weapon enhancement just record applied to the case was a simple assault mr swallow and his wife were to see no outside spokane miss swallow you mean simple in the case of  relatively complex case or i do simple versus aggravated assault because the assault was pretty aggravated not in the sense that there was a dangerous weapon well it left the victim with permanent brain injury agreed your honor and i think the question here is what did he use to do that and it then the district court found shod feet against concrete or asphalt surface as the defendant lay prone helpless on the ground in the defendant by his own admissions on i think that's what what drove the district courts in handsome and did it in part the district court ruled and all shifted the dangerous weapon and has because it sounds like it's appropriate to start there the district court ruled that it was the concrete in sentencing the district court pulled the tear in the prison and they attempted to throw the gentleman over the i said yeah but he or her the victim is already on the ground and the surface is i don't know i guess what if he put his head you would you agree that that would be a dangerous weapon i would agree that the vice is a dangerous weapon what's the difference between a vice and stomping on somebody's head on a hard surface with shod feet the difference is that the ninth circuit ruled in roach that essentially we would be merging the crimes of use of a dangerous weapon and not use of a dangerous weapon and granted that there is case law for shod feet being found as an enhancement i do not believe the record supports the district court ruled that chvez my question you would agree that there is case law from other chords stab i would your yes can we not affirm on any grounds supported by the record if that is true i do i do not believe that the shod feet in this case qualify as i looked i'm sure others looked at reagan a case that i think is exemplary of exactly the sort of theory that anything can be used as a dangerous weapon where a mother pulls out a shoe and beats a two year old with it intentionally using it even roaches says that we look at the manner in which the implement yes it is in there with the district court did here the district court looked at the concrete and said it believe that was a dangerous weapon as it was used so yes i think the question and the answer is yes but but had the victim been simply lying on on the parking lot surface there would have been a problem it was the application of force from the shod feet between the concrete surface and the victim's head that caused the district court to conclude that there was a dangerous weapon here i think i agree your honor it i think what it matters is whether we're discussing the foot shod foot or the concrete and as i read the record the district court was very clear that it was concrete that was the weapon and the problem is that either it wasn't saying that the concrete leaped up and beat the victim on the head was he was saying it was the stomping on the victim's head between the bottom of the shod foot and the surface of the parking lot that produced these horrendous injuries yes your honor but of course mr swallow could have accomplished that with a shod foot or with a bare foot so as i read a roach if i were to take someone's head and slam it with my hands into the concrete the concrete is not a dangerous weapon what the government is asking is that if i take my foot and slam someone's head into the concrete well now the concrete is a dangerous weapon and so i'm still trying to understand the intellectual distinction between putting somebodies head in a vice and stomping on their head with a foot on the concrete it seems to me if we're looking at the manner in which the assault was occurred that the enhanced it is appropriate i think that the distinction may be that the earth is always present in any fight and the fact that somebody simply has their head kicked into the ground or thrown into the ground it can be accomplished without a weapon and rocher the ninth circuit stated that we generally think of congressional intent that congress thought of a weapon as an object which we pick up and use which is exactly consistent with the regulations and that's not what happened in this case counts are you saying that concrete could never be a weapon because if we were to follow that guidance from roche you're applying it would mean that congress could never be found to be a dangerous weapon is that what you're saying i don't think the court really needs to go to the quite that far i think in this circumstances why would i mean if you're saying that a weapon has to be wielded you're never going to be able to when i read what seems to be hard to find circumstances which will be will them as someone said to an individual put your head on the concrete so i can stomp on it then perhaps the congress being will do what given what you're suggesting would seem that the court could never find it conquered be dangerous weapon i think to answer to your honor's question any time that a person picks up another and body slams them into the ground or kicks them into the ground it is a bad assault which a district court can obviously consider under thirty five fifty three this is effectively procedural under those circumstances as i read roach a if i body slam someone into the ground using my hands it is not use of a dangerous weapon in the concrete and i think that what the government is effectively asking for is to open up a line of cases where if i slam someone's head into the ground with my hands the ground is now a dangerous weapon if it's my foot i use its i'm sorry hands would not be a dangerous weapon feat would be a dangerous weapon and then i think the next thing that would happen is we get a case where a guy elbow somebody whose head into the ground and then needs something on the ground and all of a sudden now we have a bunch of lines of cases they're all separate about whether the ground is or is not a dangerous weapon depending on what body part we use to slam