and (6) the district court erred in not departing downward when sentencing him . We address these issues in the order presented.

Mr. Segien first challenges the district court's us e of 18 U.S.C. § 111(b) to2Mr. Segien does not argue Mr. Purdue does not fal l within this category. -6- sentence him to more than three years imprisonment on Count II. 18 U.S.C. § 111 provides: Assaulting, resisting, or impeding certain officers or employees (a) In general. --Whoever-- (1) forcibly assaults, resists, opposes, impedes, int imidates, or interferes with any person designated in section 11 14 of this title while engaged in or on account of the perform ance of official duties;[ 2 ] or (2) forcibly assaults or intimidates any person who f ormerly served as a person designated in section 1114 on ac count of the performance of official duties during such pers on's term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or impris oned 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. (b) Enhanced penalty. --Whoever, in the commission of any acts described in subsection (a), uses a deadly or dange rous weapon ... or inflicts bodily injury, shall be fined under this t itle or imprisoned not more than ten years, or both. The district court premised the 105-month sentence for Count II upon its finding, arrived at during sentencing, that Mr. Segien had c aused "bodily injury" to Mr. Purdue, rendering the ten-year statutory maximum se t forth in § 111(b) applicable.-7-

Mr. Segien asserts § 111(b) creates a separate offe nse from that set forth in § 111(a), one which contains an additional element (use of a deadly weapon or bodily injury) that the prosecution must prove beyo nd a reasonable doubt. Because the issue of bodily injury was not presente d to the jury, he claims the judge could sentence him to no more than the three- year maximum period of imprisonment stated in § 111(a).

We note "the Due Process Clause protects [criminal defendants] against
conviction except upon proof beyond a reasonable doubt of eve ry fact necessary to constitute the crime with which he is charged." In re Winship , 397 U.S. 358, 364 (1970) (emphasis added). However, facts impact ing the severity of a
sentence need not be proven beyond a reasonable doubt, thou gh some constitutional limitations still adhere. Patterson v. New York, 432 U.S. 197, 210, 214 & n.15 (1977); see also id. at 207 (State need not "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affect ing the degree of culpability or the severity of the punishment"). Thus, the questi on at hand is whether "bodily injury" is an element of the crime, which must be p roven beyond a reasonable doubt, or whether it is simply a sentence enhanceme nt.-8-

We are guided by the Supreme Court case of McMillan v. Pennsylvania , 477 U.S. 79 (1986). In McMillan , the Court examined the constitutionality of a provision of Pennsylvania's Mandatory Minimum Sente ncing Act mandating judges sentence anyone convicted of certain enumerated felonies to no less that five years imprisonment if the judge found, by a pr eponderance of the evidence, that the person "visibly possessed a firearm" durin g the commission of the offense. Id. at 80-82. The defendant appellants contended visi ble possession of a firearm was an element of the offenses for which th ey were being sentenced and therefore must be proven beyond a reasonable doubt. Id. at 83-84. The Court, rebuffing the appellants' contention, noted the leg islature's definition of the elements of the offense is usually dispositive in d istinguishing between essential elements of an offense and mere sentencing factors. Id. at 85.

In the present case, Congress clearly intends subse ction (b) to be a sentencing enhancement provision. First and foremo st, when Congress separated § 111 into two subsections, it also explicitly titl ed the latter subsection "Enhanced penalty" in bold print. Pub. L. No. 100-690, 102 S tat. 4386. The first step in statutory interpretation is examination of the stat utory language, see Moskal v. United States , 498 U.S. 103, 108 (1990); Central Trust Co. v. Official Creditor's Comm. of Geiger Enters., Inc. , 454 U.S. 354, 359-60 (1982) (per curiam), and a-9-

more manifest statement of Congress' intent that su bsection (b) operate as a sentencing enhancement provision rather than a separate offense is difficult to imagine. Furthermore, the structure of § 111 impli es such a reading: subsection (b) is not self-standing; rather, it references com mission of the elements set forth in subsection (a) as the necessary predicate offens e. It simply serves to increase the penalty imposed on certain individuals who comm it the offense prohibited by § 111(a) in a fashion Congress has determined warrants additional sanction. This understanding of the statute comports with that of the Ninth Circuit, the only other circuit to analyze and distinguish § 111's el ements and sentencing enhancements, s ee United States v. Young , 936 F.2d 1050, 1054 (9th Cir. 1991) (holding § 111(b)'s reference to use of a deadly ordangerous weapon to be a sentencing factor, rather than an element of the of fense), and our recent interpretation of a similarly structured statute , see United States v. Valdez , 103 F.3d 95, 96-98 (10th Cir. 1996) (analyzing 8 U.S.C. § 1326(a) and (b) (1994) and finding the latter subsection to be a sentencing en hancement provision rather than a separate offense).

