United States v. Troy Sargent

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 15, 2023 Decided June 7, 2024

No. 23-3005

UNITED STATES OF AMERICA,

APPELLEE

v.

TROY SARGENT,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00258-1)

Judith Mizner, Assistant Federal Public Defender, argued

the cause and filed the briefs for appellant.

Eric Hansford, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Chrisellen R. Kolb,

Nicholas P. Coleman, and Michael J. Romano, Assistant U.S.

Attorneys.

Before: MILLETT, WILKINS and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

2

WILKINS, Circuit Judge: On January 6, 2021, Appellant

Troy Sargent joined the throngs outside the U.S. Capitol to

protest the certification of the 2020 election results. While

there, he smacked a U.S. Capitol Police officer in the head and

then tried to do it again after explicitly being ordered not to. In

connection with this conduct, Sargent was charged with

assaulting, resisting, or impeding law enforcement officers in

violation of 18 U.S.C. § 111(a)(1). Sargent pleaded guilty and

the District Court sentenced him according to the U.S.

Sentencing Guidelines (“the Guidelines”). To do so, however,

the District Court had to determine which of two guidelines

assigned to Section 111 convictions by the Statutory Index

(“the Index”) to the Guidelines was “most appropriate for the

offense conduct charged[:]” § 2A2.2, which applies to

aggravated assaults, or § 2A2.4, which applies to obstructing

or impeding officers. U.S. SENT’G GUIDELINES MANUAL

§§ 1B1.2 cmt. n.1, 2A2.2, 2A2.4 (U.S. SENT’G COMM’N 2021);

see id. § 1B1.2(a).

The District Court determined § 2A2.2 was most

applicable to Sargent’s conduct. To make this selection, the

District Court relied on the commentary to § 2A2.2, which

designates “felonious assault that involve[s] . . . an intent to

commit another felony” as a qualifying “aggravated assault.”

Id. § 2A2.2 cmt. n.1. Notably, § 2A2.2 carries a higher base

offense level than § 2A2.4.

Sargent appeals to vacate his Section 111 sentence. On his

read, § 2A2.4, rather than § 2A2.2, was the guideline most

applicable to his conduct, which he argues does not fall within

the plain meaning of “aggravated assault” in the guideline text

of § 2A2.2. In support, Sargent relies on the Supreme Court’s

decision in Kisor v. Wilkie, which held that courts may apply

Auer deference to agency interpretations of their own

regulations only if the regulation is genuinely ambiguous after

3

applying “all the standard tools of interpretation.” 588 U.S.

558, 573 (2019). Urging application of Kisor to the Guidelines

and commentary, Sargent argues that his conduct

unambiguously falls outside the § 2A2.2 definition of

“aggravated assault” and that the District Court erred in relying

on the commentary to conclude otherwise.

For the reasons set forth below, we conclude that the

District Court was correct to apply § 2A2.2. We need not

address the degree of deference to afford the commentary to

the Guidelines writ large because the plain meaning of

“aggravated assault,” according to the text, structure, and

context of the Guidelines, unambiguously captures Sargent’s

conduct. Accordingly, we affirm.

I.

A.

i.

The Sentencing Reform Act of 1984 (“the Act”) created

the Sentencing Commission (“the Commission”), which is

charged by statute with “establish[ing the] sentencing policies

and practices for the Federal criminal justice system.”

28 U.S.C. § 991(b)(1). In order to establish these policies and

practices, the Commission promulgates “guidelines . . . for use

of a sentencing court in determining the sentence to be imposed

in a criminal case” and “general policy statements regarding

application of the guidelines or any other aspect of sentencing

or sentence implementation that in the view of the Commission

would further the purposes set forth

in [18 U.S.C. § 3553(a)(2).]” 28 U.S.C. § 994(a)(1)–(2).

