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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 90-8375
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY CLAYTON KLEINEBREIL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
(July 7, 1992)
Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Convicted on marijuana (two counts) and assault of a federal
officer charges, Troy Clayton Kleinebreil bases error on the denial
of his motion to suppress, the jury instruction on his defense to
the assault charge, and the application of the Sentencing
Guidelines.2 We AFFIRM the convictions; but, because the district
court double-counted adjustments to the group offense levels for
1
Senior Circuit Judge of the Eighth Circuit, sitting by
designation.
2
Kleinebreil also appealed from the denial of his motion for a
hearing pursuant to Batson v. Kentucky, 476 U.S. 79 (1986),
concerning the government's peremptory strikes of two black jurors.
We remanded for a Batson hearing; and, after the hearing, the
district court held that the strikes were not racially motivated.
Kleinebreil has not appealed from that ruling; and this issue is,
therefore, abandoned.

the marijuana and assault convictions, we VACATE the sentences and
REMAND for resentencing.
I.
In 1988, more than a year prior to his arrest, the Austin
Police Department began investigating a marijuana organization
believed to include Kleinebreil, and to be shipping marijuana in
rental cars from Austin to Atlanta, Georgia. That December, a
trained dog alerted to a suitcase that was later picked up by
Kleinebreil at the Austin airport baggage claim area. Kleinebreil
consented to a search of the bag, but no contraband was found.
Later that month, Austin police officers learned that Jill Jacobs,
Kleinebreil's common-law wife, had made a $1,056 cash purchase of
first class, round-trip airfare between Austin and Atlanta. The
ticket was issued in the name of Tim Jacobs. Surveillance was
established at the Austin airport; and, when the flight arrived,
the officers recognized Kleinebreil from their earlier encounter.
Kleinebreil agreed to allow the officers to search his carry-on
bag, which contained over $76,000 in cash. He first denied
ownership of the money, stating that someone on the airplane must
have put it in his bag; later, he said that he might be "going to
buy a race car for a friend". The cash was seized, and Kleinebreil
was given a receipt.
On the morning of May 10, 1989, during surveillance at the
Austin airport, officers observed Kleinebreil, driving a Trans-Am,
pick up Danny Cook. The surveillance team followed the Trans-Am to
a nearby fast-food restaurant. After driving behind the
- 2 -

restaurant, the Trans-Am left the parking lot, followed by a
Chevrolet rental car. Both cars stopped at a gas station, where a
Hispanic male was observed talking to Kleinebreil and Cook. When
the cars left, the Trans-Am, driven by Kleinebreil, was followed by
the rental car, driven by Cook. After the Trans-Am turned onto
another road, the rental car continued eastbound.3
The rental car was stopped east of Austin near Bastrop; and
Cook consented to a search of the vehicle. After approximately 100
pounds of marijuana were found in the trunk, Cook was arrested.
Fearing that Kleinebreil might learn of Cook's arrest and destroy
evidence of drug-trafficking, DEA agents, Austin police officers,
and sheriff's deputies assigned to an Organized Crime Task Force
obtained a warrant that night to search Kleinebreil's home.
The warrant was signed by the magistrate around 10:30 p.m.
Approximately an hour later, when Kleinebreil and his wife were in
bed, the agents and officers went to his home to execute the
warrant. They had previously received information that Kleinebreil
had a gun. When they arrived at his residence, one of the master
bedroom windows at the front of the house was open. The officers
testified that they knocked and announced their purpose two or
three times, but received no response.4 After breaking down the
3
As stated, the organization under investigation was believed
to be using rental cars to transport marijuana from Austin east to
Atlanta.
4
DEA Agent Childress, who interviewed Jill Jacobs after the
shooting incident described infra, testified that she told him that
she heard the officers shouting "Police!" "right before the gunfire
started." Jacobs testified, however, that she heard no knocks at
the door, and didn't hear anyone say "police" until after the
- 3 -