However, though we find Congress' intent to be self -evident, McMillan informs us we must nonetheless consider whether so applying the statute would be constitutional. See 477 U.S. at 86 (stating the Constitution requires "in certain-10-

limited circumstances ... facts not formally identi fied as elements of the offense charged" be treated as such and proven beyond a rea sonable doubt). The McMillan Court declined to precisely delineate this constit utional demarcation, see id. at 86, instead simply examining several factors. In finding the Pennsylvania act constitutional, the Court noted: the statute did not create any impermissible presumptions nor relieve the prosecut ion of its burden of proving guilt, id. at 87; it "neither alter[ed] the maximum penalty f or the crime committed nor create[d] a separate offense calling for a sepa rate penalty," id. at 87-88; and there was no indication the legislature structured the act to evade the "reasonable doubt" requirement, id. at 89-90.

We find no alarms raised when examining § 111(b) inlight of the first and third factors. It creates no presumptions whatsoev er, and is inapplicable unless the prosecution proves, beyond a reasonable doubt, a defendant's guilt of the offense pronounced in § 111(a). Nothing implies Co ngress drafted § 111 to improperly avoid the prosecution's reasonable doubtburden.

Mr. Segien makes much, however, of the McMillan Court's discussion of the second examined factor. There the Court noted the Pennsylvania act did not authorize sentences exceeding those allowable for t he underlying offense; it-11-

simply provided for a mandatory term of imprisonment within the maximum already established. 477 U.S. at 82, 87-88. Accor dingly, the Court had no fear the sentence enhancer was "a tail which wags the do g of the substantive offense," but did state that "if a finding of visible possess ion exposed [defendants] to greater or additional punishment" their claim visib le possession was an element of the punished offense, necessitating proof beyond a reasonable doubt, "would have at least more superficial appeal." Id. at 87-88. Relying on this discussion, Mr. Segien asserts that because, upon a finding of bodi ly injury, subsection (b) provides for a more than threefold increase in the possible period of imprisonment, such an injury is an offense element that must be proven beyond a reasonable doubt.

However, though we have "recognize[d] the strong ar guments that relevant conduct causing a dramatic increase in sentence oug ht to be subject to a higher standard of proof," United States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993), cert. denied, 511 U.S. 1020 (1994), due process does not mandat e proof of "bodily injury" beyond a reasonable doubt simply be cause such a finding leads to a seven year increase in the statutory maximum term of imprisonment for violation of § 111. Indeed, the McMillan Court, expressly failing to draw a constitutional "bright line," stated only that such a situation would provide3 Congress has since modified the statute and movedit to 18 U.S.C.

§ 924(e) (1994). See Phelps , 17 F.3d at 1337 n.4.

-12- superficialappeal to an argument the enhancing fact should be treated as an element. 477 U.S. at 87-88, 91 (emphasis added). Notably, none of the other concerns considered in McMillan are present in the instant case. Moreover, this circuit and others have held other statutory provis ions that far more increase a potential term of imprisonment upon the presence of particular facts, including the existence of bodily injury, to be sentencing en hancements rather than additional offense elements. For example, in United States v. Gregg , 803 F.2d 568, 569-70 (10th Cir. 1986) (reaffirmed by United States v. Phelps , 17 F.3d 1334, 1338 (10th Cir.), cert. denied, 513 U.S. 844 (1994)), cert. denied, 480 U.S. 920 (1987), we examined then § 1202(a) of the ArmedCareer Criminal Act of 1984, 3 which, upon a finding a defendant had three prior convictions for robbery or burglary, increased the sentence for being a fel on in possession of a firearm from a maximum of two years imprisonment to a minim um prison term of fifteen years. We nonetheless held § 1202(a) was merely a sentencing enhancement statute, rather than a new substantive offense. Id. ; accord, e.g. , United States v. McGatha , 891 F.2d 1520, 1527 (11th Cir.), cert. denied, 495 U.S. 938 (1990); United States v. Rumney , 867 F.2d 714, 717-19 (1st Cir.), cert. denied, 491 U.S. 908 (1989); United States v. Hawkins , 811 F.2d 210, 217-220 (3d Cir.), cert.-13-

