Case o' The Week: Tennis Shoes as "Dangerous Weapons" a Tough Outcome to Swallow - Swallow and Assault Guideline Enhancement

  Shoes: "dangerous weapons," in the Ninth.

United States v. Swallow, 2018 WL 2771044(9th Cir. June 11, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Tallman and D.J. Boulware II.

  Hard-fought appeal by AFPD Colin Prince, Federal Defenders of Eastern Washington & Idaho.

Facts: After a tiny meth deal went bad, Swallow and his victim fought in a casino parking lot. Id. *1. The victim ended up on the ground, and Swallow – while wearing tennis shoes – “proceeded to kick the victim . . . . 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.” Id.

  Swallow pleaded guilty to assault resulting in serious bodily injury, then was hit with a four level increase under for using a “dangerous weapon” during the commission of the offense (the tennis shoes). Id.

Issue(s): “[Swallow] challenges the . . . calculation of his sentencing range under § 2A2.2 . . . . [and] challenges two enhancements . . . . : (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.’ Id. at *1.

Held: “[T]he district court properly applied the first enhancement but erred by imposing the second.” Id. at *1. “[T]he 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 . . . The only question is whether Swallow used an ‘instrument’ capable of inflicting such injury with the intent to injure his victim.” Id. at *2.

  “[T]he 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.” Id. at *2.

  “[A]n 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.” Id. at *3.

Of Note: At least the panel rejects the second enhancement: + 2 O.L. for an assault motivated by an offer of payment or money. Id. at *3. Judge Watford explains this enhancement is intended for “assault for hire” cases – here, Swallow stomped his victim after being egged on by his wife. Id. A good limitation on § 2A2.2(b)(5).

How to Use: This “tennis shoe” holding has an important limitation. The shoes only qualified as “dangerous weapons” because (the Court found) they “augmented the force of the assault.” Id. at *3. 

  Don’t let your P.O. convert every mundane object into a “dangerous weapon” – this holding should be limited to the egregious facts of this case, where the victim’s head was “stomped” into the pavement, and permanent damage resulted.

                                               

The Hon. District Judge Richard Boulware

For Further Reading: The DJ on the Swallow panel, the Judge Richard Boulware, has more than a passing interest in Guideline matters. A former AFPD, Judge Boulware was nominated by President Obama to the Sentencing Commission in 2015. See White House press release here. 

  ND Cal District Judge Breyer was also nominated to the Commission by the President that round.

  The latter nomination panned out: the former, not so much.

Image of shoe gun from http://www.zionumcwhitehouse.org/112617-save-the-shoes/attachment/old-converse-tennis-shoes/

Image of Judge Boulware from http://lasvegas.cbslocal.com/2014/06/11/las-vegan-appointed-to-federal-bench/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.

.