front door, the officers entered the residence; and Kleinebreil
began shooting at them. In the gunfire exchange that followed,
Deputy Sheriff Lewis was shot in the hand; Austin police officer
Medlicott, in the chest (fortunately, he was wearing a bullet-proof
vest); and Kleinebreil, in his right arm and shoulder area.
During the subsequent search of the residence, officers found
two guns, three grams of marijuana, a radio frequency detector,5
and a key and receipt for a mini-warehouse. They also found
marijuana residue in the trunk of Kleinebreil's car. A warrant was
then obtained for the mini-warehouse, where the officers found
marijuana debris and packing material, and a magazine with
Kleinebreil's name and address on it.
In a four-count indictment, Kleinebreil was charged with
conspiracy to possess with intent to distribute marijuana, in
violation of 21 U.S.C. �� 841(a)(1) and 846 (count one); possession
with intent to distribute marijuana, in violation of 21 U.S.C. �
841(a)(1) (count two); assault of a federal officer, in violation
of 18 U.S.C. � 111(a)(1) and (b) (count three); and using a firearm
during and in relation to the drug trafficking crimes charged in
counts one and two, in violation of 18 U.S.C. � 924(c)(1) (count
four). He was convicted on the first three counts, acquitted on
the fourth. He received, inter alia, consecutive sentences of 30
shooting ended.
5
DEA Agent Childress testified that radio frequency detectors
are commonly used in narcotics trafficking to detect body wires
worn by police or informants.
- 4 -

months of imprisonment each on counts one and two, and 91 months on
count three, for a total of 151 months.
II.
Kleinbebreil challenges the denial of his suppression motion,
the jury instruction on the assault charge, and the application of
the Guidelines.
A.
Kleinebreil moved prior to trial to suppress statements he
made and evidence seized from him at the Austin airport in December
1988, as well as the evidence seized from his home and car, and the
mini-warehouse. After a hearing, the district court denied the
motion; and Kleinebreil challenges that ruling.6
While we review questions of law de novo, "[i]n
reviewing a trial court's ruling on a motion to
suppress based on live testimony at a suppression
hearing, the trial court's purely factual findings
must be accepted unless clearly erroneous, or
influenced by an incorrect view of the law, and the
evidence must be viewed most favorabl[y] to the
party prevailing below."
United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.),
cert. denied, 495 U.S. 923 (1990) (quoting United States v.
Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)).
6
As for the airport, Kleinebreil only summarizes his
allegations in the motion to suppress; he does not present any
arguments or authorities regarding that issue, contrary to Fed. R.
App. P. 28(a)(4) (version in effect until 12/1/91) ("The argument
shall contain the contentions of the appellant with respect to the
issues presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.").
Accordingly, we do not address this aspect of the suppression
issue. See, e.g., United States v. Valdiosera-Godinez, 932 F.2d
1093, 1099 (5th Cir. 1991) (issue listed in statement of issues,
but not argued in brief, considered waived).
- 5 -

1.
With respect to the search of his home, Kleinebreil concedes
that, in light of the events earlier on the day the warrant was
issued, there was probable cause to believe that he was involved in
drug-trafficking; but he contends that the search warrant affidavit
was insufficient to demonstrate probable cause to believe that any
evidence of such activities could be found in his home.7 According
to Kleinebreil, the only specific information indicating that such
evidence could be found in his home was an informant's statement
that drugs were there a year earlier.
We engage in a two-step review of the trial
court's denial of [Kleinebreil's] motion to
suppress. The first step requires us to decide
whether
the
good-faith
exception
to
the
exclusionary rule applies. If the good-faith
exception applies, we need not reach the question
of probable cause.
United States v. Webster, 960 F.2d 1301, 1307 (5th Cir. 1992)
(citations omitted).8 In United States v. Leon, 468 U.S. 897
(1984), the Supreme Court held that, even if an affidavit upon
which a search warrant is based is insufficient to demonstrate
probable cause, evidence seized by law enforcement officers acting
7
In his motion to suppress, Kleinebreil contested the search of
his car on the grounds of lack of a warrant or probable cause.
Because the warrant for the search of his home authorized the
search of "all vehicles on the curtilage thereof", the legality of
the vehicle search is necessarily included in our discussion of the
legality of the search of his home.
8
In district court, the government relied on the good-faith
exception; and after the suppression hearing, the court took the
motion to suppress under advisement. Although the record reflects
that the district court denied the motion, the record does not
reflect whether the court, in doing so, relied on the good-faith
exception or a finding of probable cause.
- 6 -

