United States v. Cozzi

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2648

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

W ILLIAM C OZZI,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 CR 276—Blanche M. Manning, Judge.

A RGUED F EBRUARY 18, 2010—D ECIDED JULY 30, 2010

Before E ASTERBROOK, Chief Judge, and K ANNE and

R OVNER, Circuit Judges.

K ANNE, Circuit Judge. Chicago Police Officer William

Cozzi shackled a man to a wheelchair in a hospital and

then repeatedly bludgeoned him in the head and face

with a sap.1 He now appeals the district court’s denial of

1

Although the record does not contain a description of the

actual weapon that Cozzi used, a sap is generally described as

(continued...)

2 No. 09-2648

his motion to dismiss the indictment charging him

with violating his victim’s civil rights. He also appeals

the district court’s use of the sentencing guideline for

aggravated assault rather than the guideline for civil

rights violations. Neither of the issues Cozzi raises on

appeal has merit. We therefore affirm Cozzi’s convic-

tion and sentence.

I. B ACKGROUND

Randle Miles was stabbed during an altercation in

August 2005. He then drank heavily before an ambulance

came and took him to Norwegian American Hospital

in Chicago. William Cozzi, a Chicago Police Department

officer, was dispatched to the scene of the altercation,

but eventually made his way to the hospital to talk with

Miles. Miles was apparently being loud and abusive

to hospital staff, so Cozzi placed Miles under arrest,

handcuffing him to a wheelchair and shackling his legs.

While several witnesses looked on, Cozzi then hit Miles

repeatedly with a non-police-issued sap. Cozzi later

falsified a police report and misdemeanor complaints

claiming that Miles had thrown punches and that Cozzi

had struck Miles with his hand; he never mentioned

the sap. The incident, however, was caught on tape by a

1

(...continued)

“a leather-covered flat or round piece of lead with a spring

handle, although it could contain lead shot rather than a solid

piece of metal.” Jack Lewis et al., The Gun Digest Book of

Assault Weapons 42 (7th ed. 2007).

No. 09-2648 3

hospital security camera. The hospital contacted the

Chicago Police Department’s Office of Professional Stan-

dards (“OPS”) later that month to report the incident.

OPS started an investigation the day after the hospital

reported the incident. It interviewed several witnesses

and obtained a copy of the video and 911 calls related

to the event. On September 14, 20, and 21, 2005, OPS

interviewed Cozzi. He was first given administrative

rights, which compelled him to make a statement or lose

his job, but which also guaranteed that his statements

could not be used against him in any future criminal

proceedings. Ultimately, OPS concluded that Cozzi

should be terminated from the Chicago Police Department.

In December 2005, Cozzi was indicted in Cook County

for aggravated felony battery and official misconduct.

He pled guilty in May 2007 to a reduced misdemeanor

battery charge, for which the court sentenced him to

eighteen months’ probation and required him to attend

anger management classes. The superintendent of the

Chicago Police Department filed charges in April 2006 to

fire Cozzi from the police department. The Chicago Police

Board held public hearings in July and August 2007

in which Cozzi was called as an adverse witness. In

October 2007, the Police Board decided 6-2 to suspend

Cozzi for two years rather than terminate him. His sus-

pension was made retroactive to April 2006. The Cook

County Circuit Court Chancery Division affirmed the

decision in July 2008 over the city’s appeal.

Former FBI agent Jody Weis was scheduled to be-

come the Chicago Police Department’s superintendent on

February 1, 2008. In January 2008, Weis told the press

4 No. 09-2648

that he was unhappy with the Police Board’s decision

and promised to review Cozzi’s case. That same month,

Weis sent two emails to an agent in the FBI’s Chicago

field office, asking whether the FBI had investigated

Cozzi for civil rights violations and mentioning that the

former superintendent had unsuccessfully tried to fire

Cozzi and that Cozzi had “falsified his statement.” Weis

also attached a copy of the video clip of the incident.

