United States of America v. Karvis Carter

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1335
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ARVIS C ARTER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 705-1 — Rebecca R. Pallmeyer, Judge.
____________________
A RGUED J ULY 6, 2016 — DECIDED J ULY 19, 2016
____________________
Before POSNER , S YKES, and HAMILTON , Circuit Judges.
S YKES, Circuit Judge. Karvis Carter pleaded guilty to pos-
sessing cocaine with the intent to distribute it. See 21 U.S.C.
§ 841(a)(1). Over Carter’s objection the sentencing judge
applied a six-level upward adjustment to his total offense
level under the Sentencing Guidelines based on a finding
that he had assaulted police officers while attempting to flee
an arrest. See U.S.S.G. § 3A1.2(c)(1). On appeal Carter renews
his objection to the application of § 3A1.2(c)(1), arguing that

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2 No. 15-1335
the judge failed to make a specific finding about whether his
conduct during the struggle was serious enough to pose “a
substantial risk of serious bodily injury” to the officers, as
required by § 3A1.2(c)(1). We affirm.
I. Background
Police officers from the Chicago Police Department’s
gang-investigations section observed Carter purchase co-
caine from a known drug dealer on a residential street on the
west side of Chicago. As Carter drove away from the ex-
change, Officers Jason Brown and George Lopez followed
him in an unmarked squad car. As soon as the officers
pulled behind Carter, he sped up. The officers activated their
emergency lights and siren, and a high-speed chase ensued.
Carter wove through traffic, blew through stop signs, and
clocked 80 miles per hour speeding through residential
streets and alleyways. He narrowly missed hitting a child on
a bicycle and drove over a sidewalk scattering pedestrians.
The chase eventually halted when Carter lost control of the
car and slammed into a curb. He attempted to flee on foot
but was caught by the officers. A brief struggle ensued
before the officers wrestled Carter to the ground and hand-
cuffed him. Both officers sustained minor injuries during the
scuffle.
At sentencing Carter and Officer Brown told different
versions of the struggle. According to Officer Brown, Carter
hit Officer Lopez on the top of his head, knocking him to the
ground, and then turned and punched him (Officer Brown)
in the jaw. Both officers then wrestled Carter to the ground.
From a sheath on his waist, Carter pulled out a folding knife.
The officers knocked the knife out of his hand before he
could unfold it. Only then, said Officer Brown, were they

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No. 15-1335 3
able to put Carter in handcuffs. Carter conceded only that he
struggled with the officers and that he had a knife on his
belt. He denied hitting the officers or unsheathing the knife.
Based on a review of the police reports and interviews
with both Carter’s attorney and Officer Brown, the probation
officer credited Brown’s version of events and concluded
that both the punches and the unsheathing of the knife
created a substantial risk of serious bodily injury to the
officers. Carter’s presentence report thus recommended a
six-level upward adjustment under § 3A1.2(c)(1). Carter
objected.
After hearing the opposing testimony from Carter and
Officer Brown, the judge concluded that they both had a
“credible demeanor.” To determine “which one’s story is
more likely true,” she looked at photographs of the officers’
injuries taken on the day of the arrest. The photographs of
Officer Brown, the judge observed, showed an abrasion on
his lower leg, which suggested that he “really was involved
in some kind of a tussle.” But the judge saw no indication
that Officer Brown had been struck in the chin, as he had
testified. The photograph of Officer Lopez, on the other
hand, showed a “mild but noticeable injury to the upper
right portion of [his] head,” which, the judge said, corrobo-
rated Officer Brown’s testimony that Carter hit Officer Lopez
in the head. The judge concluded that the injuries were
consistent with Officer Brown’s testimony.
The judge then turned to the question whether to apply
the upward adjustment specified in § 3A1.2(c)(1). After
reciting the language of the guideline,1 the judge said that
1 Section 3A1.2(c)(1) provides:

