NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 15, 2011
Decided August 3, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1248
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 10‐cr‐40004
DARRIEN DARVIN IRVING, Michael M. Mihm,
Defendant‐Appellant. Judge.
O R D E R
Darrien Irving was convicted of possessing a firearm despite his prior felony
conviction, see
18 U.S.C. § 922(g)(1), and sentenced to 48 months’ imprisonment. He appeals,
arguing that the district court misapplied a guidelines enhancement for assaulting a police
officer, see U.S.S.G. § 3A1.2(c)(1). Irving admits he scuffled with arresting officers but
contends that he did not threaten them with a “substantial risk of serious bodily injury,” as
the guideline requires. Because the record amply supports the district court’s application of
the official‐victim enhancement, we affirm.
Irving was previously convicted of aggravated unlawful use of a weapon, a felony.
On the night of his clash with arresting officers, Irving sold crack cocaine at a residence that
No. 11‐1248 Page 2
officers entered in search of a suspect. When Officer Franks began questioning that suspect,
Irving charged toward Officer Franks and attempted to flee.
As Officer Franks tried to restrain Irving, Irving escalated the physical altercation
outside the residence on an icy stoop, six concrete stairs off the ground. The two exchanged
blows at the top of stairway. A steel pipe banister ran along one side. A retaining wall
bordered the other. And concrete stairs descended from the stoop several feet down onto
icy pavement. Irving continued to wrestle Officer Franks until Irving eventually pushed
him off the edge of the stoop, so that Officer Franks collided onto the pavement, skinning
his shins.
Irving then brawled with several officers on the sidewalk below. He punched and
kicked Officer Franks again. He bit another officer’s finger. One officer tasered him. Another
struck him in the leg with a baton. Despite the taser and baton strikes, Irving continued to
fight until several other officers tackled him. After attempting to kick Officer Franks a final
time, Irving was finally subdued with pepper spray and placed into a patrol car. After the
confrontation, officers found Irving’s loaded pistol strewn on the sidewalk near the scene of
the brawl. There was no evidence, however, that Irving reached for his pistol or that officers
thought he was armed during the altercation.
Irving pleaded guilty to unlawful possession of a firearm, and the probation officer
recommended a total offense level of 21, and a criminal history category of IV, which
yielded a guidelines range of 57‐71 months’ imprisonment. In arriving at these calculations,
the probation officer added six levels because during the brawl Irving threatened arresting
officers with a “substantial risk of serious bodily injury,” see § 3A1.2(c)(1).
At sentencing, Irving contended that the official‐victim enhancement was
inapplicable. He claimed that his conduct did not threaten officers with serious injury. The
government disagreed, arguing that the stipulated facts supported the enhancement. The
parties also stipulated that Officer LaGrange, the one that Irving bit, received a tetanus shot,
antibiotics, and two stitches.
After reviewing the evidence, the district court overruled Irving’s objection and
imposed a six‐level enhancement under § 3A1.2(c)(1). It found that Irving’s fight with
Officer Franks on the stoop, “itself create[d] . . . a risk of substantial injury,” and that the
bite and violent confrontation further demonstrated “very violent” resistance that
endangered the officers. Although Irving concedes that during the clash he may have
possessed the loaded pistol later discovered on the ground, the district court did not
consider this possibility when applying § 3A1.2(c)(1). The court sentenced Irving to 48
month’s imprisonment, 9 months below the bottom of the guidelines range.
No. 11‐1248 Page 3
On appeal, Irving maintains that the district court erroneously applied the official‐
victim enhancement. Section 3A1.2(c)(1) applies when a defendant has (1) assaulted a police
officer during an offense or while fleeing; (2) created a substantial risk of serious bodily
harm to the arresting officer; and (3) knew or had reason to believe that the person assaulted
was an officer. See United States v. Robinson,
537 F.3d 798, 802 (7th Cir. 2008). Irving disputes
only the second requirement: whether the assault created a “substantial risk of serious
bodily injury.” U.S.S.G. § 3A1.2(c)(1). We review for clear error the district court’s finding
that the assault in this case created such a risk. See United States v. White,
443 F.3d 582, 592
(7th Cir. 2006).
