United States v. Ronnie Duke , 2017 FED App. 0200P ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0200p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 16-2128
v. │
│
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RONNIE EDWARD DUKE, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cr-20136-1—Stephen J. Murphy III, District Judge.
Decided and Filed: August 29, 2017
Before: MOORE, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Craig A. Daly, CRAIG A. DALY, P.C., Detroit, Michigan, for Appellant.
Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ronnie Edward Duke
was sentenced to a 97-month term of imprisonment for assaulting an Assistant United States
Attorney at a hearing in a separate case. During the incident, Duke struck the attorney’s head
against and pushed the attorney’s legs into a table in the courtroom, causing bruising and an
abrasion. At sentencing, the district court determined that the table was a “dangerous weapon”
under the United States Sentencing Commission Guidelines Manual (“the Guidelines”), which
No. 16-2128 United States v. Duke Page 2
triggered sentencing enhancements that Duke challenges on appeal. Duke also argues that some
of these enhancements constitute impermissible double counting for the same conduct. Because
Duke used the courtroom table under the circumstances as a dangerous weapon and because no
impermissible double counting occurred, we AFFIRM the sentence below.
I. BACKGROUND
The district court made factual findings based on the parties’ memoranda and the
presentence investigation report (“PSR”), R. 35 (Sentencing Tr. at 38) (Page ID #262), so our
recitation of the facts is likewise focused on these sources.
A. Facts
The events that gave rise to this case began after Duke was sentenced to a 156-month
term of imprisonment for conspiracy to commit wire fraud. No. 2:11-cr-20017-JAC-VMM R.
180 (Judgment at 2) (Page ID #899).1 However, following his sentence, Duke failed to self-
surrender. PSR ¶ 6. A warrant was issued for his arrest, a new indictment was filed, charging
Duke with failure to surrender for a sentence, and Duke was arrested on February 24, 2014. Id.
¶¶ 6–8. At the arraignment, defense counsel requested that Duke be transferred to the prison to
which he had originally been designated to report or to a prison in Milan, Michigan. Id. ¶ 8.
Counsel for the government opposed Duke’s request, instead requesting that Duke be transferred
to a more local facility because the new charges were brought in the Eastern District of
Michigan. Id.
At this point, the hearing turned. Duke “yelled ‘you f**cking b**ch’ and ran towards the
government attorney.” Id. He “grabbed the victim by the back of the victim’s head[,] struck the
victim with his fist several times[, and] smashed the victim’s head into a table repeatedly. The
victim’s legs were pushed into the table during the attack, causing bruising.” Id. Duke also
acknowledges that there was “a small abrasion on the AUSA’s right temple.” Appellant’s Br. at
3. The attack ended when “various people within the courtroom” “subdued” Duke. PSR ¶ 8.
1
Unless otherwise indicated, as here, record citations are to case number 2:14-cr-20136-SJM-MKM, the
judgment from which Duke currently appeals.
No. 16-2128 United States v. Duke Page 3
B. Charges, Sentencing, and Procedural History
Duke was ultimately charged with one count of assaulting, resisting, or impeding certain
officers or employees in violation of 18 U.S.C. § 111(a)(1), (b). R. 1 (Indictment) (Page ID #1–
3). Duke pleaded guilty to this count, which the district court accepted. R. 34 (Plea Hr’g Tr. at
28) (Page ID #201).
Prior to sentencing, a probation officer prepared a PSR, which asserted that Duke’s base
offense level was 14 pursuant to § 2A2.2(a) of the Guidelines. PSR ¶ 14. The PSR also
suggested a 4-level increase pursuant to § 2A2.2(b)(2) because Duke used a dangerous weapon
(i.e., the table), PSR ¶ 15; a 3-level increase pursuant to § 2A2.2(b)(3)(A) because the victim
sustained bodily injury, PSR ¶ 16; a 2-level increase pursuant to § 2A2.2(b)(7) because Duke
was convicted of 18 U.S.C. § 111(b), PSR ¶ 17, and a 6-level increase pursuant to § 3A1.2(b),
PSR ¶ 18. With a 3-level reduction for acceptance of responsibility, the PSR calculated a total
offense level of 26. PSR ¶ 25.