denied, 484 U.S. 833 (1987). Similarly, we have repeated ly held proof of drug quantities resulting in vastly increased sentences via the Sentencing Guidelines or 21 U.S.C. § 841(b) (1994) need only be by a prepond erance of the evidence, even, in one instance, where the quantity attributed a de fendant increased his sentencing range from approximately twenty years to consecutiv e forty year terms. Washington , 11 F.3d at 1515-16; United States v. Silvers , 84 F.3d 1317, 1320-21 (10th Cir. 1996), cert. denied, 117 S. Ct. 742 (1997). See also Valdez , 103 F.3d at 97-98 (interpreting 8 U.S.C. § 1326(b), which mandates enhanced penalties for violators of § 1326(a) who were previously deportedfor aggravated felonies, to be a sentence enhancement provision even though it raised the two year maximum sentence set forth in subsection (a) to twenty year s); United States v. Oliver , 60 F.3d 547, 551-54 (9th Cir. 1995) (finding "serious bodily injury" and "death," which, if the result of a carjacking, increase the potential maximum sentence under the federal carjacking statute, 18 U.S.C. § 2 119 (1994), from fifteen years to twenty-five years or life imprisonment, to be se ntence enhancement factors rather than elements of the offense); Field v. Sheriff of Wake Co., N.C. , 831 F.2d 530 (4th Cir. 1987) (finding "serious injury" to be a sentence enhancement factor of North Carolina's driving while impaired statutes , N.C. Gen. Stat. §§ 20-138.1, 20-179, rather than an offense element).4Mr. Segien also contends § 111 is unconstitutiona lly vague. Because Mr.

Segien failed to present this argument before the d istrict court, we decline to consider it. See, e.g., Walker v. Mathers (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).

-14- Accordingly, we find § 111(b) refers to "bodily inj ury" as a sentencing enhancement factor rather than as an additional ele ment, and therefore it need not be presented to the jury or proven beyond a reasona ble doubt. See Valdez , 103 F.3d at 98 (sentence enhancement factors need not b e proven at trial). We therefore find no error in the district court's app lication of § 111(b)'s ten-year maximum period of imprisonment to Mr. Segien. 4

Mr. Segien next asserts the district court erred in applying United States Sentencing Guideline § 2A2.2 when sentencing him onCount II. He claims the district court should have applied U.S.S.G. § 2A2.4 , which has a base offense level of 6, rather than § 2A2.2, which has a base o ffense level of 15. When reviewing a district court's application of the gui delines, we "'accept the findings of fact of the district court unless they are clear ly erroneous and shall give due deference to the district court's application of th e guidelines to the facts.'" United States v. Talamante , 981 F.2d 1153, 1158 (10th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (1988)), cert. denied, 507 U.S. 1041 (1993).-15-

Section 2A2.4 is entitled "Obstructing or Impeding Officers" and at first glance is the appropriate guideline. See U.S.S.G. § 1B1.2(a) (requiring sentencing courts to apply the guideline section "m ost applicable to the offense of conviction"). However, § 2A2.4(c)(1) states "[i]f the conduct constituted aggravated assault, apply §2A2.2 (Aggravated Assaul t)." Application note 1 to § 2A2.2 defines aggravated assault as "a felonious assault that involved ... serious bodily injury." The guidelines define serious bodi ly injury as "injury involving extreme physical pain or the impairment of a functi on of a bodily member, organ, or mental faculty; or requiring medical interventio n such as surgery, hospitalization, or physical rehabilitation. As us ed in the guidelines, the definition of this term is somewhat different than that used in various statutes." U.S.S.G. § 1B1.1, comment. (n.1(j)). Thus, if Mr. Segien caused Mr. Purdue "serious bodily injury" as defined in the guideline s, the district court's use of § 2A2.2 was proper.