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4 No. 15-1335
she was “a little bit puzzled.” As she put it, “what happened
after the vehicle was stopped is troubling but not alarm-
ing[,] … not, I suspect, truly extraordinary,” and by compar-
ison the high-speed chase was “much more serious,” even if
it resulted in only a two-point upward adjustment under
§ 3C1.2. Although the judge apparently thought the six-level
increase in § 3A1.2(c)(1) overstated the seriousness of the
scuffle, she said that she was inclined to adopt the findings
of the probation officer:
I do think Mr. Carter was struggling enough
that the officers were injured, at least mildly, at
the time of the arrest. But I personally don’t
think that that conduct is so serious that it gen-
erates -- that it supports a six-level increase.
But I think that that’s for me to consider as a
3553(a) factor as opposed to a calculation, be-
cause I think what I am supposed to do at sen-
tencing first is do the calculations under the
guidelines. And I think under the guidelines,
the probation officer’s findings are supporta-
ble.
Defense counsel then questioned whether the judge had
found that Carter’s conduct was serious enough that it
created a “substantial risk of … serious bodily harm.” The
If, in a manner creating a substantial risk of serious bodi-
ly injury, the defendant or a person for whose conduct
the defendant is otherwise accountable … 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 there-
from … increase by 6 levels.

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No. 15-1335 5
judge said she was “looking at it again.” The prosecutor
advised the court that “[t]here is some case law” on point—
presumably a reference to United States v. Alexander, 712 F.3d
977, 979 (7th Cir. 2013), which holds that a single blow to the
head carries with it the risk of serious bodily harm. In addi-
tion, the prosecutor continued, the unsheathing of the knife
was sufficient, on its own, to support the upward adjust-
ment.
The judge responded that she was not willing to base the
upward adjustment in § 3A1.2(c)(1) on a finding that Carter
had unsheathed the knife because she “did find both wit-
nesses credible.” And unlike the injuries to the officers,
which were visible in the photographs, there was no evi-
dence corroborating Officer Brown’s testimony that Carter
had pulled the knife. The prosecutor then interjected, as he
had done moments earlier, that “the case law is clear[] that
simply punching an officer [in the head], which clearly
happened here, would support this six-level adjustment.”
The judge ultimately accepted that argument. She adopted
the probation officer’s findings, not based on the knife but
rather based “on the law,” which, she said, the government
had “correctly summarized by saying that even a punch or
two punches to an officer qualifies.”
Applying the six-level upward adjustment, the judge cal-
culated a guidelines range of 135 to 168 months based on a
total offense level of 33 and a criminal history category of I,
and imposed a below-guidelines sentence of 120 months in
prison followed by four years of supervised release.

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6 No. 15-1335
II. Analysis
On appeal Carter argues that the judge erred in applying
the upward adjustment in § 3A1.2(c)(1) without explicitly
finding that he had created a substantial risk of serious
bodily injury to the officers. Although Carter concedes that a
single blow to the head can be enough to pose a substantial
risk of serious bodily injury, he argues that the judge was
required to make an explicit finding that his actions posed
such a risk given the specific circumstances of this case.
See Alexander, 712 F.3d at 979 (“Applying the Guideline
standard to the specific circumstances of a case is the re-
sponsibility of the district judge.”). Simply adopting the
findings of the probation officer, he continues, is not enough
to support the adjustment where, as here, the judge made
several comments that conflict with those findings. In par-
ticular, Carter points out that the judge said that she did not
think the “scuffle” was very serious or out of the ordinary,
and at one point even stated that his conduct was not “so
serious that it … support[ed] a six-level increase.” The
judge’s reservations, Carter says, cannot be reconciled with
her decision to apply the enhancement.
But the judge was permitted to adopt the probation of-
ficer’s findings from the presentence report, including the
finding that the blow to the head sustained by Officer Lopez
created a substantial risk of serious bodily injury. Although
the judge’s remarks could have been clearer, we’re satisfied
that she understood the legal standard for imposing the
adjustment. After all, she read aloud from the text of the
guideline, and when defense counsel reminded her that she
must find that Carter’s actions created a substantial risk of
serious bodily injury, she acknowledged counsel’s argu-

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No. 15-1335 7
ment. She went on to conclude that the evidence in the
record—including Officer Brown’s testimony about the
blows to the head and the photographs of the officers’
injuries—supported the probation officer’s finding. See id.
(“Even one blow to the head, and even by an unarmed
person, can pose a substantial risk of serious injury within
the meaning of the Guidelines.”). Nothing more was re-
quired.
A FFIRMED.

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