United States v. Michael Anchrum ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-30013
Plaintiff-Appellee, D.C. No.
v.  3:06-CR-00085-
MICHAEL DION ANCHRUM, TMB
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted December 9, 2009*
Seattle, Washington
Filed December 30, 2009
Before: Robert R. Beezer, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
16847
16850 UNITED STATES v. ANCHRUM
COUNSEL
Michael D. Dieni, Esq., Assistant Federal Defender, Anchor-
age, Alaska, for defendant-appellant Anchrum.
Christine M. Thoreson, Esq., Special Assistant United States
Attorney, Anchorage, Alaska, for plaintiff-appellee United
States of America.
UNITED STATES v. ANCHRUM 16851
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Michael Anchrum (“Anchrum”)
appeals a jury conviction and sentence for one count of pos-
session of controlled substances with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c), two counts
of assault on federal officers with a deadly or dangerous
weapon in violation of 18 U.S.C. §§ 111(a)(1) and (b), and
one count of possession of firearms in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i).
Anchrum claims (1) that the jury instruction on the assault
counts erroneously required the jury to find that he used a
“motor vehicle” instead of a “deadly or dangerous weapon,”
(2) that the government’s use of United States Drug Enforce-
ment Administration (“DEA”) Special Agent Kenneth Solek
(“Agent Solek”) as both a lay and expert witness resulted in
testimony inconsistent with this court’s holding in United
States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007), as well
as Federal Rule of Evidence (“Rule”) 704(b), and (3) that the
district court erred in applying a six-level official victim
enhancement at sentencing under U.S. Sentencing Guidelines
(“U.S.S.G.”) § 3A1.2(c)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291, there
was no prejudicial error, and we affirm.
I
On October 26, 2006, a United States postal inspector
observed a suspicious parcel at the United States Post Office
in Anchorage, Alaska. The package was addressed to an “M.
Johnson” at an address on Old Seward Hwy in Anchorage,
Alaska. The return address, “Jason Johnson, 423 Market # 21,
Inglewood, CA 90302,” was fictional. The inspector noticed
several indices of drug trafficking, including the use of
Express Mail, handwritten labels, and a lack of telephone
16852 UNITED STATES v. ANCHRUM
numbers. Upon submission of the package to a drug detection
canine, the dog alerted.
Following the execution of a search warrant, agents from
the DEA found one-quarter kilogram of cocaine and one
ounce of heroin in the package. The package was legally
wired with a tracking device pursuant to a “beeper order,”
packed with a representative amount of cocaine and heroin,
resealed, and delivered by an undercover agent posing as a
postal delivery person the next day. Anchrum accepted the
package at the delivery address by producing a California
driver’s license bearing the name “Marcus Johnson.” He then
left the delivery address in a Ford Focus, followed by investi-
gators in unmarked police cars.
Anchrum soon observed the investigators following him.
He then began driving erratically—cutting across several
lanes of traffic and making an abrupt u-turn—in an attempt to
evade his pursuers. A chase ensued. DEA Agents and Task
Force Officers activated their emergency lights and sirens in
an attempt to stop Anchrum. At one point during the pursuit,
Agent Solek and his partner pursued Anchrum down a side
street that ended in a “gravel pit area.”
Agent Solek attempted to block Anchrum’s exit by parking
his vehicle at an angle on the side street. Anchrum turned his
vehicle around, aimed it at Agent Solek, and came to a stop.
Agent Solek exited his vehicle. He was wearing a black raid
vest with large yellow letters reading “Police.” Anchrum and
Agent Solek made eye contact. Agent Solek drew his sidearm,
began walking toward Anchrum’s vehicle, and yelled at
Anchrum to “get his hands up.” While the two men were
approximately twenty feet apart and still making eye contact,
Anchrum gripped his steering wheel and slammed on the gas
pedal, kicking up gravel and heading straight for Agent Solek.
Agent Solek testified, “I was in fear that I was about to get
run over.”1 He dove out of the way, trying to take cover
1
He also testified, “I had to make a decision on whether to try to inca-
pacitate the driver, shoot the driver, or get out of the way. In my experi-
UNITED STATES v. ANCHRUM 16853
behind the front of his vehicle, but was struck on his right
knee as Anchrum sped away.
A message was broadcast over police radio that Anchrum
had struck an officer with his vehicle. Despite being pursued
by an increasing number of DEA agents and local police offi-
cers, Anchrum continued to lead authorities on the high speed
chase.