Among Duke’s several objections to the PSR, Duke disagreed that the table upon which
he struck the victim’s head was a “dangerous weapon” under the Guidelines. A.R. 6-3 (PSR
add., at A-2–3); R. 27 (Def.’s Sentencing Mem. at 4–9) (Page ID #100–05). Based on his
alternative view of “dangerous weapon,” Duke argued that his base offense level should not be
calculated under § 2A2.2; that he should not receive a 4-level increase under § 2A2.2(b)(2) (“If
. . . a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels”), R. 27
(Def.’s Sentencing Mem. at 4–9) (Page ID #100–05); and that he should not receive a 2-level
increase under § 2A2.2(b)(7) (“If the defendant was convicted under 18 U.S.C. § 111(b),” which
imposes an enhanced penalty for anyone who “uses a deadly or dangerous weapon . . . or inflicts
bodily injury” in violating § 111(a) (to which Duke pleaded guilty), “increase by 2 levels.”).
Duke also argued that the PSR impermissibly double counted by increasing his offense level at
various points for the same conduct. R. 27 (Def.’s Sentencing Mem. at 9–10) (Page ID #105–
06).
At sentencing, the district court concluded that the table was a “dangerous weapon,”
overruling Duke’s objections. R. 35 (Sentencing Tr. at 37) (Page ID #261). The court thus
No. 16-2128 United States v. Duke Page 4
agreed with the PSR that Duke’s total offense level was 26. Id. Considering Duke’s
criminal history category of III, the district court determined that Duke’s Guidelines
imprisonment range was 78 to 97 months. Id. at 38 (Page ID #262). The court sentenced Duke
to 97 months of imprisonment. R. 31 (Judgment at 2) (Page ID #167). This term of
imprisonment and an 18-month term of imprisonment that Duke received for failure to surrender
for a sentence run consecutive to a 156-month term of imprisonment that Duke received for
conspiracy to commit wire fraud. Id. Duke filed a timely notice of appeal with respect to the 97-
month sentence. R. 32 (Notice of Appeal) (Page ID #171–72).
II. DISCUSSION
Duke raises two issues on appeal, both of which focus on the district court’s application
of the Guidelines. First, Duke argues that the courtroom table was not a “dangerous weapon” as
defined by the Guidelines. Second, Duke argues that the district court impermissibly double
counted when it increased his Guidelines score. For the following reasons, we hold that Duke is
incorrect on both counts.
A. Standard of Review
Duke challenges the procedural reasonableness of his sentence, an issue that he preserved
at sentencing, R. 35 (Sentencing Tr. at 63–64) (Page ID #287–88), and which we therefore
review for abuse of discretion, see United States v. Callahan, 801 F.3d 606, 626 (6th Cir. 2015).
“[A] district court abuses its discretion if it commits a significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range . . . [or] selecting a sentence based
on clearly erroneous facts . . . .” Id. (quoting United States v. Johnson, 640 F.3d 195, 201–02
(6th Cir. 2011)).
A district court’s interpretation of the Guidelines is a legal question, so we review that
interpretation de novo. United States v. Tolbert, 668 F.3d 798, 800 (6th Cir. 2012). But with
respect to a district court’s application of the Guidelines, “we review the district court’s factual
findings for clear error and mixed questions of law and fact de novo.” Id. “A finding is clearly
erroneous where, although there is evidence to support it, the reviewing court on the entire
No. 16-2128 United States v. Duke Page 5
evidence is left with the definite and firm conviction that a mistake has been committed.” Id.
(quoting United States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010)).
B. Dangerous Weapon
As referenced above, a defendant’s use of a “dangerous weapon” in the commission of an
aggravated assault permits a district court to raise the defendant’s base offense level. See U.S.