The FBI had not yet started an investigation, but it

quickly did. In April 2008, a federal grand jury in-

dicted Cozzi on one count of violating 18 U.S.C. § 242 by

depriving Miles of his right to be free from the unrea-

sonable use of force. None of the federal prosecutors saw

or reviewed Cozzi’s immunized statements, and his

protected statements were removed from the OPS files

that were turned over to the federal grand jury.

Cozzi filed a motion in the district court seeking to

have the indictment dismissed on the grounds that the

government had improperly used his immunized state-

ments in violation of Garrity v. New Jersey, 385 U.S. 493

(1967). The district court denied his motion, finding that

no one on the prosecution team reviewed the state-

ments and that Weis could not have had more than a

“tangential influence” on the prosecution team’s trial

strategy. Cozzi entered a conditional guilty plea, re-

serving his argument under Garrity to appeal. He also

objected to several issues regarding the applicable sen-

tencing guidelines and calculations. The district court

sentenced Cozzi to forty months’ imprisonment in

June 2009. This appeal followed.

No. 09-2648 5

II. A NALYSIS

Cozzi argues on appeal that the district court should

have dismissed the indictment because Weis’s review of

his protected statements and subsequent tip to the FBI

constituted an improper use of his statements in viola-

tion of Garrity, 385 U.S. 493, and Kastigar v. United States,

406 U.S. 441 (1972). He also argues that the district court

erred by calculating his base offense level under the

guideline for aggravated assault rather than the guideline

for civil rights violations.

A. Use of Immunized Statements

We review the district court’s legal conclusions de novo

and its factual findings for clear error. See United States v.

Greve, 490 F.3d 566, 570 (7th Cir. 2007). The Fifth Amend-

ment, applicable to the states via the Fourteenth Amend-

ment, provides that a person cannot be compelled to

testify if in so doing he would incriminate himself. U.S.

Const. amend. V. In some circumstances, however, the

government may compel someone to testify, even if the

testimony is incriminating, if the government gives the

witness immunity. See, e.g., 18 U.S.C. § 6002. This excep-

tion to the general rule against compelled self-incrimina-

tion stems in part from the Supreme Court’s decision in

Garrity, 385 U.S. 493. There, several police officers were

interviewed as part of an investigation into fixing traffic

tickets. The officers were faced with a daunting choice:

they were free to invoke their right not to incriminate

themselves, but any officer that refused to testify would

lose his job. The state then used some of the officers’

6 No. 09-2648

testimony, over the officers’ objections, in a later criminal

trial. Id. at 494-95. The issue made its way to the

Supreme Court, which held that “the protection of the

individual under the Fourteenth Amendment against

coerced statements prohibits use in subsequent criminal

proceedings of statements obtained under threat of re-

moval from office . . . .” Id. at 500.

Later, in Kastigar, 406 U.S. 441, the Supreme Court

upheld the constitutionality of a federal immunity

statute, explaining that to supplant the Fifth Amend-

ment’s privilege, the government is only required to

provide “use and derivative-use immunity”—that is, that

the government cannot introduce the compelled testi-

mony into evidence at a later trial, or make derivative

use of the testimony. Id. at 453. The Court noted that

use and derivative-use immunity “prohibits the prose-

cutorial authorities from using the compelled testimony

in any respect . . . .” Id. It specified that “[t]his total pro-

hibition on use provides a comprehensive safeguard,

barring the use of compelled testimony as an ‘investiga-

tory lead,’ and also barring the use of any evidence

obtained by focusing investigation on a witness as a

result of his compelled disclosures.” Id. at 460 (footnote

omitted). Once the defendant shows that he made a

protected statement, federal prosecutors have “the af-

firmative duty to prove that the evidence [they] propose[ ]

to use is derived from a legitimate source wholly inde-

pendent of the compelled testimony.” Id.

