United States v. Pineda-Duarte, No. 18-6118 (6th Cir. 2019)
Annotate this CasePineda-Duarte, a citizen of Mexico, has twice been removed for entering the U.S. without authorization. He returned again and went to Clark County. Kentucky State Police had under surveillance a farm that was suspected of containing marijuana plants. They saw Pineda cultivating apparent marijuana plants, surrounded him, announced their presence, and ordered Pineda to “get on the ground.” Pineda swung a shovel he was holding, then dropped it and attempted to flee. After a struggle, the officers detained Pineda, who was charged with manufacturing more than 1,000 marijuana plants, 21 U.S.C. 841(a)(1) and reentering the U.S. after having been deported, 8 U.S.C. 1326(a). Pineda pleaded guilty to the manufacturing charge. The PSR recommended a two-step offense-level enhancement under U.S.S.G. 2D1.1(b)(2) because the “defendant used violence, made a credible threat to use violence, or directed the use of violence” in conjunction with a drug offense. Defense counsel framed Pineda’s action as reflexive rather than an attempt to injure the officer and disputed whether the conduct constituted “violence,” because the shovel did not make contact with the officer. The court applied the enhancement, characterizing the defendant as either having threatened to use violence or, alternatively, having attempted to use violence. The Sixth Circuit vacated. Neither characterization fits the Guideline provision. The conduct was not directing the use of violence and was more than a threat, so the application of the Guideline requires a finding that Pineda “used violence.”
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