Sentencing Guidelines § 2A2.2(b)(2). The Guidelines define a “dangerous weapon” as “(i) an
instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an
instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an
instrument; or (II) the defendant used the object in a manner that created the impression that the
object was such an instrument (e.g. a defendant wrapped a hand in a towel during a bank robbery
to create the appearance of a gun).”2 Id. § 1B1.1 cmt. n.1(D). Section 2A2.2 elaborates “for
purposes of [that] guideline regarding aggravated assault] that a “‘[d]angerous weapon’ . . .
includes any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice
pick) if such an instrument is involved in the offense with the intent to commit bodily injury.”3
Id. § 2A2.2 cmt. n.1. “This Court employs a ‘functional approach’ to ‘what constitutes a
dangerous weapon’ under the Guidelines, and we have recognized that ‘in the proper
circumstances, almost anything can count as a dangerous weapon, including walking sticks,
leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and
stink bombs.’” Callahan, 801 F.3d at 628 (quoting Tolbert, 668 F.3d at 802–03).
For instance, in Tolbert, we held that a district court correctly applied a functional
analysis by “looking at the circumstances in which the [instrument] was used.” 668 F.3d at 803.
In that case, the defendant struck a Deputy United States Marshal in the head with a water
pitcher at a sentencing hearing. Id. at 799. Evidence presented at the sentencing hearing
indicated “that the water pitcher was made out of a very hard plastic that was intact before the
incident” but that “[a]fter the incident, the plastic casing on the water pitcher was cracked.” Id.
2
“‘Serious bodily injury’ means injury involving extreme physical pain or the protracted impairment of a
function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery,
hospitalization, or physical rehabilitation.” U.S. Sentencing Guidelines § 1B1.1 cmt. n.1(L).
3
“‘Bodily injury’ means any significant injury; e.g., an injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought.” U.S. Sentencing Guidelines § 1B1.1 cmt. n.1(B).
No. 16-2128 United States v. Duke Page 6
at 800. There was also evidence that the pitcher may have been full at the time it struck the
victim, that it “was roughly estimated to have a height of about ten inches, with a handle of six
inches, and a circumference of about twelve inches,” and that “[i]t was estimated to weigh about
half of a pound to a pound when empty.” Id. The district court concluded that a water pitcher
was a dangerous weapon “based on evidence of the characteristics of the water pitcher—
including its hardness, size, shape, and weight, the circumstances in which it was used (to strike
someone in the head), and common experience, that this object was capable of inflicting serious
bodily harm, even though no such harm actually resulted.” Id. at 803. Noting that the district
court had not clearly erred in these factual findings, we held that the water pitcher was a
dangerous weapon under the circumstances. Id.
We believe that in this case the district court correctly followed the approach articulated
in Tolbert. First and foremost, the district court considered the table’s capability of inflicting
death or serious bodily harm: “The edge of the table, the corner of the table, the flat top of the
table itself, when used in the manner it was used here, which is a stationary, unmoving object . . .
against which the victim’s body and head could be thrown in anger for the purpose of injuring, it
would be a dangerous weapon under those definitions.” R. 35 (Sentencing Tr. at 36) (Page ID
#260). The court also relied on the parties’ memoranda, id. at 38 (Page ID #262), which noted
the table’s “size and density,” R. 30 (Gov’t’s Sentencing Mem. at 6) (Page ID #147), and the
PSR, which stated that “Duke . . . smashed the victim’s head into a table repeatedly” and pushed
the victim’s legs into the table, A.R. 6-1 (PSR ¶ 8). Finally, the court considered that the victim
suffered bruising and an abrasion, illustrating that Duke used the table in a dangerous manner.
R. 35 (Sentencing Tr. at 36) (Page ID #260). The record does not indicate that the district court
clearly erred in making these factual findings. Because these findings support the district court’s
conclusion that the table was capable of inflicting death or serious bodily harm, we hold that the
table was a “dangerous weapon” pursuant to § 2A2.2.