in objectively reasonable good-faith reliance upon the warrant is
admissible. 468 U.S. at 922-23. "Issuance of a warrant by a
magistrate normally suffices to establish good faith on the part of
law enforcement officers who conduct a search pursuant to the
warrant." United States v. Craig, 861 F.2d 818, 821 (5th Cir.
1988). There are four exceptions to this general rule; but only
the third is at issue here: whether the warrant was based on an
affidavit "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable". Leon, 468
U.S. at 923 (citation omitted).9
The eight-page affidavit, prepared by DEA Special Agent
Childress, states in considerable detail that, based upon his
experience and training, individuals who deal in illegal controlled
substances often keep evidence of that activity in their homes.
The affidavit provides information furnished by a confidential
9
The four exceptions are:
Suppression ... remains an appropriate remedy
[1] if the magistrate or judge in issuing a warrant
was misled by information in an affidavit that the
affiant knew was false or would have known was
false except for his reckless disregard of the
truth[;] ... [2] in cases where the issuing
magistrate wholly abandoned his judicial role
...[;] [3] [if] a warrant [is] based on an
affidavit "so lacking in indicia of probable cause
as to render official belief in its existence
entirely unreasonable[]"; [and] [4] ... [where
the] warrant [is] so facially deficient--i.e., in
failing to particularize the place to be searched
or the things to be seized--that the executing
officers cannot reasonably presume it to be valid.
Leon, 468 U.S. at 923 (quotations and citations omitted).
- 7 -

informant, and relates at length the surveillance activities
involving Kleinebreil, including the activities on the day the
warrant was applied for and received. At the suppression hearing,
Agent Childress testified that the officers had feared that
Kleinebreil would learn of Cook's arrest and begin hiding,
transferring, or destroying evidence.10 Although some of the
information contained in the affidavit concerns events that
occurred as much as a year prior to issuance of the warrant, the
affidavit "clearly shows a long-standing, ongoing pattern of
criminal activity," continuing through the date of issuance of the
warrant. See Craig, 861 F.2d at 822. Moreover, the type of
evidence sought -- records of drug-trafficking activity -- "is of
the sort that can reasonably be expected to be kept for long
periods of time in the place to be searched." Id. at 823.
We conclude that the affidavit contained sufficient "indicia
of probable cause". Accordingly, the officers' good-faith reliance
on the warrant was objectively reasonable. Because the good-faith
exception to the exclusionary rule applies, we do not reach the
issue of probable cause.11
10
As discussed supra, Cook was arrested east of Austin in a
rental car on May 10, after being seen that day with Kleinebreil,
including being picked up at the airport by him.
11
Even under that more exacting standard, in reviewing the
sufficiency of an affidavit for a search warrant, our duty "is
simply to ensure that the magistrate had a `substantial basis for
... conclud[ing]' that probable cause existed." Illinois v. Gates,
462 U.S. 213, 238-39 (1983) (quoting Jones v. United States, 362
U.S. 257, 271 (1960)) (alteration in Gates). "The task of the
issuing magistrate is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in the
affidavit before him, including the `veracity' and `basis of
- 8 -

2.
With respect to the mini-warehouse, Kleinebreil maintains that
the search was improper for three reasons: the government failed
to prove that a valid warrant existed; there was no probable cause
to believe that evidence could be found at the warehouse; and, any
evidence supporting probable cause was the fruit of the illegal
search of his home. His first contention is meritless. The record
establishes that a search warrant was issued for the warehouse; and
a copy of that warrant is attached to the government's motion to
supplement the record on appeal. The third contention is equally
meritless, because we have held that the search of the home was
legal.
The evidence seized in the search of Kleinebreil's home
included a key and a receipt for the warehouse. The affidavit for
the warrant for the search of the warehouse included the
information from the previous affidavit for the search of the
house, supplemented by a description of the events that occurred
during the search of the house, and the evidence seized there.
Under Leon, such information constitutes more than sufficient
indicia of probable cause to justify the officers' good-faith
reliance on the warrant. Therefore, the district court did not err
in refusing to suppress the evidence.
knowledge' of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place." Id. at 238. A magistrate's probable
cause determination is entitled to "great deference". United
States v. Marbury, 732 F.2d 390, 395 (5th Cir. 1984).
- 9 -

