U.S.S.G. § 3A1.2(c)(1) Enhancement Requires Proof of Intent to Instill Fear

United States v. Gonzales, 2019 WL 3403479 (10th Cir. July 29, 2019) (NM): In this circuit, the government now is required to prove the accused’s subjective intent to instill fear in an official when it seeks U.S.S.G. § 3A1.2(c)(1)’s six-level enhancement for creating a substantial risk of serious bodily injury to that official.

Local police were chasing down Gonzales when he lifted up his shirt, pulled out a gun and dropped it. Eventually, he was arrested and later pleaded guilty to possessing a firearm after a felony conviction. The officer chasing him testified that as the gun was falling he thought Gonzales was reaching forward to grab it. Gonzales argued the evidence demonstrated he had intentionally discarded the gun. Section 3A1.2(c)(1) allows for a 6 level enhancement when the accused assaults an officer during the course of the offense or immediate flight therefrom. The district court applied the enhancement because Gonzales did not present evidence of his intent and § 3A1.2 did not have an intent requirement.

The panel held the district court incorrectly interpreted § 3A1.2. It reviewed common law and case law definitions of assault. It found that assault, as used in § 3A1.2, requires proof of specific intent to instill fear. Thus, the district court could apply the enhancement only if the government established Gonzales had the specific intent to put the officer in fear of serious bodily injury. Because the court incorrectly concluded that subjective intent is immaterial in its analysis, the panel remanded the case for it to address the factual question of Gonzales’s intent.