Mr. Segien contends Mr. Purdue did not suffer serio us bodily injury. However, we disagree. Mr. Purdue testified he suff ered extreme pain, and clearly suffered impaired function of a bodily member (his leg), which injury required hospitalization and physical rehabilitation. Given the deference we accord the district court's application of the guidelines to t he facts, we cannot say he did not-16-

suffer "serious bodily injury" as referenced in the guidelines. Accordingly, we affirm the district court's use of § 2A2.2. See generally United States v. Rue , 988 F.2d 94, 96 (10th Cir. 1993) (analyzing relationshi p between §§ 2A2.2 and 2A2.4).

Mr. Segien also contends the district court should have employed a higher standard of proof than "preponderance of the eviden ce" when deciding whether Mr. Purdue suffered serious bodily injury because that finding caused a substantial increase in his sentence. However, we have previously rejected such arguments, see Washington , 11 F.3d at 1516, and again today reiterate that a preponderance of the evidence is sufficient proof o f facts relevant to sentencing. See , e.g. , United States v. McKneely , 69 F.3d 1067, 1078 (10th Cir. 1995).

Mr. Segien's third claim of error asserts the distr ict court erred in sentencing him to thirty-six months incarceration o n Count III because that term unlawfully exceeds the guideline sentencing range. In sentencing Mr. Segien on Count III, the district court applied U.S.S.G. § 2A 2.4, which provides a base offense level of 6. The district court did not app ly any adjustments to this figure. Combining an offense level of 6 with Mr. Segien's c riminal history category of VI produces a sentencing range of twelve to eighteen m onths imprisonment.-17-

U.S.S.G., Ch. 5 Part A, Sentencing Table. Nonethel ess, the district court sentenced Mr. Segien to thirty-six months, along wi th one year of supervised release and a $50 special assessment. Mr. Segien c ontends the three-year sentence is unlawful. We review the legality of a sentence de novo , United States v. Price , 75 F.3d 1440, 1446 (10th Cir.), cert. denied, 116 S. Ct. 1889 (1996), and because Mr. Segien failed to object to the alleged sentencing error at trial, our review is for plain error. See Fed. R. Crim. P. 52(b).

The government contends that even if the district c ourt erred in sentencing Mr. Segien outside of the guideline range, that err or is harmless under the "concurrent sentence doctrine." Under that discret ionary doctrine, we may hold harmless an erroneous sentence premised on a valid conviction if such sentence runs concurrently to an equal or longer sentence ba sed upon another charge of an indictment, because the defendant suffers no actual prejudice from the erroneous
sentence. See United States v. Montoya , 676 F.2d 428, 432-33 (10th Cir.), cert. denied, 459 U.S. 856 (1982); United States v. Riebold, 557 F.2d 697, 705 (10th Cir.), cert. denied, 434 U.S. 860 (1977). We agree; the error is harm less.

Mr. Segien argues the concurrent sentence doctrine is inapplicable because the district court also fined him a $50 special ass essment on Count II, citing-18-

United States v. Sullivan , 919 F.2d 1403, 1429 n.42 (10th Cir. 1990). Howev er, he misunderstands our precedent. In Sullivan , the defendant challenged the conviction itself, see id. , and therefore, if successful, would not have had to pay the special assessment. Here, even if we reversed the district court, the conviction would still stand, albeit perhaps with areduced sentence, as would the special assessment. Thus, our application of the d octrine causes Mr. Segien no prejudice. Cf. Ray v. United States , 481 U.S. 736 (1987) (discussing applicability of concurrent sentence doctrine where special asses sments are charged).

Fourth, Mr. Segien charges Counts II and III are ba sed on the same conduct, a single, continuing episode of resistance , and are therefore multiplicious. He asserts Count III, the count pro ducing the lesser punishment, should be vacated. "Claims of multiplicity are subj ect to de novo review." United States v. Hutching , 75 F.3d 1453, 1460 (10th Cir.), cert. denied, 116 S. Ct. 2502 (1996).