Duke argues in response that the Guidelines distinguish between “instruments” and
“objects,” and that the table was not “an instrument capable of inflicting death or serious bodily
injury,” U.S. Sentencing Guidelines § 1B1.1 cmt. n.1(D) (emphasis added). The Guidelines
indeed use the terms “instrument” and “object” at different points: “‘Dangerous weapon’ means
No. 16-2128 United States v. Duke Page 7
. . . an object that is not an instrument capable of inflicting death or serious bodily injury but (I)
closely resembles such an instrument; or (II) the defendant used the object in a manner that
created the impression that the object was such an instrument (e.g. a defendant wrapped a hand
in a towel during a bank robbery to create the appearance of a gun).” Id. (emphasis added).
However, the Guidelines do not define either term. Therefore, we must give each term “its
ordinary and natural meaning.” See United States v. Lumbard, 706 F.3d 716, 723 (6th Cir. 2013)
(quoting Carter v. Welles-Bowen Realty, Inc. (In re Carter), 553 F.3d 979, 986 (6th Cir. 2009));
see also United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011) (“In interpreting the
Sentencing Guidelines, the traditional canons of statutory interpretation apply.”). An object is “a
material thing that can be seen and touched.” Object, Oxford English Dictionary (3d ed. 2004),
http://www.oed.com/ (last visited July 11, 2017); Object, Merriam-Webster Unabridged,
http://unabridged.merriam-webster.com/ (last visited July 11, 2017) (“something that is put or
may be regarded as put in the way of some of the senses: a discrete visible or tangible thing”);
cf. Yates v. United States, 574 U.S. ——, 135 S. Ct. 1074, 1081 (2015) (Ginsburg, J.)
(“The ordinary meaning of an ‘object’ that is ‘tangible,’ as stated in dictionary definitions, is ‘a
discrete . . . thing’ . . . that ‘possess[es] physical form.’” (quoting Webster’s Third New
International Dictionary 1555 (2002); Black’s Law Dictionary 1683 (10th ed. 2014)). An
instrument is “[a]n object, device, or apparatus designed or used for a particular purpose or task.”
Instrument, Oxford English Dictionary (3d ed. 2004), http://www.oed.com/ (last visited July 11,
2017); Instrument, Merriam-Webster Unabridged (An instrument is a “utensil,” which in turn is
defined as “an article (as a tool, implement, or vessel) serving a useful purpose.” An article is
“a material thing: item, object.”).
Whatever distinction may exist between “instruments” and “objects,” we hold that a table
meets the definition of both words. A table is “a material thing that can be seen and touched,”
Object, Oxford English Dictionary (3d ed. 2004), http://www.oed.com/ (last visited July 11,
2017), so it is undoubtedly an object. And in this case, the table was “[a]n object . . . used for a
particular purpose or task,” Instrument, Oxford English Dictionary (3d ed. 2004),
http://www.oed.com/ (last visited July 11, 2017), namely, striking the victim’s head. Therefore,
it is also an instrument.
No. 16-2128 United States v. Duke Page 8
Duke suggests that an instrument cannot be stationary. However, this argument is
contradicted by the ordinary definition of instrument, which says nothing about the object’s
mobility, and by prior published opinions, which have recognized that stationary objects may be
dangerous weapons under certain circumstances, see Callahan, 801 F.3d at 628 (citing Tolbert,
668 F.3d at 802–03) (noting that a concrete curb could be a dangerous weapon). Such a holding
is consistent with at least one sister circuit, which has held that an instrument’s stationary nature
does not disqualify it from being a dangerous weapon under 18 U.S.C. § 111. See United States
v. Murphy, 35 F.3d 143, 147–48 (4th Cir. 1994) (“In concluding that the steel bars are a
dangerous weapon, we see no distinction that in this case the bars were stationary while [the
victim’s] head was thrust against them.”). Our holding is also consistent with another sister
circuit, which has held that a desk overturned onto its victim could be considered a dangerous
weapon under § 111.4 See United States v. Gholston, 932 F.2d 904, 905 (11th Cir. 1991). We
have previously observed that “almost any object can be a dangerous weapon depending on how
it is wielded in the circumstances.” Tolbert, 668 F.3d at 803 (citing United States v. Matthews,
106 F.3d 1092, 1095 (2d Cir. 1997)). In keeping with this observation, we hold that the table
upon which Duke struck the victim’s head does not cease to be a dangerous weapon simply
because it was stationary.