Although it is an agency within the judicial branch, and so

outside the purview of the Administrative Procedure Act

(“APA”), the Commission is subject, with regard to proposed

4

sentencing guidelines and amendments, to the provisions of the

APA that relate to publication in the Federal Register and

public hearing procedure. Id. § 994(x). Beyond these

requirements, amendments to the Guidelines are promulgated

through submission to Congress for a six-month period of

review, during which period Congress can modify or

disapprove them. Id. § 994(p).

The Commission also publishes commentary to

accompany the Guidelines. While the Commission is not

directly required to promulgate commentary, courts are

directed by statute to consider it when applying the Guidelines.

See 18 U.S.C. § 3553(b) (“In determining whether a

circumstance was adequately taken into consideration, the

court shall consider only the sentencing guidelines, policy

statements, and official commentary of the Sentencing

Commission.”). The Guidelines themselves additionally

provide that “[t]he Commentary that accompanies the

guideline sections . . . may interpret the guideline or explain

how it is to be applied” and that “[f]ailure to follow such

commentary could constitute an incorrect application of the

guidelines, subjecting the sentence to possible reversal on

appeal.” U.S. SENT’G GUIDELINES MANUAL § 1B1.7

(U.S. SENT’G COMM’N 2021) (citing 18 U.S.C. § 3742).

While “[t]he Commission may promulgate

commentary . . . and amendments thereto[] without regard to”

the APA, it nevertheless “endeavor[s] to provide, to the extent

practicable, comparable opportunities for public input on

proposed . . . commentary considered in conjunction with

guidelines amendments.” U.S. SENT’G COMM’N, RULES OF

PRACTICE & PROCEDURE § 4.3 (2016). Similarly, the

Commission, again “to the extent practicable,” “endeavor[s] to

include amendments to . . . commentary in any submission of

guideline amendments to Congress[.]” Id. § 4.1. In accordance

with these policies, as an example, the Commission submitted

5

amendments to the commentary along with the November 2023

Guidelines amendments for notice-and-comment. See Notice

of Submission and Request for Comment, Sentencing

Guidelines for United States Courts, 88 Fed. Reg. 28254 (May

3, 2023); cf. Notice and Request for Public Comment,

Sentencing Guidelines for United States Courts, 88 Fed. Reg.

89142 (Dec. 26, 2023); Notice and Request for Public

Comment, Sentencing Guidelines for United States Courts, 88

Fed. Reg. 7180 (Feb. 2, 2023). Thus, ordinarily and in practice,

the commentary undergoes the same congressional and public

review as the Guidelines.

For the purposes of judicial review, the Supreme Court has

directed that the Guidelines should be treated as “the equivalent

of legislative rules adopted by federal agencies” because “[t]he

Sentencing Commission promulgates the [G]uidelines by

virtue of an express congressional delegation of authority for

rulemaking[.]” Stinson v. United States, 508 U.S. 36, 44–45

(1993). Extending this analogy, the Supreme Court has also

directed that the commentary should be treated like “an

agency’s interpretation of its own regulations” and, as long as

the commentary “does not violate the Constitution or a federal

statute,” must be “given ‘controlling weight unless it is plainly

erroneous or inconsistent with the regulation.’” Id. at 45

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,

414 (1945)).

At the same time, the differences between agency

regulations and the Guidelines have grown dramatically since

Stinson was decided. In 2005, the Supreme Court invalidated

two provisions of the Act that previously made the Guidelines

mandatory on the courts. See United States v. Booker, 543 U.S.

220, 227 (2005). Following Booker, agency regulations retain

the force of law but the Guidelines do not—making Stinson’s

acknowledgement that “the analogy [between the commentary

6

and an agency’s interpretation of its own legislative rule] is not

precise” all the more important now. Stinson, 508 U.S. at 44.

ii.

When sentencing, courts consider the “kinds of

sentence[s] and the sentencing range established for . . . the

applicable category of offense committed by the applicable

category of defendant as set forth in the [G]uidelines[.]”

18 U.S.C. § 3553(a)(4). In order to identify the sentencing

range, courts first select the guideline that applies to the

relevant offense using the Index pursuant to § 1B1.2. See U.S.

