Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 91 CR 830--George W. Lindberg, Judge.
Before CUMMINGS and FLAUM, Circuit Judges, and WALTER, District Judge. *fn*
Defendants Jefferey Sorensen and Dennis Karda pleaded guilty to assaulting federal officers and using a deadly and dangerous weapon in the commission of that offense, in violation of 18 U.S.C. secs. 2, 111. The district court sentenced Sorensen to 70 months imprisonment and three years supervised release, and sentenced Karda to 52 months incarceration and three years supervised release. On appeal, the defendants raise several challenges to their sentences. We vacate and remand for resentencing on one issue and affirm the others.
On August 1, 1991, shortly before midnight, Jefferey Sorensen, Dennis J. Karda, Keith J. Sliwa and Gregory Moritz, all members of the Simon City Royals street gang, decided to cause some trouble in Chicago. First, they confronted and assaulted an individual in a convenience store on the city's northwest side. They repeatedly struck the victim with their fists, sticks and rocks, and then stole his automobile and drove away. Later that evening, Sorensen and his cohorts crossed paths with two plainclothes Drug Enforcement Administration ("DEA") agents, Christopher Hacias and Keith Leoni, who were conducting an unrelated undercover operation. As the agents drove away from their surveillance through an alley in their unmarked car, a car (not related to the defendants) stopped at the mouth of the alley and blocked the DEA agents' progress. At the same time, the defendants, now on foot, approached the agents' car. Agent Hacias, who was in the passenger seat, yelled that he and his partner were police officers, and then warned again that they were federal agents. Undeterred, the defendants continued to advance toward the agents' vehicle, yelling "Get them, shoot them, fuck them up."
Karda then walked directly up to the passenger side of the car and through the open window struck a violent blow to Agent Hacias's face with a blunt instrument. This attack left Agent Hacias with a black eye and a bruised face, but no more severe injury. Fearing another attack, Agent Leoni temporarily drove away from the area, followed by the four screaming defendants. The agents, after making certain that Agent Hacias was not seriously injured, immediately returned to the alley to arrest their assailants. They saw three of the men on one side of the alley and the fourth, who they later identified as Sorensen, on the opposite side holding a large piece of cement. Cheered on and encouraged by his crew, Sorensen threw the block of concrete at the agents' car, shattering but not piercing the windshield. Within an hour, the Chicago Police Department arrested all four defendants.
Karda and Sorensen pleaded guilty in Cook County Circuit Court to charges of armed robbery and aggravated battery for their role in the attack at the convenience store and the theft of their victim's car. For this crime, each received a seven year term of imprisonment. With regard to the attack on the federal officers, a federal grand jury returned a three count-indictment against Sorensen, Karda, Sliwa and Moritz. Karda was admitted to pre-trial release on October 30, 1991, but was arrested three days later as he attempted to elude police in a high speed chase in another stolen vehicle. Accordingly, his pretrial release was revoked. For this activity, Karda was convicted on a state charge of aggravated possession of a stolen vehicle and sentenced to a term of five years to be served consecutive to his armed robbery sentence.
Both defendants also pleaded guilty to assaulting federal officers and using a deadly and dangerous weapon in the commission of that offense. 18 U.S.C. secs. 2, 111. The district court held an evidentiary hearing to determine the scope of the defendants' relevant conduct as well as the applicability of Sentencing Guideline enhancements for use of a dangerous weapon and assault of an official victim. For Karda, the court determined the base offense level at 15 for Aggravated Battery, enhanced the base by 4 points for the use of a dangerous weapon (a blunt instrument), 2 points for the victim's injury and 3 points for the victim's official status. The court reduced the offense level by 3 points for acceptance of responsibility and timely notification of an intention to plead, resulting in a total offense level of 21. Finding a criminal sentencing history of III, the court determined a range of 46 to 57 months and sentenced Karda to 52 months in prison, to be served consecutively to the completion of his undischarged state terms of incarceration.
For Sorensen, the court also set the base offense level at 15. The court enhanced the level by 4 for his use of a dangerous weapon (cement block), and 3 additional points for his knowledge of the victims' official status. The court then reduced Sorensen's base level by 3 points for his acceptance of responsibility and timeliness in pleading guilty, resulting in a total offense level of 19. It found a criminal history category of VI, resulting in a range of 63 to 78 months. Although the court could have departed upward because of Sorensen's extraordinarily serious criminal history, it did not and sentenced Sorensen to a term of 70 months imprisonment and 3 years supervised release, to be served consecutively to his undischarged state terms of incarceration. This appeal followed.
Sorensen and Karda argue that the district court erred in its sentencing determinations. First, both defendants contend that the court miscalculated their sentences by not applying the methodology of Application Note 3 to Policy Statement sec. 5G1.3 for the imposition of concurrent or consecutive terms of imprisonment. Second, Sorensen maintains that the district court improperly applied sec. 3A1.2(b) by enhancing his sentence three levels for assaulting a law enforcement officer. Third, Sorensen contends ...