Wednesday, June 13, 2018

US v. Swallow, No. 16-30224 (6-11-18)(Watford w/Tallman &Boulware).

The 9th upholds a four-level enhancement for use of a "dangerous weapon" in an aggravated assault under the Guidelines 2A2.2.  The "dangerous weapon"?  Tennis shoes. 
The defendant did stomp on the victims head.  The stomping and kicking happened after a fight concerning failure to return with some drugs.  The 9th affirmed the enhancement because, supposedly, the use of tennis shoes added to the force of the stomp, Although the tennis shoes were not inherently dangerous, like guns and knives, the tennis shoes could be dangerous in the manner of use, like stomping. The 9th found it was not an abuse of discretion because the tennis shoes made a kick or stomp more dangerous than with just bare feet. 

The 9th pointed to precedent, where it had upheld using a shoe to beat a child, and where it held that using bare hands were not a dangerous weapon, although shoes might.  The 5th, 8th, and 10th all have held that the use of shoes, even tennis shoes, can be a dangerous weapon depending on the circumstances.

The 9th did vacate the enhancement for "motivated by payment" for lack of evidence.   No one paid the defendant for the assault; he was egged on by his wife because the victim had failed to provide the paid for drugs.
Tough decision on the shoes but at least Colin Prince, Fed Defenders of E. Wash (Spokane), got a vacation, remand, and now a resentencing.

The decision is here:


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