U.S. v. Rivera-Alonzo, No. 08-10081 (10-26-09). The defendant was convicted of assault on a federal officer with a dangerous weapon. The incident arose when the defendant crossed into the United States near San Luis, Arizona. A Border Patrol Agent sought to stop the defendant. The defendant ran from the agent. The accounts then differed: the agent was either tackled by the defendant or the defendant tackled the agent. A struggle ensued, again depending on the account, with one or the other being the aggressor. The jury sided with the agent's account. On appeal, the defendant argued that he was entitled to a lesser included offense of simple assault (a misdemeanor). The 9th (N. Smith joined by Noonan and Berzon) affirmed the conviction and sentence. The 9th held that the district court did not abuse its discretion in refusing the lesser included, because a jury, in finding a lesser, necessarily would have had to find the elements of the greater. The lesser involves an assault with no physical contact. Here, the facts were such that all admitted that physical contact was made, and there was a purported struggle for the gun. The facts as they came out meant that the jury could not find for simple assault without finding physical contact. There was also no clear error in the court finding that the defendant's conduct was motivated by the victim's official status, and so received an "official victim" enhancement under the Guidelines (3A1.2).