Some courts have read Kastigar expansively to prohibit

not only the introduction of compelled testimony into

evidence, but also “assistance in focusing the investiga-

No. 09-2648 7

tion, deciding to initiate prosecution, refusing to plea-

bargain, interpreting evidence, planning cross-examina-

tion, and otherwise generally planning trial strategy.” See,

e.g., United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.

1973). We, however, rejected this broad reading of Kastigar,

opting instead for a more measured approach. See United

States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992).

We held in Velasco that “the mere tangential influence

that privileged information may have on the prosecutor’s

thought process in preparing for trial is not an imper-

missible ‘use’ of that information.” Id. This approach ac-

knowledges that “[t]he burden on the prosecution to

establish an independent source for evidence against a

defendant is a heavy one indeed,” but that it should not

be an impossible one to bear. Id. We re-affirmed Velasco’s

“tangential influence” approach in United States v. Bolton,

977 F.2d 1196, 1199 (7th Cir. 1992). Ours is not the only

circuit to adopt this approach to Kastigar immunity. See,

e.g., United States v. Schmidgall, 25 F.3d 1523, 1529 (11th Cir.

1994) (“[T]his Circuit has adopted the ‘evidentiary’ inter-

pretation of Kastigar: that the focus of a challenge on

self-incrimination grounds should be on the direct and

indirect evidentiary uses of immunized testimony,

rather [than] on non-evidentiary matters such as the

exercise of prosecutorial discretion.”).

Cozzi argues that the Supreme Court’s decision in

United States v. Hubbell, 530 U.S. 27 (2000), upset our

“tangential influence” line of cases. In Hubbell, the gov-

ernment made several broadly worded discovery re-

quests, with which the defendant refused to comply

8 No. 09-2648

because some of the documents might have been incrimi-

nating. When the government gave the defendant im-

munity “to the extent allowed by law,” the defendant

provided more than 13,000 pages to the prosecutor. Id.

at 31. The prosecutor later prepared new charges against

the defendant based on information gleaned from the

produced documents that was previously unknown to

the prosecutor. Id. The Court held that the indictment

had to be dismissed because “the testimonial aspect of

respondent’s act of producing subpoenaed documents

was the first step in a chain of evidence that led to this

prosecution.” Id. at 42. Important to the Court’s conclu-

sion was the fact that “[i]t was only through respondent’s

truthful reply to the subpoena that the government re-

ceived the incriminating documents of which it made

substantial use . . . in the investigation that led to the

indictment.” Id. at 42-43 (internal quotation marks and

footnote omitted) (second alteration in original).

Against this backdrop, Cozzi argues that his convic-

tion should be overturned because he claims that his

statements were improperly used against him. Cozzi’s

theory on appeal of who used his statements improperly

has gradually expanded from initial briefing to oral

argument. In his initial brief, in which he had the oppor-

tunity to define the scope of the appeal, Cozzi argued

only that Weis’s tip to the FBI constituted an improper

use of his protected statements. But in his reply brief,

Cozzi added a complaint that the federal prosecutors

may have been exposed to, and thus afforded the oppor-

tunity to improperly use, his protected statements be-

cause the OPS file contained references to his statements,

No. 09-2648 9

although the statements themselves had been removed

from the file. Then, at oral argument Cozzi added the

OPS investigators to his list, arguing that the govern-

ment had not met its burden to show that the OPS in-

vestigators had not made improper use of his statements

in conducting their investigation.

An appellant cannot raise new theories or issues in a

reply brief or at oral argument, United States v. Wescott, 576

F.3d 347, 354 (7th Cir. 2009) (reply brief); Holman v. Indiana,

211 F.3d 399, 405-06 (7th Cir. 2000) (oral argument), so

Cozzi has waived any complaint he may have had

about the government meeting its burden regarding the

federal prosecutors and OPS investigators. To the extent

that Cozzi was justified in failing to mention his com-

plaint about the federal prosecutors’ exposure because

certain documents were sealed until after his initial brief

was due, we find that references to Cozzi’s statements

in the OPS files did not expose the prosecutors improp-

erly to the content of Cozzi’s protected statements. Al-

though the OPS report does negate various aspects of

Cozzi’s testimony, it appears that the specific facts men-

tioned are derived from statements that Cozzi made in

unprotected reports. The one statement that came directly

from his protected statement was appropriately redacted

and gives us no further cause for concern.

