FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 28, 2019 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross- Appellant, Nos. 18-4081 & 18-4099 v. MARK OLIC PORTER, Defendant - Appellant/Cross- Appellee. _________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CR-00527-DB-1) _________________________________ Daphne Oberg, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender; Scott Keith Wilson and Bretta Pirie, Assistant Federal Public Defenders, District of Utah, on the briefs), Salt Lake City, Utah, for the Defendant - Appellant/Cross-Appellee. Max Lapertosa, Attorney (Eric S. Dreiband, Assistant Attorney General; Erin H. Flynn, Attorney, U.S. Department of Justice, with him on the brief), Washington, D.C. for the Plaintiff - Appellee/Cross-Appellant. _________________________________ Before MATHESON, EBEL, and PHILLIPS, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________ Mark Olic Porter shouted racial epithets at Lucas Waldvogel, a seven-year-old African American who lived in Mr. Porter’s apartment complex. After hearing Mr. Porter’s language, the boy’s father, Michael Waldvogel, confronted Mr. Porter, who then assaulted Mr. Waldvogel with a stun cane. Shortly thereafter, Mr. Waldvogel and his family moved out of the complex. A jury convicted Mr. Porter of interfering with Mr. Waldvogel’s housing because of Mr. Waldvogel’s race, a violation of the Fair Housing Act, 42 U.S.C. § 3631. The district court sentenced Mr. Porter to nine months in prison. He appeals his conviction. The Government cross-appeals his sentence. On direct appeal, Mr. Porter first argues the evidence was insufficient to show he assaulted Mr. Waldvogel because of his race. Based on our review of the trial evidence, we disagree and hold that a reasonable jury could find Mr. Porter guilty beyond a reasonable doubt. Mr. Porter also argues the district court plainly erred by allowing the prosecution’s opening statement and closing arguments, the trial evidence, and the jury instructions to make it likely that the jury convicted him for his actions against Lucas rather than Michael Waldvogel, thereby constructively amending the indictment. We disagree and hold that the presentations at trial clearly identified Michael Waldvogel as the alleged victim. On cross-appeal, the Government argues procedural sentencing error. It first argues the district court miscalculated the advisory sentencing range under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) because the evidence showed 2 that Mr. Porter committed an aggravated assault rather than a simple assault against Mr. Waldvogel. We disagree, holding the district court’s implicit finding that Mr. Porter did not intend to inflict bodily harm was not clearly erroneous. The Government alternatively argues the district court erred when it failed to apply a base level of 10 under the applicable sentencing Guideline when Mr. Porter’s offense involved “the use or threat of force against a person.” We agree with the alternative argument and hold the district court erred in calculating Mr. Porter’s sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), we affirm Mr. Porter’s conviction and remand for ...
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