Task Force Officer Gamache (“Officer Gamache”) picked
up the pursuit soon after Anchrum struck Agent Solek with
his vehicle. Officer Gamache eventually followed Anchrum
down yet another dead-end side street. Officer Gamache
stopped his police car—with red and blue lights flashing and
siren blaring—in Anchrum’s path, trying to block his exit
from the side street. Anchrum accelerated his Ford Focus and
hit Officer Gamache’s police car. Anchrum’s vehicle was
traveling with enough speed to cause his car to go into a
“spinout.” When Anchrum’s vehicle came to a stop, he exited
and fled on foot. He was apprehended after a short foot pur-
suit through an industrial park.
Anchrum’s person and vehicle were searched. The searches
produced two California driver’s licenses, one bearing his true
name of Michael Dion Anchrum, and one bearing the false
name of Marcus Johnson. Agents found a loaded .45 caliber-
semi automatic pistol on the driver’s side floorboard of
Anchrum’s vehicle and a loaded .357 magnum revolver under
the driver’s seat. Agents also found a digital scale, the pack-
age containing the representative sample of the cocaine and
heroin, as well as the tracking device.
ence and what I believed was going to happen is that if I were to shoot
the driver, then there’s no guarantees that the vehicle was going to stop
anyhow and I’d still get struck, except I would get struck head-on as
opposed to you know, dead center, as opposed to maybe taking a glancing
blow. So therefore I decided to try to jump out of the way and—and con-
tinue on that way, which seemed to be the best choice.”
16854 UNITED STATES v. ANCHRUM
At trial, Agent Solek testified as both a percipient and
expert witness. The district court separated the testimony into
a first “phase,” consisting of Agent Solek’s percipient witness
testimony regarding the investigation and arrest of Anchrum,
and a second “phase,” consisting of Agent Solek’s expert
qualifications as a drug investigator and his opinions that drug
dealers usually possess guns for protection, use scales to
weigh drugs, and rent cars to avoid detection. A sidebar con-
ference separated the two phases of the agent’s testimony.
Following the end of the percipient witness portion of testi-
mony and the sidebar, the prosecutor transitioned into the
expert phase by stating “Agent Solek, I’d like to shift gears
here a little bit and talk about some of your education, profes-
sional training, and law enforcement experience.”
The jury convicted Anchrum on all counts. At sentencing,
the district court applied a six-level enhancement based on the
fact that Agent Solek was an “Official Victim” under
U.S.S.G. § 3A1.2. Anchrum timely appealed.
II
A jury instruction that erroneously misstates or omits an
element of the offense is a non-structural constitutional error
subject to harmless error review. See United States v. Smith,
561 F.3d 934, 938 (9th Cir. 2009) (en banc). “A defendant is
. . . deprived of constitutional due process when the jury is not
properly instructed that the government bears the burden of
proving guilt beyond a reasonable doubt on each element of
the crime.” Id. (citing Middleton v. McNeil, 541 U.S. 433, 437
(2004)).
In relevant part, 18 U.S.C. § 111(a)(1) provides, “Whoever
. . . forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this
title while engaged in or on account of the performance of
official duties . . . shall . . . where such acts involve physical
contact with the victim of that assault . . . be . . . imprisoned
UNITED STATES v. ANCHRUM 16855
not more than 8 years . . . .” However, 18 U.S.C. § 111(b)
provides, “Whoever, in the commission of any acts described
in subsection (a), uses a deadly or dangerous weapon (includ-
ing 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 . . . imprisoned not more than 20 years . . . .”
[1] An element of assault on a federal officer with a deadly
or dangerous weapon is therefore the use of a “deadly or dan-
gerous weapon.” Id. At the time of Anchrum’s trial, the rele-
vant Ninth Circuit Model Criminal Jury Instruction for
Assault on a Federal Officer with a Deadly or Dangerous
Weapon in violation of 18 U.S.C. § 111(b) read:
In order for the defendant to be found guilty of that
charge, the government must prove each of the fol-
lowing elements beyond a reasonable doubt:
First, the defendant intentionally used force in [[as-
saulting] [resisting] [intimidating] [interfering with]]
[[________]]; and
Second, the defendant did so while [________] was
engaged in, or on account of [his] [her] official
duties [; and]
[Third, the defendant [used a [________]] [inflicted
bodily injury]].
[A [________] is a dangerous or deadly weapon if it
is used in a way that is capable of causing death or
serious bodily injury.]