B.
In issue on the assault of a federal officer charge, 18 U.S.C.
� 111, was whether Kleinebreil believed that the persons who
entered his home were law enforcement officers. Along that line,
the jury was instructed that Kleinebreil
would not be guilty of an assault if the evidence
leaves you with a reasonable doubt concerning
whether [Kleinebreil] knew the victim to be a
Federal officer and acted as he did because of a
reasonable, good faith belief that [Kleinebreil]
needed to defend himself against an assault by a
private citizen.
Kleinebreil objected to the charge, because it did not include
requested language on the right to use deadly force under Texas
law. He acknowledges that the given instruction is consistent with
the Fifth Circuit Pattern Jury Instructions; nevertheless, he
maintains that the district court should have instructed the jury
on Texas law governing his rights to use deadly force to defend
himself, his common-law wife, and his property, in order to provide
the jurors with a framework for determining whether the force used
would have constituted an assault against a private citizen in
Texas.12
12
One of the requested instructions follows:
You are instructed, that [Texas] law provides
that a person is justified in using deadly force
against another to protect his home and family,
when and to the degree, he reasonably believes the
deadly force is immediately necessary to prevent
the other's imminent commission of arson, burglary,
robbery, aggravated robbery or theft during the
nighttime, or criminal mischief during the
night[t]ime.
- 10 -

Refusal to give requested instructions is reviewed for abuse
of discretion. E.g., United States v. Sellers, 926 F.2d 410, 414
(5th Cir. 1991). A district court may refuse "to give a requested
instruction which incorrectly states the law, is without foundation
in the evidence, or is stated elsewhere in the instructions."
United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992). "The
refusal to give a requested jury charge is reversible error only if
the instruction was substantially correct, was not substantially
covered in the charge delivered to the jury, and it concerned an
important issue so that failure to give it seriously impaired
defendant's ability to present a given defense." Id.
The district court correctly instructed the jury on
Kleinebreil's defense to the assault charge. His requested, more
specific instructions were covered by the charge. The question, in
part, is whether he believed that he "needed to defend himself
against an assault by a private citizen", not when and how he could
do so.13 The district court did not err in refusing the requested
instructions.
C.
The procedure for sentencing on multiple counts of conviction
is contained in Chapter 3, Part D of the Sentencing Guidelines:14
13
Moreover, the requested instruction is not "substantially
correct"; there is no authority for such application of Texas law
to the federal offense created by 18 U.S.C. � 111. Cf. United
States v. Feola, 420 U.S. 671, 684 n.18 (1975); United States v.
Lopez, 710 F.2d 1071, 1073 (5th Cir. 1983).
14
All citations to the Guidelines are to the 1989 Guidelines
Manual, in effect when Kleinebreil was sentenced in June 1990. See
United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.), cert.
- 11 -

(1) group the convictions into "Groups of Closely-Related Counts",
by applying the rules of U.S.S.G. � 3D1.2; (2) determine the
offense level applicable to each group; and (3) determine the
combined offense level, by adding points prescribed by the table in
� 3D1.4 (as explained in note 16, infra) to the offense level of
the group with the highest total. U.S.S.G. � 3D1.1.
In the presentence report (PSR), the probation officer grouped
the marijuana-related convictions (counts one and two); the assault
conviction constituted a separate group. The recommended combined
offense level was calculated as follows.
The base offense level for the marijuana group, based on 94
pounds of marijuana, is 20.15 Added to that were three-level
increases each for Kleinebreil's supervisory role, � 3B1.1(b), and
for an official victim, � 3A1.2, for a group total of 26. The base
offense level for the aggravated assault group (count three) is 15.
U.S.S.G. � 2A2.2. Five levels were added for discharge of a
firearm, � 2A2.2(b)(2); four, for the victim's serious bodily
injury, � 2A2.2(b)(3)(B); and three each, for an official victim,
� 3A1.2, and supervisory role, � 3B1.1(b), for a group total of 30.
The combined offense level was computed by taking the offense
level applicable to the group with the highest offense level, 30
(the assault group), and increasing it by two levels, pursuant to
denied, ___ U.S. ___, 112 S. Ct. 346 (1991).
15
Although there was testimony that 104 pounds of marijuana were
seized from the rental car driven by Cook, the PSR used 94 pounds
in calculating the sentence. In any event, the base offense level
of 20 would not change if calculated on the basis of 104 pounds.
U.S.S.G. � 2D1.1(c)(12).
- 12 -