Turning now to Cozzi’s argument regarding Weis, we

find that Weis’s tip to the FBI did not constitute an im-

proper use of Cozzi’s protected statement. As an initial

matter, we note that the question of whether Weis re-

viewed Cozzi’s protected statements remains unan-

10 No. 09-2648

swered because the government did not see fit to submit

an affidavit from Weis explaining what he did or did not

read. We also do not know, although we may speculate,

why Weis referred Cozzi’s case to the FBI. Because the

government bears the burden to prove that the state-

ments were not improperly used, we think it fair to

assume for purposes of this appeal that Weis read the

protected statements, and we may even assume that

he was motivated to email his colleagues at the FBI

because of what the protected statements contained.

However, those assumptions do not end our inquiry

into whether Cozzi’s statements were improperly used,

thus requiring us to overturn his conviction.

There is no question that Kastigar bars not only eviden-

tiary use of compelled testimony but also non-evidentiary,

or derivative, use of the same. At issue here is the scope

of derivative-use immunity. The case law does not say

that a defendant’s immunized statements may never

be used by anyone under any circumstances. Garrity, for

example, clearly contemplated that the officers’ com-

pelled testimony could be used for internal investigation

purposes. 385 U.S. at 500 (noting that the Fourteenth

Amendment only prohibited the use of coerced state-

ments in “subsequent criminal proceedings”). Here, there

is no question that OPS was well-within the bounds of the

law to compel Cozzi’s testimony and use it for its own

limited investigatory purposes. The question, then, is

not simply whether the statements were used; rather, the

constitutional guarantee that a defendant be free from

compelled self-incrimination is concerned with how and

by whom the statements are used.

No. 09-2648 11

Kastigar immunity is primarily concerned with the

prosecutor’s use of compelled testimony because it is

the prosecutor who actually initiates and pursues

criminal proceedings against a defendant. Thus, Kastigar

held that use or derivative-use immunity is co-extensive

with the Fifth Amendment privilege because it “prohibits

the prosecutorial authorities from using the compelled

testimony in any respect . . . .” 406 U.S. at 453 (emphasis

added); see also id. at 462 (“We conclude that the

immunity provided by 18 U.S.C. § 6002 leaves the wit-

ness and the prosecutorial authorities in substantially the

same position as if the witness had claimed the Fifth

Amendment privilege.” (emphasis added)). The Court

has also held that “a state witness may not be compelled

to give testimony which may be incriminating under

federal law unless the compelled testimony and its fruits

cannot be used in any manner by federal officials in

connection with a criminal prosecution against him.” Murphy

v. Waterfront Comm’n of N.Y., 378 U.S. 52, 79 (1964) (empha-

sis added). Cozzi appears to agree with this general

proposition. (See Appellant’s Br. at 12) (“The prosecution

is wholly precluded from making any direct use, or deriva-

tive use, of compelled testimony.” (first emphasis added)).

The fact that the prosecution bears the burden to prove

that all of its evidence comes from legitimate sources

bolsters our understanding that the prosecution is the

number-one concern of Kastigar immunity. Velasco, 953

F.2d at 1474.

Cozzi has not brought to our attention a single case

where a non-prosecutor’s use of a compelled statement,

by itself, was held to be a violation of the defendant’s

12 No. 09-2648

Fifth Amendment privilege. To be sure, the government

has not cited any cases where a non-prosecutor’s use of

a compelled statement was held not to be a violation of

the defendant’s Fifth Amendment privilege. But see id. at

1474 (concluding that the prosecutor’s use, if any, of

protected statement was not improper). The dearth of

cases in either category further supports the proposi-

tion that it is the prosecutor’s use of a compelled state-

ment that is of primary concern.

