Clarifying Multiplicity and Guideline “Double-Counting” in § 111(b) Assaults: United States v. Lester Nash

Introduction

United States v. Lester Nash, No. 23-13290 (11th Cir. July 8 2025) (unpublished), presented the Eleventh Circuit with a familiar—but doctrinally knotty—quartet of complaints:

• whether the Government proved Nash’s identity beyond a reasonable doubt;
• whether charging two counts of assault on two federal officers arising from the same prison disturbance was multiplicitous and therefore barred by double-jeopardy concerns;
• whether the district court’s Guidelines calculations impermissibly “double-counted” victim injury when it used the aggravated-assault guideline (§2A2.2) and then added enhancements under §2A2.2(b)(3) (serious bodily injury) and (b)(7) (conviction under § 111(b)); and
• whether a 137-month, within-Guidelines sentence was substantively unreasonable.

In a per curiam opinion, the Eleventh Circuit affirmed across the board. Although unpublished, the decision provides important clarification on (i) the circumstances in which multiple § 111 counts are not multiplicitous, and (ii) how cumulative enhancements under §2A2.2 operate without violating the anti-double-counting principle.

Summary of the Judgment

The Court of Appeals held:

• Sufficiency of the evidence: Nash waived review of the denial of his Rule 29 motion because he testified in his own defense. Considering the entire trial record, ample evidence—including Nash’s own testimony—identified him as the assailant.
• Multiplicity: Charging two separate counts for assaults on Officers J.S. and T.H. did not violate Ladner v. United States because Nash committed distinct physical acts; therefore each count required proof of a fact the other did not.
• Guidelines “double-counting”: Applying the aggravated-assault base offense level (14) and adding six levels for serious bodily injury plus two levels for a § 111(b) conviction was not plainly erroneous. The text and commentary of §2A2.2 designate §2A2.2(b)(3) as a “cumulative adjustment,” and nothing in §2A2.2(b)(7) prohibits stacking.
• Substantive reasonableness: The 137-month sentence, well below the 240-month statutory maximum and within the properly calculated range, reflected a permissible weighing of § 3553(a) factors.

Analysis

1. Precedents Cited and Their Influence

1. Ladner v. United States, 358 U.S. 169 (1958) & Fifth-Circuit progeny
   

   Ladner established that a single discharge of a firearm injuring two officers is one assault for § 111 purposes. The Eleventh Circuit distinguished Ladner by relying on Fifth-Circuit decisions (Theriault, Williams) that permit separate counts where “more than one act” produces more than one assault. By emphasizing Nash’s multiple discrete blows on two officers, the panel reaffirmed that multiplicity analysis under § 111 turns on the number of acts, not the number of victims.

2. United States v. Thomas, 987 F.2d 697 (11th Cir. 1993)
   

   The panel invoked Thomas to hold that a defendant who puts on a defense after the Government’s case forfeits appellate review of a Rule 29 denial, unless he renews the motion. Nash testified, thereby waiving an intermediate-evidence review; the court considered the complete record instead.

3. United States v. Webb, 665 F.3d 1380 (11th Cir. 2012)
   

   Webb articulates the Eleventh Circuit’s anti-double-counting doctrine: cumulative enhancements are permissible unless the Guidelines forbid it. The Nash panel leaned heavily on Webb to presume the Sentencing Commission intended §2A2.2(b)(3) and (b)(7) to stack.

4. Plain-error authorities—United States v. Frank, 599 F.3d 1221 (11th Cir. 2010)—reinforced the idea that, absent binding precedent declaring the alleged error, nothing is “plain.”

2. Legal Reasoning of the Court

The opinion proceeds through four doctrinal lenses: waiver, multiplicity, Guidelines interpretation, and sentencing reasonableness.

a. Waiver of Rule 29 Challenge

By choosing to testify, Nash “opened the door” to new inculpatory evidence and voluntarily assumed the risk that the case only got worse. That strategic choice nullified any error in the original mid-trial denial of acquittal. Under Thomas, the appellate lens becomes sufficiency of all evidence, which the prosecution easily survived.

b. Multiplicity Analysis under Blockburger–Ladner

Multiplicity questions pivot on whether each count requires proof of a fact the other does not (Blockburger). However, § 111 cases add a twist: multiple victims stemming from one act equal one offense (Ladner), whereas multiple acts produce multiple offenses (Theriault). The Eleventh Circuit found Nash’s conduct to be temporally and physically distinct—punching Officer Hammerle, then assaulting Officer Skurkis with a weapon—thus satisfying the “more than one act” test. Because Nash did not raise multiplicity pre-trial, review was for plain error; in any event, there was no error at all.