9th Cir. Crim. Jury Instr. 8.2 (2003). Accordingly, the district
court gave the following instruction:
In order for the defendant to be found guilty of that
charge, the government must prove each of the fol-
lowing elements beyond a reasonable doubt:
16856 UNITED STATES v. ANCHRUM
First, the defendant intentionally used force in
assaulting, resisting, intimidating or interfering with
Drug Enforcement Agent Kenneth Solek;
Second, the defendant did so while Agent Solek was
engaged in official duties;
Third, the defendant used a motor vehicle.
A motor vehicle is a dangerous or deadly weapon if
it is used in a way that is capable of causing death
or serious bodily injury.
[2] Anchrum aptly argues that this instruction was deficient
because it relieved the government of its burden to prove that
the defendant used a “dangerous or deadly weapon.” Under
this instruction, in order to find Anchrum guilty the jury was
not required to find that his motor vehicle was used in a way
that was capable of causing death or serious bodily injury, it
was only required to find that Anchrum used a motor vehicle.
The instruction therefore erroneously omitted an element of
the crime.
In light of this court’s en banc decision in Smith, 561 F.3d
at 938, the government concedes the instruction was errone-
ous. In Smith, the defendant was charged with assault with a
dangerous weapon. Id. at 937. The district court in that case
gave a jury instruction based on Ninth Circuit Model Criminal
Jury Instruction 8.5. Id. That instruction included a third ele-
ment similar to the one at issue in this case: “Third, the defen-
dant used a [weapon].” Id. We found that the district court’s
instruction, “the defendant used a prison-made knife,”
deprived the government of its burden to prove the defendant
used a dangerous weapon.2 Nonetheless, we held the error
harmless. Id. at 939.
2
The third elements of both model jury instructions have since been
amended to resolve the ambiguity. See 9th Cir. Crim. Jury Instr. 8.5
(2008). The third element of that instruction now reads, “[t]hird, the defen-
dant used a dangerous weapon.” Smith, 561 F.3d at 937 n.2 (quoting 9th
Cir. Model Crim. Jury Instr. 8.5 (2008)) (alteration and emphasis in origi-
nal).
UNITED STATES v. ANCHRUM 16857
A jury instruction error is harmless if it is “ ‘clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’ ” United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2001)
(quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
[3] The model jury instruction at issue in this case provides
that an object is “a dangerous or deadly weapon” under 18
U.S.C. § 111(b) “if it is used in a way that is capable of caus-
ing death or serious bodily injury.” 9th Cir. Crim. Jury Instr.
8.2. “Courts interpreting § 111 have adopted the commonly
accepted definition of a deadly or dangerous weapon . . . : any
object which, as used or attempted to be used, may endanger
the life of or inflict great bodily harm on a person.” United
States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir. 1990) (inter-
nal quotation marks omitted).
[4] That a car, truck, automobile, or vehicle can constitute
a dangerous or deadly weapon under 18 U.S.C. § 111(b) is not
a new holding. While here we review for the first time an
erroneous jury instruction omitting that element, we have pre-
viously upheld convictions for sufficient evidence where the
dangerous or deadly weapons used were vehicles.
In United States v. Aceves-Rosales, 832 F.2d 1155, 1156
(9th Cir. 1987), we held that sufficient evidence supported a
defendant’s conviction for assault on a federal officer with a
deadly or dangerous weapon under § 111(b) where an officer
reached into the defendant’s car to remove the keys from the
ignition, the defendant stepped on the accelerator, the officer
ran alongside the automobile for “about seventy-five yards,”
and eventually “let go and rolled away from the car, sustain-
ing minor injuries.” While we were not applying harmless
error review, we did observe, “It is indisputable that an auto-
mobile can inflict deadly force on a person and that it can be
used as a deadly weapon.” Id. at 1157.
In Galvan v. United States, 318 F.2d 711, 712 (9th Cir.
1963), we held sufficient evidence supported a defendant’s
16858 UNITED STATES v. ANCHRUM
conviction for “assaulting a narcotics officer with a deadly
and dangerous weapon, to wit: a Cadillac automobile.” In that
case, there was “little doubt that the officer had to move very
quickly and that the car would have ‘run him down’ if he
hadn’t jumped.” Id. While we did not specifically analyze the
deadly or dangerous weapon element, by upholding the con-
viction we accepted the finding that the automobile consti-
tuted a deadly or dangerous weapon. Id.Similarly, in United States v. Sanchez, 914 F.2d at 1359,
we upheld a conviction under § 111(b) where the deadly or
dangerous weapon used was an automobile despite conflicting
jury instructions as to the necessary level of intent. There, the
defendant “drove straight at” the officer with his automobile.
