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In order to apply the official victim enhancement under U.S.S.G. § 3A1.2(c)(1), the court must find that ?the defendant or a person for whose conduct the defendant is otherwise accountable . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom.? In United States v. Anderson, a police officer was shot during the course of a drug bust. No. 09-6318, (6th Cir. Mar. 24, 2011) (unpublished). One of the defendants appealed and won because the district court did not make findings of fact sufficient to support a finding that either defendant actually "knew or had reasonable cause to believe" he was shooting at a police officer.

The district court found that the police knocked on the door, the police announced their presence, another individual heard the police identify themselves, and that the defendants had had a discussion about law enforcement. However, the Sixth Circuit nonetheless held that, ?these facts standing alone, do not support a finding that either defendant actually ?knew or had reasonable cause to believe? that the individuals on the other side of the door at that moment were indeed the police.? (emphasis in original). The Sixth Circuit explained that the finding that another individual heard the officers identify themselves ?is insufficient to constitute a finding as to what [the defendants] heard.?

This may be somewhat of a hollow victory, however. While the Sixth Circuit vacated the opinion, it instructed the district court to make the appropriate factual findings on remand. This may be problematic for the defense, as the Sixth Circuit held that, ?the PSR contains facts that could support such a finding.? In other words, there is nothing to stop the district court from making the proper findings and reapplying the enhancement on remand. However, this case does remind us that Judges need a strong factual background to apply this enhancement.