the table in � 3D1.4, for a total of 32.16 The probation officer
did not apply an adjustment for acceptance of responsibility,
stating that Kleinebreil had not admitted guilt or accepted
responsibility for his conduct. A total offense level of 32, with
a criminal history category of I, carries a sentencing range of
121-151 months of imprisonment. U.S.S.G., Sentencing Table. The
probation officer found no basis for departure from the Guidelines.
Kleinebreil did not file written objections to the PSR until
the day of the sentencing hearing, objecting only to the victim-
related adjustment for the marijuana group and to the role-related
adjustment for the assault group; he maintained that the adjusted
offense level for the marijuana group should be only 23, and for
the assault, only 27. (This, of course, would result in a lesser
sentencing range.) And, at the hearing, he objected to the
official victim-related increase for the marijuana group, and to
denial of the reduction for acceptance of responsibility. The
district court adopted the PSR recommendations.
On appeal, Kleinebreil contends that the district court
misapplied the Guidelines in five respects: (1) imposition of
consecutive sentences on counts one and two; (2) denial of a
reduction for acceptance of responsibility; (3) an increase for an
official victim as to the marijuana group; (4) an increase for the
16
The table specifies that two levels are to be added for two
"units". The number of units was computed by counting as one unit
the group with the highest offense level, and counting as one
additional unit each group that is either equally serious or only
from one to four levels less serious (the marijuana group level of
26 is 4 levels less than the assault group level of 30). U.S.S.G.
� 3D1.4(a).
- 13 -

assault group for his supervisory role in the offense; and (5) an
increase for that group for an official victim. "In reviewing a
challenge to a sentence under the Guidelines, we must accept the
factual findings of the district court unless clearly erroneous,
but we fully review its application of the Guidelines for errors of
law." United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991).
(Kleinebreil is not challenging any findings of fact.) As noted
below, some of these grounds were not raised in the district court;
but, because the sentence must be vacated on grounds that were, we
address each of the issues for the guidance of the district court
on remand, rather than limiting those not preserved to the more
narrow, plain error review. See United States v. Brunson, 915 F.2d
942, 944 (5th Cir. 1990).

1.
Kleinebreil asserts that 28 U.S.C. � 994(l)(2) prohibits
consecutive sentences for conspiracy to commit an offense and for
an offense that was the sole object of that conspiracy. Because he
did not so object in district court, we would normally review only
for plain error.
The duties of the Sentencing Commission are listed in 28
U.S.C. � 994; the part Kleinebreil relies on states that the
Sentencing Commission "shall insure that the guidelines ... reflect
. . . the general inappropriateness" of consecutive sentences under
such circumstances. 28 U.S.C. � 994(l)(2). The Guidelines carry
this out by requiring that when a defendant is convicted of one
count for conspiracy and another count for the substantive offense
- 14 -

that was the sole object of the conspiracy, the counts will be
grouped together. U.S.S.G. � 3D1.2, comment. (n.4). Moreover, the
procedures for sentencing on multiple counts of conviction specify
that sentences are to run concurrently, "except to the extent
otherwise required by law." U.S.S.G. � 5G1.2(c). Imposition of
consecutive sentences is authorized, however, in one limited
situation:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or
more of the other counts shall run consecutively,
but only to the extent necessary to produce a
combined sentence equal to the total punishment.
In all other respects sentences on all counts shall
run concurrently, except to the extent otherwise
required by law.
U.S.S.G. � 5G1.2(d).
Count three (assault) carries the highest statutory maximum,
120 months. 18 U.S.C. � 111. The sentence imposed on that count
was 91 months, less than the total punishment of 121-151 months.
The district court also sentenced Kleinebreil to 30 months
imprisonment each on the two marijuana counts. Because the
sentence imposed on count three was less than the total punishment,
the district court ordered the sentences on the marijuana counts to
run consecutively. This was "necessary to produce a combined
sentence equal to the total punishment", � 5G1.2(d). But, on
remand, recalculation of the group offense levels and the combined
offense level may change the total punishment figure, resulting in
� 5G1.2 again controlling whether the sentences should run
consecutively or concurrently.
- 15 -