That is not to say that other individuals’ use of pro-

tected statements cannot run afoul of a defendant’s im-

munity rights. See, e.g., United States v. North, 920 F.2d 940,

942 (D.C. Cir. 1990) (“Kastigar is . . . violated whenever

the prosecution puts on a witness whose testimony is

shaped, directly or indirectly, by compelled testimony,

regardless of how or by whom he was exposed to that

compelled testimony. Were the rule otherwise, a private

lawyer for a witness sympathetic to the government

could listen to the compelled testimony and use it to

prepare the witness for trial. The government would

presumably thereby gain the advantage of use of the

immunized testimony so long as it did not actually cooper-

ate in that effort.”); In re Corrugated Container Antitrust

Litigation, 644 F.2d 70, 76-77 (2d Cir. 1981) (finding that

a prosecutor cannot use answers by a witness to ques-

tions posed by a civil litigant if those questions were

derived from a protected statement). But the limits on

use by non-prosecutors must be understood in terms of

their relationship to the prosecutor’s actions in future

criminal proceedings. After all, immunity is concerned

with “insur[ing] that the testimony cannot lead to the

No. 09-2648 13

infliction of criminal penalties on the witness.” Kastigar,

406 U.S. at 453.

Turning now to the facts before us, Cozzi argues that

Weis’s tip to the FBI was an impermissible use of his

protected statements because “but for” Weis’s tip there

would not have been a federal investigation and indict-

ment. Cozzi argues that, like the compelled discovery

documents in Hubbell, Weis’s tip was the first step in a

chain of evidence that led to criminal proceedings

against him. We disagree. We find that Weis’s tip alone,

without communicating the substance of Cozzi’s state-

ments to federal officials, does not constitute an imper-

missible non-evidentiary use of the compelled statement.

We are not concerned with how Weis may have influ-

enced the federal investigation, but rather how Cozzi’s

statements influenced the investigation. When framed

properly, it is clear that Cozzi’s statements could not

have had even a tangential influence on the federal prose-

cutors. Weis did not tell his former colleague at the

FBI what Cozzi’s statements contained, and we do not

think that simply saying a statement was “falsified,” by

itself, is enough to impute improper use of the statement

to prosecutorial authorities. Cf. Bolton, 977 F.2d at 1199

(noting that the defendant’s “denials of wrongdoing and

assertions that the witnesses at the first trial had lied . . .

[could not] have been much help to the prosecution”).

We do not ignore that Weis’s standing as a former FBI

agent and as the incoming head of the Chicago Police

Department most likely weighed heavily in the FBI’s

decision to start an investigation. But Weis’s resumé does

14 No. 09-2648

not alter the fact the FBI had to start its investigation

into Cozzi from scratch. Weis’s emails, devoid of any

details about Cozzi’s protected statements, provided

federal authorities with no evidentiary leads or other

information that they could use to focus their investiga-

tion. In other words, the federal officials were “ ‘in sub-

stantially the same position as if [Cozzi] had claimed

his privilege in the absence of a grant of immunity.’ ”

Hubbell, 530 U.S. at 40 (quoting Kastigar, 406 U.S. at 458-

59). Under these circumstances, we find that whatever

influence Cozzi’s protected statements may have had on

Weis, the government has proven that the statements

played no prohibited role in the federal investigation

into Cozzi or his subsequent prosecution.

We are not persuaded by Cozzi’s argument that Hubbell

compels a different outcome. We read Hubbell as an

affirmation of the doctrine, fully explained in Kastigar,

406 U.S. at 460, that the government bears the burden of

proving “ ‘that the evidence it proposes to use is derived

from a legitimate source wholly independent of the

compelled testimony.’ ” See Hubbell, 530 U.S. at 40

(quoting Kastigar, 406 U.S. at 460). The prosecutors in

Hubbell failed to meet their burden of proving that the

evidence leading to the subsequent charges against the

defendant did not come from a wholly legitimate source

other than the defendant’s protected statement. Id. at 44-

45. The Court said that because the defendant’s com-

pelled disclosure was the first step in the chain of evi-

dence that led to the criminal charges against him, the

prosecution violated his Fifth Amendment privilege.

