In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.
The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."