United States v. Paul Swallow , 891 F.3d 1203 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30224
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00074-
WFN-1
PAUL DAVID SWALLOW, AKA Paul
Dean Swallow,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted December 4, 2017
Seattle, Washington
Filed June 11, 2018
Before: Richard C. Tallman and Paul J. Watford, Circuit
Judges, and Richard F. Boulware II,* District Judge.
Opinion by Judge Watford
*
The Honorable Richard F. Boulware II, United States District Judge
for the District of Nevada, sitting by designation.
2 UNITED STATES V. SWALLOW
SUMMARY**
Criminal Law
The panel vacated a sentence imposed following the
defendant’s guilty plea to assault resulting in serious bodily
injury, and remanded for resentencing.
The panel held that the district court properly applied an
enhancement under U.S.S.G. § 2A2.2(b)(2)(B), which applies
if “a dangerous weapon (including a firearm) was otherwise
used” during commission of the offense. The panel wrote
that the district court properly concluded that the defendant’s
tennis shoes qualified as dangerous weapons when he used
them to kick and stomp the victim’s head.
The panel held that the district court erred in applying an
enhancement under U.S.S.G. § 2A2.2(b)(5), which applies if
“the assault was motivated by a payment or offer of money or
other thing of value.” The panel observed that no evidence
remotely suggests that the defendant had been hired by
someone to assault the victim, or that he had been paid
anything of value for undertaking the assault.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SWALLOW 3
COUNSEL
Colin G. Prince (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
James A. Goeke (argued) and Alison L. Gregoire, Assistant
United States Attorneys; United States Attorney’s Office,
Spokane, Washington; for Plaintiff-Appellee.
OPINION
WATFORD, Circuit Judge:
Paul Swallow pleaded guilty to assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153.
On appeal, he challenges the district court’s calculation of his
sentencing range under § 2A2.2 of the United States
Sentencing Guidelines, the provision that governs aggravated
assault offenses. In particular, Swallow challenges two
enhancements imposed by the court: (1) a four-level increase
under § 2A2.2(b)(2)(B), which applies if “a dangerous
weapon (including a firearm) was otherwise used” during
commission of the offense; and (2) a two-level increase under
§ 2A2.2(b)(5), which applies if “the assault was motivated by
a payment or offer of money or other thing of value.” We
conclude that the district court properly applied the first
enhancement but erred by imposing the second.
The facts relevant to this appeal are straightforward but
tragic. Swallow and the victim of the offense were casual
acquaintances. Swallow’s wife gave the victim ten dollars to
purchase methamphetamine, with the expectation that the
4 UNITED STATES V. SWALLOW
victim would return later with the drugs. When Swallow and
his wife met up with the victim at a casino to obtain the
methamphetamine, the victim refused to provide the drugs or
return the money. Swallow and his wife later encountered the
victim in the parking lot of the casino. Egged on by his wife,
who called Swallow a coward for letting the victim rip them
off, Swallow decided to engage the victim in a fist-fight.
Swallow swung first, knocked the victim to the ground, and
then, while wearing tennis shoes, proceeded to kick the
victim while he was on the ground. At first, the victim kicked
back and attempted to defend himself. But after Swallow
landed several vicious kicks to the victim’s torso and head,
the victim lay motionless, apparently unconscious. Rather
than walk away, Swallow continued to kick the victim in the
head with full force, as though he were kicking a football.
Swallow then stomped on the victim’s head with the bottom
of his shoe, crushing the victim’s head into the pavement.
The victim was hospitalized as a result of the attack and
suffered permanent cognitive impairment.
We will begin with the enhancement for use of a
dangerous weapon. As relevant here, the Guidelines define
the term “dangerous weapon” as “an instrument capable of
inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1
cmt. n.1(D)(i). There is no dispute that the victim suffered
serious bodily injury as that term is defined in the Guidelines.
§ 1B1.1 cmt. n.1(L). The only question is whether Swallow
used an “instrument” capable of inflicting such injury with
the intent to injure his victim. United States v. Dayea,
32 F.3d 1377, 1380 (9th Cir. 1994). The district court
concluded that he did. That is a guideline-application
determination we review for abuse of discretion. United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en
banc).
UNITED STATES V. SWALLOW 5
There are two types of instruments that qualify as
dangerous weapons: those that are inherently dangerous (such
as guns and knives), and those that, while not dangerous per
se, can become so by virtue of the manner in which they are
used. United States v. Smith, 561 F.3d 934, 939 (9th Cir.