"'[M]ultiplicity refers to multiple counts of an in dictment which cover the same criminal behavior.'" United States v. Fleming , 19 F.3d 1325, 1330 (10th Cir.) (quoting United States v. Dashney , 937 F.2d 532, 540 n.7 (10th Cir. 1991)), cert. denied, 513 U.S. 826 (1994). "Multiplicious counts are i mproper because-19-

they allow multiple punishments for a single crimin al offense." United States v. Wood, 57 F.3d 913, 919 (10th Cir. 1995). In evaluating multiple § 111 charges for multiplicity, we look to the "number of disting uishable acts of assault rather than the number of federal officers assaulted." United States v. Rivera Ramos , 856 F.2d 420, 422 (1st. Cir. 1988), cert. denied, 493 U.S. 837 (1989). The evidence must show "the actions and intent of [the] defendant constitute distinct successive criminal episodes, rather than two phase s of a single assault." Smith v. United States , 418 F.2d 1120, 1121 (D.C. Cir.), cert. denied, 396 U.S. 936 (1969).

It appears from the record the charges are based on two different events, separated in both time and location. Count II is p remised on Mr. Segien's initial struggle with Mr. Purdue. After this scuffle, pris on officers placed Mr. Segien under control and walked him to the Lieutenant's of fice, approximately fifty yards away. Then, when they arrived at the Lieutenant's office, Mr. Segien committed the actions upon which Count III rests. Though, ad mittedly, Mr. Segien's fight with Mr. Purdue and his later threat and expectorat ion were certainly related, other circuits have upheld multiple § 111 charges p remised on actions involving a single officer where the underlying conduct was equ ally connected, if not more

so. See United States v. Moreno , 630 F.2d 338 (5th Cir. 1980) (affirming the imposition of consecutive sentences of incarceratio n for two § 111 charges where-20-

the first charge was based upon assault with an aut omobile and the second upon assault with a machete which occurred immediately a fter the first); United States v. Farries , 459 F.2d 1057, 1064 (3d Cir.) (finding multiple § 111 charges, the first premised on hitting an officer in the head wi th a telephone and the second based on kicking the same officer when he fell to t he floor, not redundant), cert. denied, 409 U.S. 888 (1972) & 410 U.S. 912 (1973). Accor dingly, we affirm the district court's finding the charges are not multip licious.

Next, Mr. Segien asserts the district court twice e rred in evidentiary rulings. First, he claims the district court erred in allowing the government to introduce evidence of three past incidents of misco nduct, asserting Fed. R. Evid. 404(b) bars admission of that evidence. We review the district court's admission of evidence under Fed. R. Evid. 404(b) for an abuse of discretion. United States v. Olivo , 69 F.3d 1057, 1062 (10th Cir. 1995).

Rule 404(b) bars the admission of evidence of otherbad acts of a defendant if intended to prove the defendant's character and that he or she likely acted in conformity therewith on a particular occasion: "[e ]vidence of other crimes, wrongs, or acts is not admissible to prove the char acter of a person in order to show action in conformity therewith." Fed. R. Evid . 404(b). However, such-21-

evidence may be admissible for other purposes, "suc h as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ...." Id. Indeed, the rule is one of inclusion, rather than exclusion, unless the evidence is introduced for the impermiss ible purpose or is unduly prejudicial. United States v. Cuch , 842 F.2d 1173, 1176 (10th Cir. 1988).

In reviewing the district court's admission of the controverted evidence, we apply a four-part test examining whether: (1) the prosecution offered the evidence for a proper purpose under Rule 404(b); (2 ) the evidence is relevant under Fed. R. Evid. 401; (3) the evidence's probati ve value is not substantially outweighed by its potential for unfair prejudice un der Fed. R. Evid. 403; and (4) the district court, upon request, gave a proper ins truction limiting the jury's consideration of the evidence to the purpose for wh ich it was admitted. United States v. Wilson , 107 F.3d 774, 782 (10th Cir. 1997) (citing Huddleston v. United States , 485 U.S. 681, 691-91 (1988)). We require the gov ernment and the court to "precisely articulate the purpose of the proffered evidence." United States v. Birch , 39 F.3d 1089, 1093 (10th Cir. 1994) (citing United States v. Kendall , 766 F.2d 1426, 1436 (10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986)); Olivo , 69 F.3d at 1064-65.5 For example, in one case Mr. Segien allegedly spat upon a physician's

assistant, on another date he allegedly struck a pr ison officer in the chest, and he allegedly assaulted officers twice by throwing urin e on them.

