United States v. Swallow, No. 16-30224 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit vacated defendant's sentence after he pleaded guilty to assault resulting in serious bodily injury. The panel held that the district court properly applied a sentencing enhancement for a dangerous weapon used during the commission of the offense under USSG 2A2.2(b)(2)(B). In this case, defendant's tennis shoes qualified as dangerous weapons when he used them to kick and stomp the victim’s head. However, the district court erred in applying an enhancement for an assault that was motivated by a payment or offer of money or thing of value under USSG 2A2.2(b)(5). The panel found that no evidence suggesting that defendant had been hired by someone to assault the victim or that he had been paid anything of value.
Court Description: 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. UNITED STATES V. SWALLOW 3
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