SENT’G GUIDELINES MANUAL § 1B1.1(a)(1) (U.S. SENT’G

COMM’N 2021); United States v. McKeever, 824 F.3d 1113,

1121 (D.C. Cir. 2016). Using the appropriate guideline for the

offense, courts next determine the base offense level and apply

any appropriate specific offense characteristics. See U.S.

SENT’G GUIDELINES MANUAL § 1B1.1(a)(2) (U.S. SENT’G

COMM’N 2021). Courts then adjust the offense level for

particular circumstances, like victim, role, obstruction of

justice, or acceptance of responsibility, in order to reach a total

offense level before adding the relevant criminal history

category to determine the advisory sentencing range. Id.

§§ 1B1.1(a)(3), (5)–(6), (8).

The Index sometimes lists more than one guideline for a

particular criminal offense. When that happens, courts are

directed to use the guideline “most appropriate for the offense

conduct charged in the count of which the defendant was

convicted.” Id. § 1B1.2 cmt. n.1. As relevant here,

18 U.S.C. § 111(a)(1) punishes with up to eight years of

imprisonment anyone who:

[F]orcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any [law

enforcement officer] . . . while engaged in or on

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account of the performance of official

duties . . . where such acts involve physical

contact with the victim of that assault or the

intent to commit another felony[.]

18 U.S.C. § 111(a). The Index lists both § 2A2.2 and § 2A2.4

as applicable guidelines for Section 111. Section 2A2.2 applies

to “[a]ggravated [a]ssault[s]” and carries a base offense level

of 14, with level increases where the assault involved “more

than minimal planning,” use of a firearm or dangerous weapon,

or varying degrees of bodily injury. U.S. SENT’G GUIDELINES

MANUAL § 2A2.2 (U.S. SENT’G COMM’N 2021). The § 2A2.2

commentary defines “aggravated assault” as “felonious assault

that involved (A) a dangerous weapon with intent to cause

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

(B) serious bodily injury; (C) strangling, suffocating, or

attempting to strangle or suffocate; or (D) an intent to commit

another felony.” Id. § 2A2.2 cmt. n.1. Section 2A2.4, by

contrast, applies to conduct that involves “[o]bstructing or

[i]mpeding [o]fficers” and carries a base offense level of 10,

with level increases based on physical contact, dangerous

weapons, or bodily injury. Id. § 2A2.4(a)–(b). Additionally,

§ 2A2.4(c) instructs that § 2A2.2 should be applied “[i]f the

conduct constituted aggravated assault[.]” Id. § 2A2.4(c)(1).

B.

i.

On January 6, 2021, Sargent participated in the riot at the

Capitol building. On that day, he scaled a media tower, filmed

multiple videos of himself boasting about his involvement in

the assault, and then, ultimately, approached a faltering line of

U.S. Capitol Police officers on the West Plaza of the Capitol

building and smacked an officer in the head. In response,

another officer immediately instructed Sargent and others: “Do

8

not start attacking people.” Ignoring this order almost

immediately, Sargent then swung his open hand towards the

same officer but, thankfully, missed. Following this

altercation, Sargent retreated into the crowd and left the riot.

Sargent’s subsequent Facebook messages revealed that he

had intended to strike the same officer twice and, indeed,

thought he had. In Facebook messages after January 6, he

reported to an online message group, “After I seen . . . [the

police] throwing them flash grenades into the crowd I had to

get off the ladder and go get me some.” A. 14. In another post-

riot message, he explained, “I got two hits in on the same rookie

cop and then he maced me,” and continued, “yeah every time

he came in his visor was all full of [mace so] I knew [he]

couldn’t see s*** so I just jumped out from behind somebody

[and] punched him as hard as I could [right] in his [visor].” Id.

(alterations in original). Further still, Sargent told others that

he “[p]unched the cop 3 times in their [visor]” and that he “Duff

that cop out twice.” Id.

ii.