-22- Here, Mr. Segien objects to the district court's ad mission of evidence of three previous instances of conflict between himsel f and prison officers, all of which occurred in 1994. In two of these incidents, Mr. Segien assaulted prison officers by spitting on them, once also threatening the recipient. In the third incident, Mr. Segien assaulted an officer by punchi ng him in the side. The district court refused the prosecution's proffer of evidence of fourteen other incidents, some of which also involved instances of spitting or physical assault. 5

The prosecution stated, and the court found, the ad mitted evidence showed intent and absence of mistake, two purposes not barred by Rule 404(b). During his testimony, Mr. Segien claimed he did not physic ally assault Mr. Purdue, explicitly denying "grabbing or squeezing" his geni tals, and stating that any contact with same was unintentional. He also claim ed any spit landing on Mr. Purdue was an unintentional result of yelling. Thu s, the evidence of two prior incidents where Mr. Segien spit on prison officers, and the time he physically assaulted an officer, was relevant to show Mr. Segi en's intent to, and absence of mistake in, physically assaulting and later spittin g on Mr. Purdue. See Hynes v.-23-

Coughlin , 79 F.3d 285, 290 (2d Cir. 1996) ("Where intent is in issue, evidence of other acts that bear on intent is properly admissib le under Rule 404(b). For example ... where [a prisoner] testifies that he st ruck a corrections officer reflexively and by accident, the trial court may pr operly admit evidence of the [prisoner's] prison disciplinary record of assaults to show the absence of mistake."). We do not believe the district court a bused its discretion in finding this evidence's probative value was not substantial ly outweighed by unfair prejudice, and we note the court gave a detailed an d proper limiting instruction to the jury. Accordingly, finding all of the requirem ents above cited satisfied, we cannot say the district court abused its discretion in admitting the controverted evidence, and therefore affirm its evidentiary ruli ng.

The second evidentiary ruling Mr. Segien challenges is the district court's refusal to allow him to introduce evidence of the s ubsequent incident in the special housing unit. He asserts the "beating" pri son guards inflicted on him there is relevant to his claim his earlier actions were i n self-defense, contending it is "illustrative of the conduct which [he] sought to p rotect himself from and was relevant to show his state of mind in defending him self from the officers in the earlier incident." Again, we review the district c ourt's evidentiary ruling for an abuse of discretion. Olivo , 69 F.3d at 1062.6Because we find the controverted evidence lacking in relevance to the

trial issues, we do not engage in the full four-part test earlier noted.

-24- The district court found the evidence Mr. Segien so ught to introduce "did not address the issue of self defense" because the special housing incident occurred subsequently to the events at issue at tri al and involved different prison officers. We agree. If Mr. Segien had offered obj ective evidence of a common plan of assault among Leavenworth prison officers, or of prior assaults he had endured at the hands of such officers, perhaps the subsequent incident may have been relevant. However, here Mr. Segien engaged in an unjustified "preemptive strike" upon Officer Rodgers and Mr. Purdue. The s ubsequent conflict between himself and different officers, arising from his ow n actions, simply cannot be used to justify his earlier conduct. Accordingly, we affirm the district court's refusal to admit evidence of the later incident. 6

Lastly, Mr. Segien appeals the district court's ref usal to grant a downward departure pursuant to 18 U.S.C. § 3553(b) (1994) an d U.S.S.G. § 5K2.0. These provisions authorize departures if "there exists anaggravating or mitigating circumstance of a kind, or to a degree, not adequat ely taken into consideration by the Sentencing Commission in formulating the guidel ines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.7We may, of course, review sentences that are ille gal or the result of

incorrect applications of the guidelines. Belt , 89 F.3d at 714. However, neither of these jurisdictional bases is applicable here.

-25- At sentencing, Mr. Segien asserted the incidents in the special holding unit and his resulting ear injury are such mitigating circum stances. The district court declined to grant the requested departure, stating: "The grounds on which the defendant seeks a downward departure are not part o f the conduct relevant in sentencing the defendant. The assault causing the defendant's alleged hearing loss involves an instance that is separate in time and distinct in nature and distinct as to the parties."

We have jurisdiction to review a district court's r efusal to grant a departure only if the district court erroneously believed it lacked authority to depart. 7 United States v. Belt , 89 F.3d 710, 714-15 (10th Cir. 1996). "'[U]nless the judge's language unambiguously states that the judge does n ot believe he has authority to downward depart, we will not review his decision.'" Id. at 715 (quoting United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994)). Because th e district court's statement does not so declare, we lack juri sdiction to review this issue.

We AFFIRM Mr. Segien's sentence.