Id. at 1357. The officer dived under his police car then “felt
an impact and felt rocks and dirt hitting him in the back.” Id.
The officer subsequently radioed for assistance and informed
his fellow officers that he had been “rammed.” Id. Again,
while we did not expressly hold that an automobile may con-
stitute a deadly or dangerous weapon, that finding was neces-
sary to sustain the conviction. See id.
Our en banc panel in Smith recently explained that under 18
U.S.C. § 113, “dangerous weapons” constitute both inherently
dangerous weapons—or dangerous weapons per se—such as
“guns, knives, and the like,” 561 F.3d at 939 (internal quota-
tion marks and citation omitted), as well as other seemingly
innocuous objects that may become dangerous or deadly
given “the manner in which the[y] . . . [are] used,” id. (quot-
ing United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir.
1982) (per curiam) (holding a “belt” and a “shoe” to be dan-
gerous weapons)).
We find this distinction equally applicable to the definition
of a “deadly or dangerous weapon” under 18 U.S.C. § 111(b).
We have noted that under § 111(b), a deadly or dangerous
weapon is “any object which, as used or attempted to be used,
may endanger the life of or inflict great bodily harm on a per-
UNITED STATES v. ANCHRUM 16859
son.” Sanchez, 914 F.2d at 1358. This definition implicitly
encompasses both inherently dangerous weapons—such as
guns or knives—and seemingly innocuous objects—such as
belts and shoes used in a dangerous manner.
[5] As stated in the applicable model jury instruction, for
objects that fall within the latter category to be considered
deadly or dangerous weapons under § 111(b), they must be
“used in a way that is capable of causing death or serious bod-
ily injury.” 9th Cir. Crim. Jury Instr. 8.2. This definition is
consistent with our caselaw upholding convictions premising
liability on the assumption that an automobile may constitute
a deadly or dangerous weapon under § 111(b).
A jury instruction error is harmless where there is “over-
whelming and uncontradicted evidence at trial” establishing
the omitted element beyond a reasonable doubt. United States
v. Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007). Here,
Anchrum twice tried to run down officers with his car. First,
Anchrum aimed his vehicle at Agent Solek and came to a
stop. Agent Solek exited his vehicle wearing a black raid vest
with large yellow letters reading “Police,” drew his sidearm,
began walking toward Anchrum’s vehicle, and yelled at
Anchrum to “get his hands up.” Then, Anchrum gripped his
steering wheel and slammed on the gas pedal, heading straight
for Agent Solek and causing him to “fear that [he] was about
to get run over.” Despite Agent Solek’s attempt to dive out of
the way, Anchrum nonetheless hit him on the knee as the car
passed by. Second, after Officer Gamache trapped Anchrum
by stopping his police car with red and blue lights flashing on
a side street, Anchrum attempted to escape by aiming his
vehicle at Officer Gamache’s police car, accelerating, and hit-
ting the police car—causing Anchrum’s car to go into a “spin-
out.”
[6] There is no question that Anchrum used his vehicle in
a way that “may endanger the life of or inflict great bodily
harm on a person.” Sanchez, 914 F.2d at 1358. We have noted
16860 UNITED STATES v. ANCHRUM
that it “is indisputable that an automobile can inflict deadly
force on a person and that it can be used as a deadly weapon.”
Aceves-Rosales, 832 F.2d at 1157. There is no doubt that
when Anchrum intentionally attempted to run down Agent
Solek and actually impacted Officer Gamache’s car he was
endangering their lives as well as using his vehicle in a way
that could inflict great bodily harm.
[7] As a result, the evidence here supports the finding that
it is “clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.”
Gracidas-Ulibarry, 231 F.3d at 1197 (citation omitted).
Accordingly, we hold the district court’s erroneous jury
instruction omitting the dangerous or deadly weapon element
was harmless error that did not affect Anchrum’s substantial
rights. See 28 U.S.C. § 2111.
III
Anchrum argues the district court abused its discretion in
allowing Agent Solek to testify as both a percipient and expert
witness contrary to our opinion in Freeman, 498 F.3d at 904,
and that Agent Solek violated Rule 704(b) by opining as to
Anchrum’s requisite mental state during the expert phase of
his testimony. Both arguments are without merit.