Irving first contends that, historically, federal courts have applied § 3A1.2(c)(1) only
when a suspect either threatens an arresting officer with a dangerous weapon or assaults an
arresting officer with such ferocity that serious injury is actually inflicted. He argues that his
conduct is unlike either of these two scenarios and, hence, that the enhancement does not
apply.
As an empirical matter, Irving’s position is somewhat overstated. He is correct that
federal courts frequently apply the official‐victim enhancement when a suspect threatens
arresting officers with a dangerous weapon, e.g., firearms, knives, or automobiles. See
Robinson,
537 F.3d 798, 802 (7th Cir. 2008) (attempting to draw firearm); United States v.
White,
222 F.3d 363, 376 (7th Cir. 2000) (pointing firearm); see also United States v. Hampton,
628 F.3d 654, 661 (4th Cir. 2010) (reaching for loaded firearm); United States v. Hill,
583 F.3d
1075, 1078 (8th Cir. 2009) (repeatedly reaching for firearm); United States v. Zaragoza‐
Fernandez,
217 F.3d 31, 32‐33 (1st Cir. 2000) (swerving vehicle into officer). But less
frequently federal courts also apply the enhancement in circumstances where a suspect
wielded no dangerous weapon and where no serious injury was actually inflicted. See
United States v. Ashley,
141 F.3d 63, 68‐69 (2d Cir. 1998) (“The defendant need not have been
armed in order for his conduct to have posed such a risk; the lack of weapon does not given
an arrestee carte blanche to commit mayhem . . . .”).
More importantly, Irving is mistaken in suggesting that § 3A1.2(c)(1), by its terms,
applies only when the defendant wields a firearm or inflicts serious injury. The text of
§ 3A1.2(c)(1) does not support his interpretation. Rather the provision broadly applies to all
assaults of law enforcement officers during an offense or while fleeing that create “a
substantial risk of serious bodily injury.” U.S.S.G. § 3A1.2(c)(1); see Robinson,
537 F.3d at 802.
The focus is on the potential for danger. See Ashley,
141 F.3d at 68; U.S.S.G. § Application
Note 4(B) (enhancement applies to any “more serious injury that was risked, as well as
actual serious injury bodily injury (or more serious injury) if it occurs”).
No. 11‐1248 Page 4
Irving insists that any risk he posed was insubstantial. The record, however, amply
supports the district court’s finding that Irving’s violence substantially endangered
arresting officers with serious bodily injury. Irving wrestled Officer Franks and shoved him
off the icy stoop, forcing him to crash several feet below onto icy pavement. When falling,
Officer Franks could have struck his head, torso, back, or limbs on the steel pipe banister, on
the concrete stairs, on the retaining wall, or on the pavement below. Although Officer
Franks suffered only skinned shins, assaulting an arresting officer under these perilous
conditions risked serious injury from the many ways the officer could have collided into
unforgiving steel or concrete. See e.g. Foradori v. Harris,
523 F.3d 477, 482 (5th Cir. 2008); see
also Brenda J. Shields et. al., Epidemiology of Balcony Fall‐Related Injuries, United States 1990‐
2006, 29 AM. J. OF EMERGENCY MED. 174‐180 (2011) (“[B]alcony falls are an import cause of
injury in the United States.”). Moreover, Irving’s bite also risked serious bodily injury
because “a human bite is about the most dangerous bite that [one] can receive.” See e.g.,
United States v. Sturgis,
48 F.3d 784, 787 (4th Cir. 1995). The district court also reasonably
inferred that Irving battled officers violently, thereby substantially endangering them,
because it was necessary to deploy tasers, a baton, and pepper spray to subdue him.
AFFIRMED.