2.
Kleinebreil refused to accept responsibility for the assault,
because state charges for attempted capital murder of state
officers were pending against him for the same conduct. Although
the district court found that he had accepted responsibility for
the two marijuana convictions, it did not grant him a two-level
reduction in his offense level under � 3E1.1. Kleinebreil contends
that the failure to grant the reduction on the offense level for
the marijuana group penalized him for exercising his Fifth
Amendment privilege against self-incrimination, and that he should
have received a reduction in the offense level for that group
before the combined offense level based on both groups was
computed. For this and his other challenges to the offense level
calculations, discussed infra, Kleinebreil contends that the
increases caused a greater combined offense level, resulting in an
increased sentencing range.17
The offense level may be reduced two levels for a defendant
who "clearly demonstrates a recognition and affirmative acceptance
of personal responsibility for his criminal conduct ...." U.S.S.G.
� 3E1.1(a).
17
For example, if the two level acceptance of responsibility
reduction had been applied to the marijuana group offense level
(26), the adjusted offense level would have been 24; and, because
this would have been more than four levels less serious than the
assault group offense level (30), it would have resulted in a �
3D1.4 adjustment of only one-half a unit, with a final combined
offense level of 31, instead of 32, and a concomitant sentencing
range of 108-135, instead of 121-151, months. U.S.S.G. � 3D1.4 &
Sentencing Table; see note 16, supra.
- 16 -

The sentencing judge is in a unique position to
evaluate a defendant's acceptance of
responsibility. For this reason, the determination
of the sentencing judge is entitled to great
deference on review and should not be disturbed
unless it is without foundation.
U.S.S.G. � 3E1.1, comment. (n.5). And, "the sentencing court's
factual determinations on this matter are entitled to even greater
deference than that accorded under a clearly erroneous standard of
review." United States v. Mourning, 914 F.2d 699, 705 (5th Cir.
1990).
The plain wording of the Guidelines is contrary to
Kleinebreil's proposed application of � 3E1.1. The Application
Instructions in Chapter One, Part B, listing the steps to be
followed in applying the Guidelines, provide that an adjustment for
acceptance of responsibility, if appropriate, � 1B1.1(e), is to be
applied after the offense levels for groups of multiple counts and
the resulting combined offense level have been computed, �
1B1.1(d). See U.S.S.G. � 1B1.1(a)-(i). They do not permit an
acceptance of responsibility adjustment to be first applied to each
separate group.18 See United States v. McDowell, 888 F.2d 285, 293
18
Other portions of the Guidelines also support our
interpretation. The Introductory Commentary to Chapter Three, Part
D (Multiple Counts), states that "[t]he single, `combined' offense
level that results from applying these rules is used, after
adjustment pursuant to the guidelines in subsequent parts [i.e.,
Part E - Acceptance of Responsibility], to determine the sentence."
The commentary to � 3D1.1 (Procedure for Determining Offense Level
on Multiple Counts) states: "This section outlines the procedure
to be used for determining the combined offense level. After any
adjustments from Chapter 3, Part E (Acceptance of Responsibility)
... are made, this combined offense level is used to determine the
guideline sentence range." U.S.S.G. � 3D1.1, comment. (backg'd).
See also � 3D1.3(a) (offense level applicable to grouped counts is
"determined in accordance with Chapter Two and Parts A, B, and C of
- 17 -