Id. at 42. Nothing in the language of Hubbell upsets our

No. 09-2648 15

view of Kastigar immunity as explained in Velasco and

Bolton.

Here, the chain of evidence was cut off between

Weis and federal investigators because Weis did not com-

municate any of the contents of the statements in his

email. What’s more, in Hubbell it was the defendant’s

protected statement itself that prompted the federal

investigation. Here, it was not the statement itself but a

tip by a third party that prompted the investigation. As

discussed above, we evaluate a non-prosecutor’s use of

protected testimony only as it relates to actual criminal

proceedings against the defendant. Whatever role the

statements might have had in motivating Weis’s tip is

at least one step too far removed from the actual federal

investigation and prosecution to justify overturning

Cozzi’s conviction. On the facts before us, we conclude

that the compelled statements, if they had any influence

at all, could have had only a tangential influence on

the federal investigation and prosecution.

Finally, we do not think that our decision today

hearkens back to the now repudiated “silver platter”

doctrine. That phrase arises from the practice of state

law enforcement officials obtaining evidence in violation

of a defendant’s constitutional rights and then handing

it over to federal prosecutors, who were permitted to

use the evidence because they were not the wrongdoers.

The practice has since been repudiated in no uncertain

terms. See Elkins v. United States, 364 U.S. 206, 223 (1960). A

tip by a third party, even one whose tip carries great

weight, is not the same as handing over unconstitu-

16 No. 09-2648

tionally obtained evidence to the federal government to

use in criminal proceedings against the defendant. We

think there is a meaningful difference between Weis

telling the FBI that it ought to consider investigating

Cozzi and Weis telling the FBI the substance of Cozzi’s

protected statements. For the reasons stated above we

find that the government has met its heavy, but not

insurmountable, burden of proving that all of its evi-

dence came from legitimate sources.

B. Applicable Sentencing Guideline

Cozzi also argues that the district court should have

used the civil rights guideline, rather than the aggravated

assault guideline, to calculate the base offense level for

sentencing purposes. A court sentencing a defendant

guilty of violating 18 U.S.C. § 242 starts with § 2H1.1 of

the sentencing guidelines. To calculate the correct base

offense level, § 2H1.1 directs the court to apply the

greatest of either—as applicable here—“the offense level

from the offense guideline applicable to any underlying

offense” or “10, if the offense involved (A) the use or

threat of force against a person . . . .” Subsection (b)

increases the base offense level by 6 levels “[i]f (A) the

defendant was a public official at the time of the offense;

or (B) the offense was committed under color of law . . . .”

Application Note 1 of § 2H1.1 defines the “Offense guide-

line applicable to any underlying offense” as “the offense

guideline applicable to any conduct established by the

offense of conviction that constitutes an offense under

federal, state, or local law (other than an offense that is

itself covered under Chapter Two, Part H, Subpart 1).”

No. 09-2648 17

The government urged the district court to use § 2A2.2

of the sentencing guidelines to calculate Cozzi’s base

offense level. Section 2A2.2 applies to “aggravated as-

sault,” which is defined as “a felonious assault that in-

volved (A) a dangerous weapon with intent to cause

bodily injury (i.e., not merely to frighten) with that

weapon; (B) serious bodily injury; or (C) an intent to

commit another felony.” U.S.S.G. § 2A2.2, Application

Note 1. The government argued that the conduct to

which Cozzi pled guilty fell squarely within the defini-

tion of aggravated assault—namely, that Cozzi re-

peatedly struck Miles in the face with a sap—a dangerous

weapon. The district court adopted the government’s

(and the pre-sentence report’s) recommendation to use

§ 2A2.2 to calculate the base offense level.

