Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding. D.C. No. 4:08-cr-00027-SEH.
The opinion of the court was delivered by: Goodwin, Circuit Judge
Argued and Submitted June 5, 2009-Portland, Oregon
Before: Alfred T. Goodwin, Diarmuid F. O'Scannlain and Raymond C. Fisher, Circuit Judges.
Johnny Lynn Old Chief ("Johnny Lynn") appeals his 120-month sentence imposed following a jury conviction for aiding and abetting an assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153(a), 113(a)(3). Maynard Old Chief ("Maynard") also appeals his 120-month sentence from a jury conviction for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153(a), 113(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
On December 29, 2007, Johnny Lynn (a.k.a. Johnny Rotten) was holding a party at his residence in the Low Rent neighborhood of the Blackfeet Indian Reservation in Browning, Montana. The party had begun a few days before then and involved numerous individuals, including Johnny Lynn and Maynard, Lundy Red Head ("Red Head"), and Jay Old Chief, and an abundance of alcohol. As witnesses described the events, on the night in question, fights between and among party guests began to break out. Red Head, who described himself as "pretty drunk" at the time, eventually left Johnny Lynn's residence. An argument began in front of Carl La Plant's home, a few houses down from Johnny Lynn's house. Red Head then saw La Plant, accompanied by another individual named Little Garrett Renville, come out of La Plant's home with "two-by-fours," bricks, and rocks. A fight involving Red Head, Jay Old Chief, La Plant and Renville broke out. Johnny Lynn and Maynard both approached the scene at this time. Maynard was carrying a knife, and Jay Old Chief picked up a metal fence post and told Red Head to stay behind him because of Red Head's intoxication. As Maynard continued to advance toward them with the knife in his hand, Jay Old Chief hit Maynard in the head. Red Head described Maynard as falling to the ground momentarily, but getting back to his feet shortly thereafter. Jay Old Chief ran into Red Head's home, and Red Head attempted to follow. To avoid being caught by Maynard and Johnny Lynn, Red Head ducked behind the house at 636 Low Rent. Red Head momentarily believed he was safe, but Johnny Lynn and Maynard had in fact caught up to him. Red Head described Johnny Lynn putting Red Head's hands behind his back while Red Head struggled, and when Red Head raised his arm to protect himself, Maynard stabbed him on his right bicep with his knife. Red Head broke loose from Johnny Lynn's grasp and swung at Maynard with his right arm while Johnny Lynn still had a hold of his left hand. Red Head jerked his body back, and then was stabbed again by Maynard, this time on his left arm and shoulder. Red Head fell to his knees and began screaming for help, and was then stabbed by Maynard for the third time, this time in the neck.
Shortly after the above described events, Officer Edwin Salois answered a call about a disturbance in the neighborhood and arrived at the scene. The armed officer eventually persuaded Maynard to drop the knife, Meanwhile, Johnny Lynn was on top of Red Head, holding him. After Maynard released Red Head, Officer Salois told Maynard to stay on the ground. Several other officers arrived and took Johnny Lynn and Maynard into custody.
On May 6, 2008, Maynard and Johnny Lynn's consolidated jury trial began before Judge Haddon in Great Falls, Montana. After deliberations of less than a day, the jury returned a verdict of guilty to the single count presented. Sentences were imposed on August 25, 2008, and this timely appeal followed.
I. The District Court Did Not Err in Applying the Physical Restraint Enhancement
Johnny Lynn's first argument, in which he is joined by Maynard Old Chief, contends that the restraint necessary to accomplish an assault merges with the assault itself, and the two-level sentencing enhancement they received pursuant to United States ...