In connection with this conduct, Sargent was charged with

six counts, including both assaulting, resisting, or impeding

certain officers in violation of 18 U.S.C. § 111(a)(1), which is

the centerpiece of this appeal, and civil disorder in violation of

18 U.S.C. § 231(a)(3), which is a felony. He pleaded guilty to

all counts.

At sentencing, the District Court applied § 2A2.2 to

Sargent’s Section 111 conviction over his objection. There, as

here, Sargent argued that Kisor required a finding that § 2A2.4

was the most applicable guideline, which in turn meant that his

advisory sentencing range should have been 8–14 months.

Responding to Sargent’s objection, the District Court relied on

Stinson to conclude that the “definition of aggravated assault

9

found in the commentary is appropriate under [§] 2A2.2,”

reasoning further that “the commentary has to be given

appropriate weight and is not overruled by Kisor.” Id. at 120.

Assessing Sargent’s conduct directly, the District Court then

found Sargent’s assault was “not . . . just the obstruction of a

police officer[.]” Id. at 122. Instead, “[his] statements prior to

coming down to the riot,” his “climbing up the . . . media tower

. . . [and then] coming down and joining in [what he saw,]”

“mov[ing] to the front of the line through a huge crowd[,]”

“assault[ing] the police officer[,]” and then “later . . . tr[ying]

to do it again” was evidence of intent to commit the separate

felonious offense of engaging in civil unrest to interfere with

the process of Congress approving the Electoral College vote.

Id. Sargent’s intent to commit that additional civil unrest

felony qualified his conduct as an aggravated assault.

The District Court accordingly determined that the

appropriate advisory sentencing range for Sargent’s Section

111 conviction was 24 to 30 months. Upon consideration of

the 18 U.S.C. § 3553(a) factors, however, the District Court

applied a downward variance and sentenced Sargent to a term

of 14 months, to be followed by 24 months of supervised

release. Notably, the District Court’s sentence matched the

higher end of the range for which Sargent advocated.

II.

Sargent now appeals to vacate this sentence, alleging that

the § 2A2.2 commentary is not entitled to deference under

Kisor. We review whether the District Court properly

interpreted the Guidelines de novo as a question of law. See

United States v. Turner, 21 F.4th 862, 865 (D.C. Cir. 2022)

(reviewing district court calculation of the Guidelines range de

novo); United States v. Cooper, 886 F.3d 146, 155 (D.C. Cir.

2018) (reviewing “purely legal” question of the “soundness of

10

the court’s Guidelines interpretation” de novo). While the

parties focused their arguments on whether the definition of

“aggravated assault” in the § 2A2.2 commentary is entitled to

deference under Kisor, we conclude that this case is best

resolved on the narrower question of whether the term

“aggravated assault” in the § 2A2.2 guideline text

unambiguously applies to Sargent’s conduct. As shown below,

the text, structure, and context of the Guidelines reveal that the

term “aggravated assault” in the § 2A2.2 guideline text

unambiguously encompasses Sargent’s actions on January 6,

2021. For this reason, we affirm.

A.

The “first step in interpreting” a guideline “is to determine

whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.”

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). To do so,

we “start with the text and structure of the Guidelines.”

McKeever, 824 F.3d at 1121; see United States v. Skinner, 70

F.4th 219, 230 (4th Cir. 2023) (per curiam) (“[Courts apply]

the ordinary rules of statutory construction and give a guideline

its plain meaning, as determined by examination of its

language, structure, and purpose”) (internal quotation marks

omitted); see also United States v. Brock, 94 F.4th 39, 51 (D.C.

Cir. 2024) (interpreting a guideline based on its “plain, natural,

and ordinary meaning”).

In this case, neither the relevant criminal statutes nor the

guideline text of § 2A2.2 or § 2A2.4 provide a precise

definition of the term “aggravated assault.” The edition of

Black’s Law Dictionary in print at the time the Guidelines were

first promulgated included two entries for “aggravated assault.”