it into it and that doesn't make any sense you can ask this there's no reason for us to give a different meaning to dangerous weapon in the guidelines dangerous but why why should we just follow those cases i guess they seem i mean you could go either way on the question but they seem sound to me why would we just follow those and say we're going to apply the same meaning for dangerous weapon guidelines that make a ruling on it because there was a reason it did not dress that i think it was uncomfortable getting there the second reason is i don't go i don't think that the district i think the district has a rightfully wary of what was going on which is simply declaring any fight in which someone gets kicked a dangerous weapon because you happening and you happen to be wearing your tennis shoes i think of myself in spokane it gets cold there if i'm going to work and i happen to be wearing my gloves and i get into a fist fight on the street i think i have a pretty strong argument that the fact that i happen to be wearing my mittens does not make them dangerous weapons simply because they protected my hands and allowed me to deliver a more furious blow i think it is a different question when a mother picks up issue and beats her two year old child it she's clearly using it as a weapon i thought there was some case law that said a professional boxer beats up somebody that could be assault with a deadly weapon i think that is sounds appropriate to me and i believe that's correct but again i think that's a good reason to send it back to the district court to make a factual finding about whether mr swallow used this particular shoe so i don't think that the ninth circuit needs to make a ruling that all assaults where a person kick someone and happens to be other than barefoot is using a dangerous weapon the i gree with you on that but our cases say that you have to look at the manner in which the thing was used and then in addition it has to have been used in a way that's likely to i think to inflict serious bodily injury so yeah just tapping someone in their leg while they're laying on the ground with your tennis shoes on that's not going to qualify but mr tallman was indicating the manner in which the shoe was wielded here was quite deliberately used to inflict great bodily harm on this person so i don't see why that's all we would need to say and then we'd leave all those other shoe shot for shot for other i would have to respectfully simply disagree or i think the big distinction is this is just shoes that happened to me was mr swallow could have accomplished exactly this is salt whether or not he was barefoot he just happened to not be barefoot and there riggins you have a case where somebody picked up an everyday object and used it as a weapon that is dischord found that that would be defined so we sent it back just for the district court to put that into its finding and then in order to support know number one i think the district court could have ruled that and it was very clearly put to the oregan yes your honor i would challenge under reagans as distinct because it simply happened to be worn in its usual fashion in the same way that gloves i might be wearing down the street very different than picking up an object like a shoe and beating somebody with it and i  sorry mr prince with the district court have been appropriate to depart upwards from the guideline based on the severity of the injuries and the defendant's prior record of assault two very upwards under thirty five fifty three i think the district court very clearly could have considered that yes ok all right the only other point i'll reserve a moment for rebuttal if you sometime thank you ecause i know you were trying to serve it up for this record on a silver platter but for whatever reason the judge didn't want to take it so maybe you can address just boars question or i don't know who  guess i don't really see much of a point in sending it back for the district judge to make an explicit finding but is that why why would we do that if we had some doubt i think the record is sufficient to the court made an implied finding that the heat were used in conjunction with the floor of the vice and i do agree with the judge question that's exactly what would happen if this matter goes back i think it's clear from the colloquy and the judge a sense here marks the judge would find that shod feet were used in this case and i think the judge did find that at the time  were the law that we could just skip straight to reasonable means but we do have to first determine whether the court got the baseline correct and if the court somehow made an error on this point i think we would have to send it back even if we thought the ultimate outcome would be the same absolutely your honor and i but i do think on this record that it is clear the court did make and did not make clearly erroneous findings with the guard of the guidelines of the court analyze the severity of the injuries analyze the use of the concrete in conjunction with the shot feet in conjunction with a real that it isn't just that the person hit the floor once right the language is very specific about the fact that a weapon has to be wielded and that's why in that case it's actually a fairly significant step of reversing a conviction based upon it so rocha the use of a dangerous weapon had to be an element found by by the jury so there's a death a different factual situation we find ourselves here this is simply the application of the guidelines but what is the definition of the differen mean certainly the standard might be different as to how they make whether or not to defer to the juries determination but are you arguing that because it was this old statute that the definition of dangerous weapon should be different well i think the court is what i like to unless my colleagues understand it's my like to shift to the other and has been because it seems that you're suggesting a tighter standard that is beyond what sort of common sense which is basically the judge appeared to play but for causation