C. Impermissible Double Counting
Finally, Duke argues that the district court impermissibly double counted in applying
multiple Guidelines provisions for the same conduct. It is well established that “impermissible
‘double counting’ occurs when precisely the same aspect of a defendant’s conduct factors into
his sentence in two separate ways.” United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999).
Nevertheless, we allow double counting “where it appears that Congress or the Sentencing
Commission intended to attach multiple penalties to the same conduct.” United States v.
4
Duke argues that “referencing cases that address the elements of [§ 111] and sufficiency of evidence at
trial does not satisfy or answer the issue here.” Appellant’s Br. at 15. We recognize that Murphy and Gholston
tested the sufficiency of the evidence to sustain a conviction under § 111, and not the meaning of “dangerous
weapon” under the Guidelines. However, we have previously found such cases useful in interpreting the Guidelines
definition. See Tolbert, 668 F.3d at 803 (citing United States v. Matthews, 106 F.3d 1092, 1095 (2d Cir. 1997)
(interpreting “dangerous weapon” under § 111)). And the definition of “dangerous weapon” under § 111 is directly
relevant to whether the district court erroneously increased his offense level under § 2A2.2(b)(7) (“If the defendant
was convicted under 18 U.S.C. § 111(b) . . . , increase by 2 levels.”).
No. 16-2128 United States v. Duke Page 9
Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (quoting Farrow, 198 F.3d at 194). Our inquiry is
thus divided in two: we first determine whether double counting occurred, after which we
determine whether any such double counting was impermissible. Id. If the double counting is
impermissible, the sentence is rendered procedurally unreasonable. Id.
On appeal, Duke points to three instances of alleged double counting. First, he argues
that the district court used its dangerous-weapon finding both to determine the base offense level
and to increase the offense level under § 2A2.2(b)(2). Although Duke’s use of a dangerous
weapon (i.e., the table) indeed appears to have factored into his base offense level and the
offense level increase, this double counting is permissible. In response to “a circuit conflict
regarding whether the four-level enhancement in subsection (b)(2)(B) of § 2A2.2 (Aggravated
Assault) for use of a dangerous weapon during an aggravated assault is impermissible double
counting,” the Sentencing Commission amended § 2A2.2, explaining that “both the base offense
level of level 15 and the weapon use enhancement in subsection (b)(2) shall apply to aggravated
assaults that involve a dangerous weapon with intent to cause bodily harm.” U.S. Sentencing
Guidelines app. C, vol. II, amend. 614, at 116. Before the Sentencing Commission amended
§ 2A2.2, when we were “not persuaded that this guideline was written in contemplation of [a]
situation . . . where a ‘dangerous weapon’ is not dangerous at all unless it is ‘otherwise used,’”
we held that it was impermissible double counting to consider such a “weapon” in calculating
both the base offense level and the enhancement in § 2A2.2(b)(2). Farrow, 198 F.3d at 194–95.
However, as Amendment 614 explains above, the Sentencing Commission has since taken a
different view—that it is permissible double counting to consider the use of a dangerous weapon
in calculating both the base offense level and the enhancement in § 2A2.2(b)(2). In light of this
clear guidance from the Sentencing Commission, we hold that such double counting, which took
place in Duke’s case, is permissible.