One, nested under the definition for “assault,” defined it as an

assault “committed with the intention of committing some

11

additional crime; or one attended with circumstances of

peculiar outrage or atrocity.” Assault, Aggravated Assault,

BLACK’S LAW DICTIONARY 105 (5th ed. 1979). The other,

listed independently, provided this definition:

A person is guilty of aggravated assault if he:

attempts to cause serious bodily injury to another, or

causes such injury purposely, knowingly or

recklessly under circumstances manifesting extreme

indifference to the value of human life; or, attempts

to cause or purposely or knowingly causes bodily

injury to another with a deadly weapon.

Aggravated Assault, BLACK’S LAW DICTIONARY 60 (5th ed.

1979). “In all jurisdictions[,]” the entry continues, “statutes

punish such aggravated assaults as assault with intent to murder

(or rob or kill or rape) and assault with a dangerous (or deadly)

weapon more severely than ‘simple’ assaults.” Id. Today, the

same publication defines “aggravated assault” as “criminal

assault accompanied by circumstances that make it more

severe, such as the intent to commit another crime or the intent

to cause serious bodily injury.” Assault, BLACK’S LAW

DICTIONARY (11th ed. 2019). Together, these definitions,

while indicative of potential contours for defining “aggravated

assault,” do not point to a single, unambiguous meaning.

That said, a provision may be “unambiguous without

addressing every interpretive theory[;]” instead, “[i]t need only

be ‘plain to anyone reading’” that it “encompasses the conduct

at issue.” Salinas v. United States, 522 U.S. 52, 60 (1997)

(quoting Gregory v. Ashcroft, 501 U.S. 452, 467 (1991)).

Indeed, even if “[a] term may be ambiguous as applied to some

situations,” it may be unambiguous “as applied to others.”

Ass’n of Battery Recyclers, Inc. v. U.S. Env’t Prot. Agency,

208 F.3d 1047, 1056 (D.C. Cir. 2000). This is why “the

12

plainness or ambiguity” of a guideline’s text “is determined by

reference [not only] to the language itself,” but also to “the

specific context in which that language is used[] and the

broader context of [the guideline] as a whole.” Robinson,

519 U.S. at 341. “A provision that may seem ambiguous in

isolation is often clarified by the remainder of the . . . scheme”

because “only one of the permissible meanings produces a

substantive effect that is comparable with the rest of the law.”

King v. Burwell, 576 U.S. 473, 492 (2015) (quoting United Sav.

Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 371 (1988)). In light of these principles, “[o]ur

inquiry ‘must cease’” if the relevant language is

“unambiguous” and the “‘scheme is coherent and consistent.’”

Robinson, 519 U.S. at 340 (quoting United States v. Ron Pair

Enter., Inc., 489 U.S. 235, 240 (1989)).

Notwithstanding whatever ambiguity the § 2A2.2

guideline text may present in isolation, the text, structure, and

context of the Guidelines, taken together, supply the clarity

necessary to show that § 2A2.2 unambiguously encompasses

the conduct at issue here. The Guidelines instruct sentencing

courts to “[r]efer to the Statutory Index . . . to determine” the

applicable guideline for an offense. U.S. SENT’G GUIDELINES

MANUAL § 1B1.2(a) (U.S. SENT’G COMM’N 2021). The Index

is therefore part of the “text and structure of the Guidelines,”

see McKeever, 824 F.3d at 1121, and courts must faithfully

apply it when calculating the guidelines range, 18 U.S.C.

§ 3553(a)(4)(A); see Gall v. United States, 552 U.S. 38, 51

(2007) (“[I]mproperly calculating[] the Guidelines range” is a

“significant procedural error[.]”). The Index makes clear that

the intended heartland for § 2A2.2 was, and continues to be,

offenses that involve assault with intent to commit another

felony, assault with intent to cause injury, or assault that causes

injury. Accordingly, § 2A2.2 unambiguously applies to, and

13

has always applied to, assaults with intent to commit another

felony.