which would open up this particular enhancement to a whole host of transactions where money was simply involved and there's i have a specific finding this case that the individuals particularly motivated by payment and oftentimes case are slightly different so why would we send it back on that particular application well i think in this case there were findings by the court that methamphetamine the money was the genesis of this all this inextricably intertwined with the i don't need to hear anything on this i think we can have to send it back on that point maybe you'll get the same sentence because the judge can can give a higher and go up but that is just this guy was not hired he wasn't paid or given anything of value to commit the assault and i  concede there is if there is not a a payment a exchange of money for the assault this is not a for hire situation there's not a guideline for that but it is that is this guideline that's what got applied here that's what it's that's what it's all about well it's that's a hand this is the commentary says apply this particular provision i don't remember the numbers now it's to be read in the same way as for the that other the two a yeah the murder one you go look at that and that's clearly talking about where you get paid or are offered something and so they're supposed to be read to do the same thing why they use different language i have no idea but they told us that they wanted to be construed in conjunction with the other one so i just think that your argument is not going to fly on this point oh i would say on that your honor is that there is i'll just leave that be i think it sounds to me like the court's overall concern on the shod foot and has been is are we just sending this back to the district court to waste the district court's time and declare the shod feet a dangerous weapon something just a waste well i mean he's under carty he's got to properly calculate procedurally the guideline range and i guess the question is whether or not we're comfortable enough based on the record else and what what i would like to see is this go back to the district court i do believe there is there is a reason the district court of voided very actively making a finding that this was a dangerous weapon and i  district court ruled on i think very actively avoided that it said as mr dickey said this was a use not only of the kicking and stomping but the concrete for the government mr grech you got back up after that finding after the district court say it i find this and said i quoted it also five times also over and over and over again in conjunction with that paper service also a weapon and the district court just said all right now i've made my notes it did not make this finding and it's for a reason think it's clear and the court finds that the kicking and stomping on his head while he was laying on conscious and that's what the p s r said was clearly a use not only of the kicking and stomping but the concrete floor it makes a huge difference in quote isn't that he's saying both shoes and the floor that that's how i read it i read that your honor is not only of kicking he's not only kicking and stomping him he's making a use of the concrete floor and i think the government understood that exactly as i do because mr jackie got up and said your honor also i understanding the court's finding and agreeing with the court's finding i would also offer for the record the mistress to all testified that he kicked him you know kick struck the victim several times in the chest and head as well also agreeing with the court the government also believes that the sketchers the fact that the foot was shot did make it the government understood that the district court was saying i am finding the concrete am finding the concrete is the dangerous weapon still back and says no on line thirteen or fourteen because it's a combination of the bow it's a combination of the kicking happened whether it's concrete or the shoe exactly but it doesn't say that it's clearly found that the combination was a dangerous weapon why isn't that enough so number one i absolutely agree with you on earth there can be multiple we can have endless numbers of dangerous weapons the problem under roche is that we have this line of reasoning that says if i use my hands and feet i have not used a dangerous weapon no matter how bad the assault is no matter how it the if i guess i should i would watch as  weapon has to be wielded right that's different than simply saying every time it doesn't say every time involved use their bare hands it can never be dangerous weapon it says a weapon as i was at the very cover a weapon is something has to be willed it right there so i can wield things in terms of their using them for a particular purpose including concrete shoes together i agree your honor i as i read wrote it's his body slamming and its concern was this we are going to merge the is the crimes of assault with a weapon an assault without a weapon and i think that is an important distinction and so i think that the district court this should go back to the district court i think that the district court can make a distinction between riggins and this case this happens to be an finally go back to the policy we're punishing someone who has made a choice to intentionally pick up something to augment the force of their attack and that's not what happened here that's what happened in reagans they the mother picked up something to beat a child and i think that is an important distinction because otherwise we start applying dangerous weapon and hand springs for people wearing clothes for mittens for shoes that they did not shoes and so we are all contacts i mean you are going to have differences depending on how the implement was wielding i agree your honor and i think the district court should go back and make that finding was their intent did mr swallow specifically should he be punished for this for wearing shoes because you specifically perhaps positioned submitted always enjoyable to have both of you in the courtroom thank you