(3d Cir. 1989) ("adjustment for acceptance of responsibility ...
should be made only after the counts are combined"; � 1B1.1(e)
"does not contemplate calculating acceptance of responsibility for
each offense").
Kleinebreil's
Fifth
Amendment
contention
is
equally
unavailing. This court rejected a similar argument in United
States v. Mourning. Mourning pleaded guilty to money laundering,
and accepted responsibility for that conduct, but refused to accept
responsibility for related criminal conduct not charged in the
count of conviction. He contended that the district court's
refusal to grant him a � 3E1.1 reduction penalized him for
maintaining his innocence on the uncharged criminal conduct. 914
F.2d at 705. We disagreed, holding that, "before a defendant is
entitled to a reduction for acceptance of responsibility, he must
first accept responsibility for all of his relevant criminal
conduct." Id. (emphasis added). After considering the constraints
of the Fifth Amendment, we concluded:
[A]ffording a possibility of a more lenient
sentence does not compel self-incrimination. To
the extent the defendant wishes to avail himself of
this provision, any "dilemma" he faces in assessing
his criminal conduct is one of his own making. The
government is permitted to reward contrition. This
is not the same as compelling self-incrimination.
Chapter Three"); � 3D1.5, comment. ("The combined offense level is
subject to adjustments from Chapter Three, Part E (Acceptance of
Responsibility) ....").
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Id. at 707 (emphasis in original) (citation omitted). See also
United States v. Alfaro, 919 F.2d 962, 968 (5th Cir. 1990).19
The Guidelines do not authorize a � 3E1.1 reduction unless the
district court finds that the defendant has accepted responsibility
for all of his criminal conduct. Because Kleinebreil did not
accept responsibility for the assault, the district court did not
err in refusing to grant the reduction.
3.
Kleinebreil maintains that, because his marijuana group
convictions are victimless offenses, the district court erred in
assessing an official victim increase in the offense level for that
19
The Tenth Circuit reached the same conclusion in United States
v. Ross, 920 F.2d 1530 (10th Cir. 1990). Ross claimed that he had
accepted responsibility for a drug-trafficking charge, but was
denied a reduction because he did not also accept responsibility
for a firearms charge. Id. at 1537. He contended that the
sentencing scheme required him to plead guilty to all charges
against him in order to obtain the benefit of the reduction, in
violation of his Fifth Amendment right against self-incrimination
and his Sixth Amendment right to a jury trial. Id. The Tenth
Circuit disagreed, stating:
[T]he denial of a downward adjustment under � 3E1.1
does not constitute a penalty or an enhancement of
sentence. There is a difference between increasing
the severity of a sentence for failure to
demonstrate remorse and refusing to grant a
reduction from the prescribed base offense level."
Id. (citation omitted). Accord United States v. Ignancio Munio,
909 F.2d 436, 439-40 n.4 (11th Cir. 1990), cert. denied, ___ U.S.
___, 111 S. Ct. 1393 (1991); United States v. Gordon, 895 F.2d 932,
936-37 (4th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 131
(1990); United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.
1989). Contra United States v. Frierson, 945 F.2d 650, 658 (3d
Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1515 (1992);
United States v. Piper, 918 F.2d 839, 840-41 (9th Cir. 1990);
United States v. Oliveras, 905 F.2d 623, 626 (2d Cir. 1990); United
States v. Perez-Franco, 873 F.2d 455, 463 (1st Cir. 1989).
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group, ultimately resulting in a higher combined offense level and
greater sentencing range.
The three-level increase for an official victim applies only
if "the offense of conviction was motivated by the fact that the
victim was a law enforcement" officer. U.S.S.G. � 3A1.2, comment.
(n.4). It "does not apply when the only victim is an organization,
agency, or the government." Id., comment. (n.1). The government
contends that the adjustment was proper because the "offense of
conviction" (the marijuana counts) includes the assault during the
marijuana-related search (including the resulting discovery of
marijuana), which would not have occurred if Kleinebreil had not
been involved in drug trafficking.
The government asserts correctly that adjustments for the
victim's status are to be determined on the basis of all relevant
conduct, as defined in U.S.S.G. � 1B1.3. But, the Guidelines would
allow an increase in the offense level for the marijuana group
based on the official status of the assault victims only if the
assault and marijuana counts comprised a single group.
As discussed in part, the Guidelines require that "[a]ll
counts involving substantially the same harm shall be grouped
together into a single Group." U.S.S.G. � 3D1.2. One of the
circumstances in which counts are considered to involve
substantially the same harm is "[w]hen one of the counts embodies
conduct that is treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of the
counts." U.S.S.G. � 3D1.2(c). This provision is designed to
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prevent double-counting. U.S.S.G. � 3D1.2, comment. (n.5).
Moreover, grouping under � 3D1.2(c) is appropriate "only if the
offenses are closely related". Id. Because the marijuana offenses
were not "closely related" to the assault, the district court
placed the assault count in a separate group. As discussed in part
II.C.5., infra, the official victim-related increase in the offense
level for the assault group was proper. However, because the
assault count was not grouped with the marijuana counts, the
district court erred in similarly increasing the offense level for
the marijuana convictions.
4.
Kleinebreil contends that, because he was the sole participant
in the assault, the district court improperly increased the offense
level for the assault group based upon his supervisory role in the
marijuana offenses, resulting, again, in a higher combined offense
level.20 A three-level increase in the offense level is permitted
"[i]f the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive." U.S.S.G. �
3B1.1(b). Such an adjustment "is anchored to the transaction
leading to the conviction." United States v. Barbontin, 907 F.2d
1494, 1498 (5th Cir. 1990). The "transaction leading to the
conviction", however, is broader than the offense charged, and
includes the "contours of the underlying scheme itself." United
20
This objection is included in Kleinebreil's written objections
belatedly filed on the day of the sentencing hearing and attached
to the PSR.
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States v. Mir, 919 F.2d 940, 945 (5th Cir. 1990). "All
participation firmly based in that underlying transaction is ripe
for consideration in adjudging a leadership role under section
3B1.1." Id.
As discussed in part II.C.3., supra, the Guidelines do not
permit characteristics of one count to be used to adjust the
offense level for another count unless those counts are in the same
group. The district court properly assessed a three-level increase
in the marijuana group offense level for Kleinebreil's supervisory
role. But, because the assault and marijuana convictions are in
separate groups, Kleinebreil's role in the marijuana transactions
cannot be used to similarly increase the assault group offense
level.
5.
Finally, Kleinebreil maintains that, because the victim's
official status was an essential element of the offense (assault)
charged in count three, the district court erred in assessing an
official victim-related increase in the assault group offense
level. Kleinebreil did not raise this issue in the district court.
Therefore, again, it is one we would normally review only for plain
error.
Kleinebreil's contention fails to distinguish between elements
of an offense and specific offense characteristics under the
Guidelines. Because there is not a separate guideline for each
federal offense, the Guidelines state that the court is to use the
offense guideline section "most applicable to the offense of
- 22 -