Second, Duke argues that considering the victim’s bodily injury to give a three-level
enhancement under § 2A2.2(b)(3)(A) and a two-level enhancement under § 2A2.2(b)(7) was
impermissible double counting. Section 2A2.2(b)(3)(A) provides for a three-level enhancement
“[i]f the victim sustained bodily injury.” As stated above, § 2A2.2(b)(7) provides for a two-level
enhancement “if the defendant was convicted under 18 U.S.C. § 111(b) or § 115.” Duke was
No. 16-2128 United States v. Duke Page 10
convicted of § 111(b), which provides that “[w]hoever, in the commission of any acts described
in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause
death or danger but that fails to do so by reason of a defective component) or inflicts bodily
injury, shall be fined under this title or imprisoned not more than 20 years, or both.” R. 31
(Judgment at 1) (Page ID #166).
It appears that Duke’s enhancements under §§ 2A2.2(b)(3)(A) and 2A2.2(b)(7) were both
based on his infliction of bodily harm. However, “a court may impose two enhancements arising
from the same conduct, provided the enhancements ‘penalize distinct aspects of [a defendant’s]
conduct and distinct harms.’” United States v. Sweet, 776 F.3d 447, 451 (6th Cir. 2015) (quoting
United States v. Smith, 516 F.3d 473, 476 (6th Cir. 2008)). Such is the case here. Sections
2A2.2(b)(3)(A) and 2A2.2(b)(7) punish distinct aspects of Duke’s conduct. Section
2A2.2(b)(3)(A) enhances the defendant’s offense level if “the victim sustained bodily injury.”
By contrast, § 2A2.2(b)(7) serves “‘to ensure punishment at or near the maximum penalty for the
most egregious conduct covered by’ 18 U.S.C. §§ 111 and 115.” U.S. Sentencing Guidelines
§ 2A2.2 cmt. (quoting 21st Century Department of Justice Appropriations Authorization Act,
Pub. L. No. 107-273, § 11008(e)(2)(D), 116 Stat. 1758 (2002)). Although “bodily injury” is an
aspect of the enhanced-penalty provision of § 111, that statute generally targets assault on
officers and employees of the United States. 18 U.S.C. § 111(a) (citing 18 U.S.C. § 1114).
Because the assault of an officer or employee of the United States is distinct from general
infliction of bodily harm, application of §§ 2A2.2(b)(3)(A) and 2A2.2(b)(7) did not constitute
impermissible double counting.
Last, Duke argues that the district court impermissibly double counted when it “score[d]
the base offense for the crime of conviction” under § 2A2.2 and increased the offense level under
§ 3A1.2 because the victim was a government officer or employee. Appellant’s Br. at 19–20.
Indeed, the PSR calculated Duke’s base offense level because he was convicted under § 111,
which prohibits assaulting government officers and employees. A.R. 6-1 (PSR ¶ 14). The
district court also increased Duke’s offense level by two pursuant to § 2A2.2(b)(7) and by six
pursuant to § 3A1.2(b) because the victim was a government officer or employee. A.R. 6-1
(PSR ¶¶ 17–18). However, the Sentencing Commission has made clear that “[i]f subsection
No. 16-2128 United States v. Duke Page 11
(b)(7) applies, § 3A1.2 (Official Victim) also shall apply.” U.S. Sentencing Guidelines § 2A2.2
cmt. n.4. And if the Sentencing Commission intended §§ 2A2.2(b)(7) and 3A1.2 to apply with
respect to the same conduct, it follows that the Commission intended §§ 3A1.2 and 2A2.2 as a
whole to apply with respect to the same conduct as well. Because “the Sentencing Commission
intended to attach multiple penalties to the same conduct,” Battaglia, 624 F.3d at 351, this is
permissible double counting. See United States v. Swanson, No. 96-5383, 1996 WL 678227, at
*2 (6th Cir. Nov. 21, 1996). Therefore, we hold that the district court did not impermissibly
double count in determining Duke’s sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence below.