The district court correctly applied the sentencing

guidelines in calculating the appropriate sentencing

range for Cozzi. The plain language of § 2H1.1 directs a

court to apply the sentencing guideline applicable to

the underlying offense (here, aggravated assault) if it

would produce a greater base offense level than the base

offense level premised solely on § 2H1.1. In this regard,

§ 2H1.1 “provides a floor, not a ceiling.” United States v.

Byrne, 435 F.3d 16, 27 (1st Cir. 2006). The sentencing

guidelines recognize that in a situation, as here, where

the defendant’s conduct is more reprehensible than a

civil rights violation that used a minor amount of force,

the defendant’s sentence should be on par with other

defendants in federal court who committed similar

conduct under federal jurisdiction. Id.

18 No. 09-2648

Cozzi argues that the district court’s use of § 2A2.2

was also improper because there was no underlying

offense due to the fact that he was only charged with

and pled guilty to one count, a civil rights violation. But

the fact that there is only one count in his indictment

does not eliminate Cozzi’s conduct—he could only

violate Miles’s civil rights by doing something. It is

that something that constitutes the underlying offense

for purposes of § 2H1.1, regardless of how many sub-

stantive counts with which Cozzi was charged.

Cozzi also argues that because § 2H1.1 takes into

account aggravating factors, there was no need to resort

to § 2A2.2. Cozzi is correct that both § 2H1.1 and § 2A2.2

could account for his underlying conduct. However,

the plain language of § 2H1.1 specifically directs the

district court to use the guideline that produces the

greatest base offense level. Section 2A2.2 produces a

higher base offense level than § 2H1.1, so the district

court was correct in using the former section as a

starting point for calculating Cozzi’s appropriate sen-

tencing range.

Cozzi also argues that the aggravated assault guideline

was not intended to cover civil rights violations because

it does not mention 18 U.S.C. § 242 as an applicable

code section and a civil rights violation is not like the

other substantive crimes specifically mentioned. Of

course, here the cross-reference comes from the civil

rights guideline and not the aggravated assault guide-

line. There are myriad ways to violate someone’s civil

rights, so as a matter of policy and economy it makes

No. 09-2648 19

sense to have a single, flexible cross-reference in the

civil rights guideline, rather than include a reference to

the civil rights guideline in every conceivable section

covering conduct that might also violate a victim’s

civil rights.

Cozzi’s argument that using the aggravated assault

guideline will produce sentencing disparities between

him and other civil rights violators is without merit.

Section 2H1.1 is in fact designed to ensure that there are

no sentencing disparities between someone who com-

mits aggravated assault and someone who commits

aggravated assault that also violates the victim’s civil

rights. With a view toward the underlying conduct, there

is no risk that referencing the aggravated assault guide-

line here will result in Cozzi receiving a sentence inap-

propriately disparate from other similarly situated de-

fendants.

Finally, Cozzi argues that the aggravated assault guide-

line does not apply to him because he only pled guilty to

a misdemeanor in state court and the guideline is

expressly limited to “felonious assault.” It is Cozzi’s

conduct, however, and not his state court plea that con-

stitutes the underlying offense for purposes of § 2H1.1.

See U.S.S.G. § 2H1.1, Application Note 1. In his federal

plea agreement, Cozzi acknowledged that he hit Miles

in the face with a dangerous weapon. He can make no

serious argument that the conduct to which he pled guilty

does not constitute felonious assault, his bargain

in state court notwithstanding. Accordingly, the dis-

trict court did not err in finding that § 2A2.2 was ap-

plicable to Cozzi’s underlying offense.

20 No. 09-2648

III. C ONCLUSION

There was no improper use of Cozzi’s immunized

statements, and the district court correctly calculated the

applicable guideline range. We therefore A FFIRM Cozzi’s

conviction and sentence.

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