FILED

NOT FOR PUBLICATION

SEP 04 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10282

Plaintiff-Appellee, D.C. No. 1:14-cr-00252-LJO-BAM-1 v.

MATTHEW FARON BLAIR, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted August 14, 2018** San Francisco, California

Before: O’SCANNLAIN and BEA, Circuit Judges, and STEARNS,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation. Matthew Faron Blair appeals the sentence imposed following his guilty plea

to assaulting a federal employee resulting in bodily injury, in violation of 18

U.S.C. § 111. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Blair’s

sentence and remand for resentencing.

First, the district court plainly erred by applying U.S.S.G. § 2A2.2, the

guideline for aggravated assault. See United States v. Alvirez, 831 F.3d 1115, 1121

(9th Cir. 2016) (we review for plain error when a defendant does not object to the

application of a section of the Guidelines).

Blair was charged with and pleaded guilty to forcibly assaulting a federal

officer or employee resulting in bodily injury. 18 U.S.C. § 111(a)-(b). The

Statutory Index lists two applicable guidelines for § 111 convictions: U.S.S.G. §

2A2.4 (“Obstructing or Impeding Officers”) and U.S.S.G. § 2A2.2 (“Aggravated

Assault”). U.S.S.G. Statutory Index, App. A.

Section 2A2.4 applies to offenses that involve “physical contact” or the

possession of a weapon. U.S.S.G. § 2A2.4(b). This guideline contains a cross-

reference instructing the sentencing court to apply Section 2A2.2, rather than

Section 2A2.4, “[i]f the conduct constituted aggravated assault.” U.S.S.G. §

2A2.4(c).

2 Section 2A2.2 applies to “Aggravated Assault.” “Aggravated assault” is

defined as “a felonious assault that involved (A) a dangerous weapon with intent to

cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious

bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or

(D) an intent to commit another felony.” U.S.S.G. § 2A2.2, cmt. n.1 (emphasis

added). If the victim sustained an injury, the sentencing court is required to

determine which of the enhancements is appropriate based on the degree of the

injury. U.S.S.G. § 2A2.2(b)(3). Relevant here, if the assault resulted in bodily

injury, the defendant’s offense level is increased by three points, and if the assault

resulted in serious bodily injury, the defendant’s offense level is increased by five

points. Id.

Here, Blair did not use a dangerous weapon, did not engage in conduct

related to strangling or suffocating, and did not assault the victim with the intent to

commit another felony. Accordingly, Section 2A2.2 is applicable only if the

district court found that the assault resulted in serious bodily injury. However, the

district court found that the assault resulted only in bodily injury. The court made

that finding when it adopted the findings and recommendations in the presentence

report, enhancing Blair’s sentence by three points because of a determination that

the assault resulted in bodily injury. Consequently, the court found that the assault

3 resulted in bodily injury, not serious bodily injury. As a result, the cross-reference

in Section 2A2.4(c) was not triggered, and the district court committed reversible

procedural error when it applied Section 2A2.2.

Moreover, erroneously applying Section 2A2.2, rather than Section 2A2.4,

amounts to plain error. See United States v. Bonilla-Guizar, 729 F.3d 1179, 1188

(9th Cir. 2013) (holding that because the district judge “incorrectly calculate[d] the

Guidelines range, potentially resulting in the imposition of a greater sentence, the

error affect[ed] the defendant’s substantial rights and the fairness of the judicial

proceedings.” (internal quotation marks omitted)).

Second, the district court erred when it applied a six-level official victim

enhancement, pursuant to U.S.S.G. § 3A1.2(b). As explained above, the

sentencing court found that the assault resulted in bodily injury, and therefore

plainly erred by applying Section 2A2.2. Because the applicable offense guideline

is Section 2A2.4, the official victim adjustment does not apply here. See U.S.S.G.

§ 2A2.4, cmt. n.2 (“The base offense level incorporates the fact that the victim was

a governmental officer performing official duties. Therefore, do not apply § 3A1.2

(Official Victim) unless, pursuant to subsection (c), the offense level is determined

under § 2A2.2 (Aggravated Assault).”).

4 Blair’s sentence is VACATED. We REMAND for resentencing with the

proper application of the § 2A2.4 guideline. See United States v. Booker, 543 U.S.

220, 245 (2005); United States v. Marcia-Acosta, 780 F.3d 1244, 1256 (9th Cir.

2015) (“Although advisory after [Booker], the Guidelines remain the starting point

and the initial benchmark of any sentencing determination.” (internal quotation

marks omitted)).

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