conviction (i.e., the offense conduct charged in the count of the
indictment or information of which the defendant was convicted)".
U.S.S.G. � 1B1.2(a).
The Statutory Index in Appendix A lists two offense guideline
sections for 18 U.S.C. � 111: � 2A2.2 ("Aggravated Assault") and
� 2A2.4 ("Obstructing or Impeding Officers"). The base offense
level for � 2A2.4 specifically incorporates the official status of
the victim. However, � 2A2.4 contains the following cross-
reference: "If the defendant is convicted under 18 U.S.C. � 111
and the conduct constituted aggravated assault, apply � 2A2.2
(Aggravated Assault)." U.S.S.G. � 2A2.4(c)(1). The Application
Notes to � 2A2.4 state that the official victim assessment should
not be applied "unless subsection (c) requires the offense level to
be determined under �2A2.2." U.S.S.G. � 2A2.4, comment. (n.1)
(emphasis added).
Kleinebreil was convicted under 18 U.S.C. � 111, and his
conduct constituted aggravated assault. Accordingly, pursuant to
the cross-reference in � 2A2.4, � 2A2.2 (Aggravated Assault)
applies. Unlike the base offense level for � 2A2.4, the base
offense level for � 2A2.2 does not reflect the fact that the victim
was a government official. See U.S.S.G. � 3A1.2, comment. (n.3)
(the only offense guideline in Chapter Two, Part A, that
specifically incorporates the official status of the victim is �
2A2.4 ("Obstructing or Impeding Officers")). Therefore, the
district court properly increased the assault group offense level
for an official victim.
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6.
Neither party has questioned the four-level increase in the
assault group offense level, based upon serious bodily injury, �
2A2.2(b)(3)(B). Nevertheless, because this case is being remanded
for resentencing, it is appropriate to note a case recently decided
by another panel of this court, United States v. Moore, 958 F.2d
646 (5th Cir. 1992). When Houston police officers and DEA and
Customs Agents attempted to execute a search warrant, a Houston
officer was shot by Moore. Moore was convicted of aggravated
assault under 18 U.S.C. � 111; and his base offense level was
increased by four levels, because the victim sustained serious
bodily injury. Moore argued that the "victim" contemplated by �
2A2.2(b)(3) is the "victim" contemplated by 18 U.S.C. � 111: a
federal agent. He maintained that the adjustment was inapplicable,
because no federal agents were injured. The panel agreed, holding
that "[t]here is no justification for adding four points when the
only person injured was ... the city police officer." Id. at 651.
Count three charged Kleinebreil with assault of the federal
officers, in violation of 18 U.S.C. � 111(a)(1) and (b). The PSR,
adopted by the district court, stated that the four-level increase
was applicable because "[t]wo federal officers were shot by the
defendant and one sustained serious bodily injury." According to
the record, however, the injured officers were Clayton County
Deputy Sheriff Lewis and Austin Police Officer Medlicott.21
21
Lewis sustained permanent damage to his right hand; Medlicott
was shot in the chest, but, as noted, escaped serious injury
because he was wearing a bullet-proof vest.
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Because this issue was neither raised nor briefed in this
court or in the district court, we do not comment on the
applicability vel non of Moore to this case, but instead merely
cite it for consideration on remand.
III.
The judgment of conviction is AFFIRMED. The sentences are
VACATED, and the case is REMANDED for resentencing.
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