United States of America v. KEITH LEON SMITH, AKA Christopher Griffen, AKA Chris Griffin, AKA Christopher…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH LEON SMITH, AKA Christopher
Griffen, AKA Chris Griffin, AKA
Christopher Griffin, AKA Ken Smith,
AKA Kenneth Anthony Smith, AKA Leon
Smith,
Defendant-Appellant.
No. 16-50158
D.C. No.
2:15-cr-00367-RGK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued & Submitted October 11, 2018
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District
Judge.
FILED
OCT 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.

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Keith Leon Smith appeals his conviction and sentence for assaulting a
federal officer in violation of 18 U.S.C. § 111(a)(1) and (b). The incident occurred
after officers located Smith in Carson, California, two years after he absconded
from federal supervised release. When the officers blockaded his van, Smith
accelerated and drove directly toward Deputy Beeler, causing Beeler to jump out of
harm’s way.
On appeal, Smith challenges the mens rea jury instruction, contending it did
not adequately instruct the jury on the intent required for an “intent to frighten”
theory of assault. Not only did Smith waive this objection by failing to object on
this basis below, but the two relevant jury instructions (Instructions 29 and 30),
when read together, do not misstate the law. Smith also argues that the jury lacked
sufficient evidence to conclude that he intended to do anything other than flee. But
the record contains more than enough evidence to conclude that when Smith
accelerated his van towards Beeler, Smith intended to frighten Beeler.
Smith next contends that the district court erred at sentencing in finding, by
a preponderance of the evidence, that he intended to injure Beeler—a prerequisite
to applying the aggravated assault guideline. Although the jury did not find such
intent beyond a reasonable doubt, the record more than supports the court’s finding
at sentencing under the preponderance-of-the-evidence standard.
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Applying both the aggravated assault guideline (U.S.S.G. § 2A2.2), and the
dangerous weapon enhancement (U.S.S.G. § 2A2.2(b)(2)(B)) did not
impermissibly punish Smith twice for the same conduct because the guideline and
enhancement focus on different aspects of Smith’s conduct: The guideline applies
because the assault involved the use of a van with intent to injure; the enhancement
applies because Smith actually used the van as a weapon by accelerating toward
Beeler. See United States v. Reese, 2 F.3d 870, 896 (9th Cir. 1993).
Finally, Smith waived his argument that the government should have
disclosed the first grand jury transcript when he withdrew the request below. See
United States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir. 1995) (“[W]ithdrawal
of an objection is tantamount to a waiver of an issue for appeal.”); United States v.
Moore, 653 F.2d 384, 389–90 (9th Cir. 1981). Additionally, any problem with the
testimony of a witness in the first grand jury proceedings could not have resulted in
reversible error: Smith was tried after a second grand jury independently indicted
him without hearing from that witness, and the trial jury convicted on a similar
record.
AFFIRMED.
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