The structure of the initial versions of the Guidelines

clearly demonstrates § 2A2.2 was designed to apply to offenses

that involve assault with intent to commit any felony from the

beginning. The original 1987 Guidelines provided three

guidelines to cover all assaultive conduct: § 2A2.1, which dealt

with assault with intent to commit murder, conspiracy or

solicitation to commit murder, and attempted murder; § 2A2.2,

which covered aggravated assault; and § 2A2.3, which covered

minor assault. U.S. SENT’G GUIDELINES MANUAL, ch. 2, pt.

A.2 (U.S. SENT’G COMM’N Oct. 1987). At that time, § 2A2.2

was one of multiple specified guidelines for 24 different

criminal statutes, but stood alone as the sole specified guideline

for only four offenses in the Index—18 U.S.C. §§ 113(b),

113(c), 113(f), and 114. 1 As now, the then-contemporary

version of Section 113 concerned “[a]ssaults within maritime

and territorial jurisdiction[.]” 18 U.S.C. § 113 (1982). Section

113(b) punished “[a]ssault with intent to commit any felony,”

Section 113(c) punished “[a]ssault with a dangerous weapon,

with intent to do bodily harm, and without just cause or

excuse,” and Section 113(f) punished “[a]ssault resulting in

serious bodily injury.” Id. § 113(b), (c), (f). Section 114,

meanwhile, concerned “[m]aiming within maritime and

territorial jurisdiction” and applied where a person committed

an assault by certain specified means “with intent to maim or

disfigure.” Id. § 114. Temporary amendments to the

1

In 1987, § 2A2.2 was one of multiple guideline options for the

following statutes: 16 U.S.C. §§ 1029, 1030, 1857(1)(E),

1857(1)(H), 1859, 2435(5), 2435(6), 2435(7), 2438; 18 U.S.C.

§§ 32(b), 111, 112(a), 115(a), 115(b)(1), 351(e), 1153, 1751(e),

2116, 2118(c)(1), 2231; 21 U.S.C. § 675; 33 U.S.C. § 1232(b)(2);

and 42 U.S.C. §§ 2000e-13, 2283(b). U.S. SENT’G GUIDELINES

MANUAL, app. A (U.S. SENT’G COMM’N Oct. 1987).

14

Guidelines were adopted in January 1988 and June 1988. See

Sentencing Guidelines for United States Courts, 53 Fed. Reg.

1286 (Jan. 15, 1988); Sentencing Guidelines for United States

Courts, 53 Fed. Reg. 5104 (Feb. 19, 1988); Sentencing

Guidelines for United States Courts, 53 Fed. Reg. 15530 (Apr.

29, 1988). The temporary amendments became permanent in

October 1988 following submission to Congress for review.

See id. In that revision to the Guidelines, while § 2A2.2 had

grown to become one of the listed guidelines for 26 offenses,

Congress did not disrupt the Commission’s decision to leave

§ 2A2.2 as the only applicable guideline for the same four

offenses it covered by itself in 1987. 2 U.S. SENT’G GUIDELINES

MANUAL, app. A (U.S. SENT’G COMM’N Oct. 1988).

While the original province of § 2A2.2 goes a long way to

confirm that the guideline was intended to cover assault with

intent to commit another felony, later changes and revisions to

the Guidelines bolster this conclusion. First, the contemporary

Guidelines list § 2A2.2 as the only guideline applicable to

violations of 18 U.S.C. § 113(b) that occurred prior to 1994. In

1994, Section 113(b) proscribed “[a]ssault with intent to

commit any felony[.]” 18 U.S.C. § 113(b) (1988). Congress

then moved Section 113(b) to Section 113(a)(2). The 2021

Guidelines provide that district courts should apply §§ 2A2.2,

2A3.2, 2A3.3, and 2A3.4 to a Section 113(a)(2) violation. The

latter three guidelines all concern sexual assault. So for a non-

sexual assault with intent to commit another felony, the

Guidelines require district courts to apply § 2A2.2. Section

2A2.2’s persistent coverage of assaults with intent to commit

another felony strongly suggests that “aggravated assault”

includes such assaults.