2009) (en banc); United States v. Riggins, 40 F.3d 1055, 1057
(9th Cir. 1994). This latter category of instruments can
include virtually any object—including things like walking
sticks, leather straps, and tennis shoes—depending upon “the
manner in which they were used.” Riggins, 40 F.3d at 1057;
see Dayea, 32 F.3d at 1379. If the defendant uses such an
object to “augment the force of his physical assault,” in a
manner capable of inflicting serious bodily injury, the object
may constitute a dangerous weapon. United States v. Rocha,
598 F.3d 1144, 1157 (9th Cir. 2010).
In this case, the district court did not abuse its discretion
in concluding that Swallow’s tennis shoes qualify as
dangerous weapons, given the manner in which they were
used. Although tennis shoes are not inherently dangerous,
Swallow undoubtedly used his shoes to augment the force of
the kicks and the stomp he delivered to the victim’s head; the
shoes enabled Swallow to inflict greater harm than if he had
delivered the kicks and stomp with his bare feet. And
Swallow used his shoes to commit the assault in a manner
capable of producing serious bodily injury. Kicking someone
in the head with full force while he is lying on the ground
unconscious can obviously produce such injury. That is even
more true of stomping on someone’s head while the person’s
head rests on a hard surface, such as the parking lot pavement
involved here.
Our conclusion that Swallow’s tennis shoes qualify as
dangerous weapons is amply supported by precedent, both
6 UNITED STATES V. SWALLOW
from our circuit and our sister circuits. Our court has not yet
squarely addressed the issue, but we included tennis shoes
among the objects that can qualify as dangerous weapons in
Dayea. 32 F.3d at 1379. In Riggins, we held that the
defendant used a shoe as a dangerous weapon when she beat
her two-year-old son with it, although there the defendant
apparently held the shoe in her hand. 40 F.3d at 1057. And
in Rocha, we held that assault with a dangerous weapon
cannot be committed by using one’s bare hands or feet alone,
but we again suggested that kicking someone while wearing
shoes can qualify as use of a dangerous weapon, depending
on the manner in which the kicks are delivered. 598 F.3d at
1157. Several of our sister circuits have squarely addressed
this issue, and they have held that shoes qualify as dangerous
weapons when, as here, they are used to kick or stomp the
victim in a manner capable of producing serious bodily
injury. See, e.g., United States v. Velasco, 855 F.3d 691,
692–93 (5th Cir. 2017) (shoes used to stomp victim’s head
into prison floor); United States v. Steele, 550 F.3d 693, 699
(8th Cir. 2008) (kicking victim in torso with tennis shoes);
United States v. Serrata, 425 F.3d 886, 909–10 (10th Cir.
2005) (stomping on victim’s head with work boots).
In short, an object that is not inherently dangerous can
constitute a dangerous weapon if the defendant used the
object to augment the force of the assault, in a manner
capable of inflicting serious bodily injury. Here, the district
court properly concluded that Swallow’s tennis shoes
qualified as dangerous weapons when he used them to kick
and stomp the victim’s head. The court therefore properly
applied the four-level enhancement under § 2A2.2(b)(2)(B).
We reach a different conclusion with respect to the two-
level enhancement under § 2A2.2(b)(5). That enhancement
UNITED STATES V. SWALLOW 7
applies if “the assault was motivated by a payment or offer of
money or other thing of value.” U.S.S.G. § 2A2.2(b)(5)
(emphasis added). It serves the same function as the similar
enhancement found in the guideline covering assault with
intent to commit murder, which applies if “the offense
involved the offer or the receipt of anything of pecuniary
value for undertaking the murder.” § 2A2.1(b)(2). Both
enhancements are intended primarily to cover cases in which
the offense was “committed for hire.” § 2A2.2 cmt.
(background).
No evidence remotely suggests that Swallow had been
hired by someone to assault the victim, or that he had been
paid or offered anything of value for undertaking the assault.
Instead, the undisputed evidence showed that Swallow
engaged in the assault because he had been egged on by his
wife, who called him a coward for letting the victim take their
money without providing the promised methamphetamine in
return. On these facts, the two-level enhancement under
§ 2A2.2(b)(5) cannot be applied.
Because the district court erred in calculating the correct
sentencing range under the Guidelines, and we cannot say the
error was harmless, we must vacate Swallow’s sentence and
remand for resentencing. See United States v. Munoz-
Camarena, 631 F.3d 1028, 1030–31 (9th Cir. 2011) (per
curiam). Nothing we have said in this opinion, however,
should be taken to suggest that the 84-month sentence
originally imposed was substantively unreasonable. On
remand, the court should bear in mind that, under
8 UNITED STATES V. SWALLOW
§ 2A2.2(b)(3), “the cumulative adjustments from application
of subdivisions (2) and (3) shall not exceed 10 levels.”
SENTENCE VACATED; REMANDED FOR
RESENTENCING.