c. Guidelines: Base Level, §2A2.2, and Alleged Double-Counting

Key moves in the Court’s Guideline reasoning:

• Section 2A2.2(a) (base level 14) applies because the assault was “aggravated” under commentary note 1(B): it resulted in serious bodily injury. No specific intent to cause injury is required when serious bodily injury in fact occurs.
• Section 2A2.2(b)(3) explicitly labels the bodily-injury increase a “cumulative adjustment,” signalling Commission intent to pile it on top of the base level.
• Section 2A2.2(b)(7) adds two levels for a § 111(b) conviction. Nothing in the text or commentary makes this enhancement mutually exclusive with (b)(3).
• Under Webb, silence equals permission: unless the Guidelines forbid stacking, courts presume it is allowed.
• No Eleventh-Circuit or Supreme-Court precedent declares such stacking impermissible. Hence, even if arguendo error existed, it was not “plain.”

d. Substantive Reasonableness

The court emphasized three anchors:

1. The 137-month sentence fell within the properly calculated range;
2. it was far below the 20-year statutory maximum for § 111(b) as well as the cumulative 25-year maximum when combined with the § 1791 count; and
3. the district judge explicitly acknowledged the § 3553(a) factors and Nash’s mitigation briefing.

Given these guideposts, the panel found no “clear error of judgment.”

3. Potential Impact of the Ruling

• Multiplicity Guidance: Prosecutors may confidently charge separate § 111 counts for successive assaults occurring during a single prison melee, so long as there is a discernible break or additional act. Defense counsel must file pre-trial motions or forfeit ordinary review.
• Guidelines Interpretation: The decision buttresses a pro-government reading of §2A2.2—embracing cumulative bodily-injury and § 111(b) enhancements. Future defendants will find it harder to argue that such stacking “double counts” injury.
• Serious Bodily Injury Without Intent: By stressing that actual injury suffices for aggravated assault even absent intent, the case closes a defense avenue premised on subjective state of mind.
• Plain-Error Stringency: Once again the Eleventh Circuit reminds litigants that undeveloped or novel arguments rarely qualify as “plain” error. Strategic silence at sentencing is perilous.

Complex Concepts Simplified

• Multiplicitous Indictment: Charging the same offense in more than one count. Picture a ticket officer writing you two tickets for the exact same infraction; that would be multiplicity. Courts look for “extra” elements of proof to decide if counts are truly different.
• Double Counting: Penalizing the same wrongful conduct twice under the Sentencing Guidelines. Think of getting docked both for “breaking curfew” and separately for “being out after 10 p.m.” when those are indistinguishable.
• Plain Error Review: A four-part test for correcting mistakes that were not preserved below: (1) some error; (2) obvious (“plain”) under current law; (3) affects substantial rights (usually the outcome); (4) seriously damages judicial integrity. All four must be met.
• Blockburger Test: A double-jeopardy tool that asks whether each statutory count requires proof of a fact that the other does not. If yes, separate counts are usually permissible.
• Aggravated Assault (Guidelines): Not the common-law offense, but a Guideline term covering any felonious assault that involves a dangerous weapon, intent-to-injure, or serious bodily injury. Even a spontaneous assault can qualify once substantial injury results.

Conclusion

United States v. Lester Nash may be unpublished, but its doctrinal contributions are concrete. It re-affirms that:

1. Separate violent acts against different federal officers can yield separate § 111 counts without violating double-jeopardy principles;
2. the “aggravated assault” guideline is triggered by serious bodily injury per se, without additional intent findings;
3. the Sentencing Commission’s explicit and implicit signals permit cumulative enhancements for injury and § 111(b) status; and
4. defendants who sit on objections or raise novel theories on appeal face the near-insurmountable plain-error standard.

As prisons and other federal facilities continue to generate volatile encounters, Nash provides a road-map for prosecutors, defense counsel, and sentencing courts alike. Its twin clarifications on multiplicity and double-counting promise to shape plea negotiations, indictment drafting, and Guidelines litigation in future § 111 prosecutions throughout the Eleventh Circuit—and, given the paucity of published authority, possibly beyond.