Submitted December 18, 2013.
Petition for certiorari filed at, 12/18/2014.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellant (13-1145), (13-1493): Andrew H. Kahl, Assistant U.S. Attorney, Marc Krickbaum, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.
Mersed Dautovic, Defendant - Appellee (13-1145), (13-1493), Pro se, Texarkana, TX.
For Mersed Dautovic, Defendant - Appellee (13-1145), (13-1493): John Keith Rigg, Des Moines, IA.
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
WOLLMAN, Circuit Judge.
A jury found Des Moines, Iowa, Police Officer Mersed Dautovic guilty of willfully depriving Octavius Bonds of the right to be free from the use of unreasonable force, in violation of 18 U.S.C. § § 2 and 242, and knowingly falsifying a police report with the intent to obstruct justice, in violation of 18 U.S.C. § § 2 and 1519. Dautovic was sentenced to 20 months' imprisonment. The government appeals, arguing that the sentence is substantively unreasonable. We reverse and remand for resentencing. We deny Dautovic's conditional cross-appeal, wherein he argues that the district court erred in applying the enhancement for physical restraint and in denying a downward departure.
On September 12, 2008, Erin Evans and her boyfriend, Octavius Bonds, went on a date. Evans is a petite woman, standing five feet, four inches tall. Bonds, who at the time weighed between 230 and 240 pounds, is approximately six feet, eight inches tall. Evans and Bonds were in their early twenties, and neither had a criminal history. The young couple had gone to the movies that night, and they left the theater around midnight. Evans drove her father's two-door red car. The front passenger seat was broken, so Bonds sat in the back seat. Traffic near the theater was congested, and a light rain was falling.
At 11:00 p.m. on September 12, 2008, Dautovic and officer John Mailander began a four-hour shift working security detail at an apartment complex in Des Moines, Iowa. Both men were wearing police uniforms, and Dautovic drove a marked police car. Shortly after midnight, Dautovic and Mailander left their patrol area to respond to a call approximately five miles away. Dautovic activated the car's emergency lights and siren and sped toward the call. While en route, they approached Evans's car in the left lane. The car did not move to the right lane immediately. Mailander testified that the car yielded less than five seconds after the police car approached. Evans testified that she could not pull over immediately because there were cars in the right lane, but that she pulled into a left turn lane as soon as she was able to do so.
Shortly thereafter, dispatch reported that other officers had responded to the call and no further assistance was needed. Dautovic and Mailander pulled into a gas station parking lot and decided to stop Evans for failure to yield to an emergency vehicle. When her car passed by the lot, Dautovic activated the emergency lights and siren, and Evans pulled over to the right curb lane immediately.
Dautovic exited the squad car and quickly approached the driver's side of Evans's car. Evans began rolling down her window, and as she was doing so, Dautovic yanked open the driver's side door. According to Evans, Dautovic yelled, " Are you from America?" He asked Evans if she was stupid and " didn't [she] know [she] was supposed to yield to the right when [she saw] an emergency vehicle approaching[?]" Evans testified that ...