2

By October 1988, § 2A2.2 had been added as a guideline option for

18 U.S.C. § 1501 and 26 U.S.C. § 7212(a). U.S. SENT’G GUIDELINES

MANUAL, app. A (U.S. SENT’G COMM’N Oct. 1988).

15

The text, structure, and context of the Guidelines are

equally clear that § 2A2.4 has historically applied and

continues to apply to offenses where the primary issue is

interference with law enforcement—a category of offense that

is distinct from the core conduct toward which § 2A2.2 is

geared. As explained above, §§ 2A2.1, 2A2.2, and 2A2.3 were

the guidelines that applied to all assaults between 1987 and

1988. By October 1988, however, the Commission added

§ 2A2.4 to the “assault” category in an effort to “make the

guidelines more comprehensive.” U.S. SENT’G GUIDELINES

MANUAL, app. C at 37–38 (U.S. SENT’G COMM’N Oct. 1988);

see id. at ch. 2, pt. A.2. Then, as now, § 2A2.4 was designated

for conduct that involved “[o]bstructing or [i]mpeding

[o]fficers” and the two offenses for which § 2A2.4 was the sole

guideline each involved just such conduct as a primary

element. Id. § 2A2.4; app. A. One criminalized “knowingly

and willfully obstruct[ing], resist[ing], or oppos[ing] an

extradition agent . . . .” 18 U.S.C. § 1502 (1988). The other

proscribed the same conduct vis-à-vis “a Federal law

enforcement agent engaged in the performance

of . . . protective functions[.]” Id. § 3056(d). By 2021,

§ 2A2.4 maintained the same position; it was the lone guideline

applicable to over 30 different offenses and, of those offenses,

none included an element involving intent to commit another

felony, intent to cause bodily harm, or causing bodily harm. 3

3

In the November 2021 edition of the Guidelines, § 2A2.4 was the

only guideline applicable to the following statutes: 16 U.S.C.

§§ 773e(a)(2)–(4) & (a)(6), 773g, 973c(a)(8) & (a)(10)–(12), 973e,

1029, 1030, 1417(a)(5)–(6) & (b)(2), 1437(c), 1857(1)(D)–(F) &

(1)(H), 1859, 2435(4)–(7), 2438, 3606, 3637(a)(2)–(4) & (a)(6),

5009(5)–(8), 5010(b); 18 U.S.C. §§ 758, 1502, 2237(a)(1) &

(a)(2)(A), 3056(d); 26 U.S.C. § 7212(a); 30 U.S.C. §§ 1461(a)(3)–

(5) & (a)(7), 1463; 33 U.S.C. § 1232(b)(2); and 42 U.S.C.

§§ 9151(2)–(5), 9152(d).

16

As particularly applicable here, the Commission’s

decision to replace § 2A2.3 with § 2A2.4 for Section 111

offenses further confirms § 2A2.2’s applicability to Sargent’s

conduct. Between 1987 and 1988, § 2A2.2 and § 2A2.3

applied to Section 111 offenses. U.S. SENT’G GUIDELINES

MANUAL, app. A (U.S. SENT’G COMM’N Oct. 1988). As

introduced, § 2A2.3 applied to “minor assault” offenses. U.S.