A
In Freeman we warned of the dangers inherent in permit-
ting investigating police officers—in that case a “case agent”
—to testify as both percipient and expert witnesses and we
highlighted four “concerns” with the practice. 498 F.3d at
904. First, we expressed concern “that a case agent who testi-
fies as an expert receives ‘unmerited credibility’ for lay testi-
mony.” Id. (quoting United States v. Dukagjini, 326 F.3d 45,
53 (2d Cir. 2003). Second, we noted that “expert testimony by
a fact witness or case agent can inhibit cross-examination”
because a “failed effort to impeach the witness as expert may
UNITED STATES v. ANCHRUM 16861
effectively enhance his credibility as a fact witness.” Id.(internal quotation marks omitted). Third, “there is an
increased danger that the expert testimony will stray from
applying reliable methodology and convey to the jury the wit-
ness’s sweeping conclusions about appellants’ activities.” Id.(internal quotation marks omitted). Fourth, there is a danger
that some “jurors will find it difficult to discern whether the
witness is relying properly on his general experience and reli-
able methodology, or improperly on what he has learned of
the case.” Id.[8] Despite these concerns, however, we reasoned that “the
use of case agents as both expert and lay witnesses is not so
inherently suspect that it should be categorically prohibited.”
Id. at 904. As a result, we advised district courts that “[i]f
jurors are aware of the witness’s dual roles, the risk of error
in these types of trials is reduced.” Id. Finally, we concluded
that the district court in that case had not sufficiently sepa-
rated the witness’s dual roles and that there was a “blurred
distinction” between the detective’s expert and lay testimony.
Id.
Here, in careful consideration of our decision in Freeman,
498 F.3d at 904, the district court clearly separated Agent
Solek’s testimony into a first “phase” consisting of his percip-
ient observations, and a second “phase” consisting of his cre-
dentials in the field of drug trafficking and expert testimony
regarding the modus operandi of drug traffickers.
Defense counsel raised the Freeman issue with the court
before Agent Solek testified. As a result, the district court
agreed to—and actually did—separate the testimony into two
distinct phases and gave the jury an instruction that they were
the ultimate finders of fact. Defense counsel even conceded,
“Judge, if, as my colleague had indicated earlier, she was
going to do . . . the fact section, then say, now I’m going to
ask you expert questions, then I think that would protect
16862 UNITED STATES v. ANCHRUM
everything . . . .” The prosecutor then developed lay testimony
before proceeding to Agent Solek’s expert testimony.
[9] When the district court divided Agent Solek’s testimony
into two separate phases it avoided blurring the distinction
between Agent Solek’s distinct role as a lay witness and his
role as an expert witness. Not only were these two phases sep-
arated temporally by a sidebar, but when the prosecutor began
the expert phase, she stated, “Agent Solek, I’d like to shift
gears here a little bit and talk about some of your education,
professional training, and law enforcement experience.”
[10] Accordingly, we find that the concerns we expressed
in Freeman were avoided here and the district court did not
exceed the permissible bounds of its discretion in admitting
Agent Solek’s testimony.
B
[11] Nor did Agent Solek opine as to Anchrum’s requisite
mental state in the expert portion of his testimony in violation
of Rule 704(b). Under Rule 704(b), an “expert witness may
not state an opinion as to whether the defendant did or did not
have the mental state or condition constituting an element of
the crime or a defense thereto. An expert witness is not per-
mitted to offer a direct opinion on the defendant’s guilt or
innocence.” Freeman, 498 F.3d at 906 (citing United States
v. Fleishman, 684 F.2d 1329, 1335 -36 (9th Cir. 1982).
18 U.S.C. § 924(c)(1)(A) provides, “any person who, dur-
ing and in relation to any . . . drug trafficking crime . . . uses
or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm,” shall be subject to an additional sen-
tence. Anchrum maintains that Agent Solek’s expert testi-
mony opined as to Anchrum’s intent to possess the firearms
“during and in relation to” or “in furtherance of” his drug traf-
ficking crime. Id.UNITED STATES v. ANCHRUM 16863
[12] Law enforcement experts may “ ‘testify as to the gen-
eral practices of criminals to establish the defendants’ modus
operandi’ which ‘helps the jury to understand complex crimi-
nal activities, and alerts it to the possibility that combinations
of seemingly innocuous events may indicate criminal behav-
ior.’ ” Freeman, 498 F.3d at 906 (quoting United States v.
Valencia-Amezcua, 278 F.3d 901, 908 -09 (9th Cir. 2002)).
