Sunday, January 12, 2020

Case o' The Week: Ninth Chokes on Strangling Challenge - Harrington and Double Counting in Assault Guideline

Convicted for strangling, higher guideline for strangling -- and double-counting challenge strangled, too.

  United States v. Harrington, 2019 WL 7161279 (9th Cir. Dec. 24, 2019), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Callahan and Christen. Hard-fought appeal by AFD Jeremy Sporn, Federal Defenders of Eastern Washington and Idaho, Inc.  

Facts: Harrington strangled his spouse in Indian Country, and pleaded guilty to assault in violation of 18 USC § 113(a)(8). Id. at *1. (This statute criminalizes strangling a spouse within specified jurisdictions). At sentencing, the government sought three additional levels under USSG § 2A2.2(b)(4), because the offense involved strangling a spouse. Id. Over defense objection the court imposed the enhancement.

Issue(s): “Harrington contends that the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4) of the U.S. Sentencing Guidelines (“Guidelines”). He contends that because his conviction was for strangling a spouse, that conduct was already accounted for in the base offense level of § 2A2.2(a).” Id.

Held:We affirm the district court.” Id. at *1. “Harrington contends that the district court erred in applying the three-level adjustment for strangling a spouse in subsection (b)(4), on the ground that the base offense level in subsection (a) has already taken that conduct into account. We disagree. A plain-text reading of the Guideline indicates that the base offense level contemplated by § 2A2.2(a) does not necessarily capture the conduct detailed in the ‘specific offense characteristics.’” Id. at *3.

Of Note: The acid test for double-counting is whether it is possible to come within the guideline enhancement, without that conduct having been an element for the offense of conviction. See id. at *3 (quoting United States v. Reese, 2 F.3d 870 (9th Cir. 1993)). Here, “strangling” was an element of the federal offense. It was also one (of several) triggers for the specific offense enhancement.
  Judge Fletcher explains, however, that it is possible to trigger this particular base offense level enhancement without a victim being strangled. Id. at *3. Because the conduct tied to the element of conviction – strangling – was not necessarily required for this guideline enhancement, the Ninth finds no double counting. 
  Disappointing result, but the Ninth’s old Reese test ultimately controls the double counting analysis.

How to Use: In Harrington, there was a good-faith legal dispute over a particular guideline enhancement. Notably, the USAO for the ED of Washington was not afraid to defend its legal position in the Ninth. The government allowed Mr. Harrington to enter a conditional plea, and take up a sentence imposed that was over 78 months. See id. at *2. Harrington is a good reminder that a conditional plea needn’t be an all-or-nothing proposition: they aren’t just to preserve appeals for suppression motions. Give Harrington to your local AFPD: other USAO’s should emulate ED WA’s admirable courage in allowing all types of conditional plea agreements.

For Further Reading: What a three days, in San Francisco.
District Attorney Chesa Boudin
  On January 8, 2020, former public defender Chesa Boudin swore in as the District Attorney for the City of San Francisco. See article here. Among other campaign promises, Mr. Boudin has pledged to eliminate gang enhancements. See article here 
  The day after Mr. Boudin swore in, US Attorney David Anderson promptly held a press conference and announced federal capital charges for alleged gang members. See article here
The Hon. US Attorney David Anderson
  The day after Mr. Anderson's press conference, on January 10th, Mr. Boudin fired the managing attorney of the D.A.’s gang unit. See article here.
  If you’re interested in Federalism, the proper relative roles of federal and city governments in local crime enforcement, and the power struggles over policy decision-making on criminal law issues, spend three days in the City by the Bay.

Image of the 2018 Federal Sentencing Guidelines from

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


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