In United States v. Duke, the Sixth Circuit considered the defendant’s challenge to several sentencing enhancements.
When Ronnie Duke was arraigned on a charge of failing to surrender for a sentence, his attorney proposed that he be held at one of two sites while he was awaiting trial. The Assistant U.S. Attorney (AUSA) objected and sought detention in another facility. With that, Mr. Duke cursed the AUSA, ran toward her, grabbed her by the back of the head, hit her several times with his fist, and repeatedly smashed her head into a table. Her legs were bruised when they were pushed into the table during the assault and she had an abrasion on her temple. Mr. Duke was subsequently charged with assaulting, resisting, or impeding certain government officers or employees in violation of 18 U.S.C. §§ 111(a)(1) and (b).
The district court applied a sentence enhancement based on its finding that the table was a “dangerous weapon” under U.S.S.G. § 2A2.2(b)(2). The court applied several other enhancements as well. Mr. Duke challenged all of the enhancements on appeal but the Sixth Circuit rejected his arguments.
The Sixth Circuit uses a “functional approach” to determine what constitutes a “dangerous weapon” under § 1B1.1 cmt. n.1(D). That “functional approach” requires “looking at the circumstances in which the [instrument] was used.” The Sixth Circuit previously noted that “in the proper circumstances, almost anything can count as a dangerous weapon[.]” Here, the district court found that the table as used by Mr. Duke was capable of inflicting death or serious bodily harm. In addition, the AUSA’s bruises and abrasion showed that the table was used “in a dangerous manner.” The Sixth Circuit held that those findings supported the conclusion that the table was a “dangerous weapon” pursuant to § 2A2.2. The Sixth Circuit also held that a table met the definitions of “object” and “instrument” in § 1B1.1 cmt. n.1(D).
The Sixth Circuit also addressed several double counting arguments made by Mr. Duke. Guideline Amendment 614 provides that the base offense level for aggravated assault (§ 2B2.2) and the weapon use enhancement in § 2B2.2(b)(2) shall apply to aggravated assaults that involve a dangerous weapon with intent to cause bodily harm. Relying on Amendment 614, the Sixth Circuit held that it is permissible double counting to consider the use of a dangerous weapon in calculating the base offense level under § 2A2.2(a) and a § 2A2.2(b)(2) enhancement.
Next, the Court rejected Mr. Duke’s argument that impermissible double counting occurred by using the victim’s bodily injury for enhancements under § 2A2.2(b)(3)(A) and § 2A2.2(b)(7). The Sixth Circuit acknowledged that both enhancements were based on the infliction of bodily harm but two enhancements can stem from the same conduct if they “penalize distinct aspects of [a defendant’s] conduct and distinct harms.” In the Court’s view, they did so here because § 2A2.2(b)(3)(A) enhances the defendant’s offense level if “the victim sustained bodily injury.” Section 2A2.2(b)(7), on the other hand, ensures “punishment at or near the maximum penalty for the most egregious conduct covered by 18 U.S.C. § 111[.]” See 2A2.2 cmt. There was no impermissible double counting because the assault of the AUSA “is distinct from general infliction of bodily harm[.]”
Lastly, Mr. Duke’s base offense level was calculated under § 2A2.2 because he was convicted under 18 U.S.C. § 111 which prohibits assaulting government officers or employees. He also received a sentence enhancement under § 3A1.2(b) because the victim was a government officer or employee. There was no impermissible double counting because the Sentencing Commission intended to attach multiple penalties to the same conduct. The Sixth Circuit noted that under § 2A2.2 cmt. n.4, if § 2A2.2(b)(7) applies then § 3A1.2 also applies. The Court reasoned that if those guidelines were intended to apply to the same conduct, then it followed that the Commission intended “§§ 3A1.2 and 2A2.2 as a whole to apply with respect to the same conduct as well.”