Here, Agent Solek described the various reasons a hypo-
thetical drug dealer would posses a firearm. He gave the
description in the second person point of view—so that it was
told through the addressee’s point of view—using words such
as “you,” “you’re,” and “your” instead of “he,” “he’s,” and
“his.” Specifically, he stated,
Well—if you’re driving around with a loaded
weapon and you have narcotics in your car, then
again, we’re going back to what are you using the
weapon for, why is it there. It’s got to be there for
a purpose. You’re either going to use it, number 1,
if—if you get stopped, to try to get away, which
would be bad for us, for law enforcement. Number
two, you’re going to do a drug deal and you’re wor-
ried that the person that you’re giving your drugs to
is going to—rip you off, to try to steal your drugs
instead of paying you money. Or, number 3, you do
a successful drug deal and you’re worried that some-
body else that knows that you went over there and
you just made $5,000 is going to come up and try to
take your $5,000. So you have it for your protection,
or you have it to—to get away with again. You
know, the number 1—the bad reason.
This testimony does not reference Anchrum. Nevertheless,
Anchrum argues that the form of the question, which refer-
enced “this car,” called for an opinion as to his particular
mental state. The question, however, ended with the call
“What’s the significance of that to you in your experience?”
16864 UNITED STATES v. ANCHRUM
This question does not call for any discussion of Anchrum’s
mental state, but rather a discussion of the modus operandi of
the drug dealers that Agent Solek had encountered “in [his]
experience.” As in Freeman, Agent Solek “offered no opinion
as to whether [Anchrum] possessed the requisite criminal
intent” to possess firearms, “but instead described a common
practice of those who do have such intent.” 498 F.3d at 906
-07.
[13] As a result, we find that his testimony easily fits within
the permissible kind of expert testimony discussed in Free-
man, and that Agent Solek did not state an opinion “as to
whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged.” Fed.
R. Evid. 704(b).
IV
Finally, the district court did not abuse its discretion in
applying a six-level official victim sentencing enhancement
under U.S.S.G. § 3A1.2 or fail to make the necessary findings
of fact when Anchrum objected to the enhancement in the
Presentence Report (“PSR”). U.S.S.G. § 3A1.2(c)(1) pro-
vides, “If, in a manner creating a substantial risk of serious
bodily injury, the defendant . . . knowing or having reasonable
cause to believe that a person was a law enforcement officer,
assaulted such officer during the course of the offense or
immediate flight therefrom . . . increase by 6 levels.”
[14] “The ‘Official Victim’ enhancement does not require
that a defendant harbor any particular ill-will towards federal
agents. It is enough that a defendant knows that the victim is
a federal officer and then assaults the officer in an attempt to
get away or evade capture.” United States v. Rivera-Alonzo,
584 F.3d 829, 836 (9th Cir. 2009) (holding defendant’s sen-
tence properly enhanced under U.S.S.G. § 3A1.2 where the
defendant saw a Border Patrol agent in uniform, attempted to
run away, eventually dove at the agent’s feet, tackled him,
UNITED STATES v. ANCHRUM 16865
and took the agent’s gun before being subdued by another
agent). “The key factors are knowledge of the victim’s official
status and assaultive conduct motivated by that knowledge.”
Id.
As required by Federal Rule of Criminal Procedure 32, the
district court expressly addressed—and overruled—
Anchrum’s objection at sentencing. The district court took
account of Anchrum’s objection, then stated, “I have
reviewed the arguments and I agree that that six-level
enhancement is appropriate in regard to the count of convic-
tion as it relates to Agent Solek. So I will apply that six-level
enhancement.” Immediately thereafter, the court asked,
“Now, I think I have covered the outstanding objections as I
understood them to determinations in the PSR. Are—is there
anything else that I’ve missed? Does anybody else have any-
thing they want to raise at this point before we move on to
3553 factors?” The prosecutor responded, “Not on behalf of
the government, Your Honor.” Defense counsel then stated, “I
think you’ve responded to them as well, Judge.”
[15] Furthermore, throughout sentencing the district court
recited the testimony at trial and referenced Anchrum’s act of
intentionally driving his vehicle at—and striking—Agent
Solek after he exited his police car in a vest clearly marked
“Police.” These facts easily support the official victim
enhancement under U.S.S.G. § 3A1.2(c)(1). See Rivera-
Alonzo, 584 F.3d at 836.
V
Accordingly, Anchrum’s conviction and sentence are
AFFIRMED.