SENT’G GUIDELINES MANUAL, ch. 2, pt. A.2 (U.S. SENT’G

COMM’N Oct. 1987). At that time, § 2A2.3 was the sole

guideline for five offenses, two of which were assaults, see 18

U.S.C. § 113(d)–(e) (1982), but three of which concerned

refusal to permit an officer to board a vessel or resisting arrest,

see 16 U.S.C. §§ 1857(1)(D), 1857(1)(F), 2435(4) (1982). As

soon as § 2A2.4 was added in October 1988, it replaced

§ 2A2.3 as the second applicable guideline for Section 111

offenses and clearly instructed that § 2A2.2 should be applied

“[i]f [a] defendant is convicted under 18 U.S.C. § 111 and the

conduct constituted aggravated assault.” 4 U.S. SENT’G

GUIDELINES MANUAL, ch. 2, pt. A.2 (U.S. SENT’G COMM’N

Oct. 1988). Meanwhile, § 2A2.3—which, again, applied to

“minor assault” offenses—maintained a virtually identical

footprint in the Guidelines; it remained the sole guideline for

the three obstruction and resisting arrest charges. Indeed, it

appears the only place where § 2A2.4 replaced § 2A2.3 was for

Section 111. These intentional changes lay bare that § 2A2.4,

as applied to Section 111, was supposed to do the same work

§ 2A2.3 had done previously—namely, apply to minor

4

This language remained in place until November 1992, when the

Commission removed the specific reference to Section 111 on the

grounds that “the[] specific offense characteristics [should]

apply . . . on the basis of the underlying conduct.” U.S. SENT’G

GUIDELINES MANUAL, app. C, amend. 443 (U.S. SENT’G COMM’N

2003).

17

assaults—while § 2A2.2 would be applied to assaults that were

aggravated by other, separate factors.

In light of this structure and context, the Commission and,

by virtue of the review structure, Congress have directly

spoken to the question of whether § 2A2.2 should apply to the

conduct at issue here—and their answer is yes.

B.

The arguments Sargent raises to urge a different result are

each unavailing.

To start, Sargent argues, relying on the analogies Stinson

draws between regulations, the Guidelines, and the

commentary, that Kisor “appl[ies] to the sentencing

guidelines” and, necessarily, the commentary.

Appellant’s Br. 8. Employing Kisor, Sargent next asserts that

the District Court’s deference to the commentary definition of

“aggravated assault” was improper because the “guideline is

not genuinely ambiguous.” Id. But as described above,

“aggravated assault” plainly captures Sargent’s conduct here

and that means any further inquiry “must cease.” Robinson,

519 U.S. at 340.

As to the guideline text, Sargent posits that the term

“aggravated assault” is unambiguously “limited to offenses

involving deadly or dangerous weapons or bodily injury.”

Appellant’s Br. 22. This argument fails for several reasons,

two of which are particularly prominent. First, Sargent relies

on the Model Penal Code, state statutes, non-contemporaneous

dictionary definitions, and treatises to suggest that the

“ordinary meaning” of the term “aggravated assault”

unambiguously excludes assault with intent to commit another

felony. Appellant’s Br. 21. While “the ‘judicial inquiry is

complete’” where “the words of the [text] are unambiguous,”

18

Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (quoting

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)), the

sources Sargent cites are insufficient to support a finding of

unambiguousness that would give way to such finality. Indeed,

as already mentioned, more relevant sources for textual

interpretation, like entries in Black’s Law Dictionary that were

contemporaneous with the initial publication of the Guidelines,

included “assault with intent to commit another crime” within

the umbrella of acceptable definitions for “aggravated assault,”

directly refuting Sargent’s proposed definition.

Second, Sargent’s constrained construction of the

guideline text ignores its context within the larger structure of

the Guidelines, and so necessarily misses the clarity provided

by “the remainder of the . . . scheme[.]” Burwell, 576 U.S. at

492. Opting instead to focus on the structure of Section 111,

Sargent argues that the three tiers for punishment in the

statute—(1) simple assault, (2) assault that involves physical

contact or the intent to commit another felony, and (3) assault

that involves use of a deadly weapon or inflicts bodily injury—

and specifically the statutory scheme’s bifurcation of the third

tier, which carries a maximum penalty of twenty years, and the

first two tiers, which carry significantly lower maximum

penalties of one year and eight years, respectively, “support[]

defining aggravated assault in the guidelines as not including

an assault simply because it involved an intent to commit

another felony.” Appellant’s Br. 22. On our read, this

contention is not relevant to the text, structure, and context of

§ 2A2.2 specifically and is, thus, unpersuasive. Moreover, it is

a weak point when raised against the now decades-long,

congressionally-approved application of § 2A2.2 to offenses

that include assault with intent to commit another felony.

*****

19

For the foregoing reasons, we affirm the District Court’s

sentence on Sargent’s Section 111 conviction.

So ordered.