_____________ No. 95-3813SI

_____________ United States of America, * * Appellee, * * v. * * James Austin Dunnaway, * * Appellant. *

_____________ No. 95-3814SI

_____________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the Southern * District of Iowa. Jeffrey Colin Van Cleave, * * Appellant. *

_____________ No. 96-1060SI

_____________ United States of America, * * Appellee, * * v. * * Matthew David Cannon, * * Appellant. *

_____________ Submitted: May 14, 1996 Filed: July 8, 1996

_____________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

_____________

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FAGG, Circuit Judge.

James Austin Dunnaway, Jeffrey Colin Van Cleave, Matthew Davi d Cannon, and two other white men left a party to assault any black man they could find. They found a black man in a public park talking with his wife , who is white. The white men attacked the black man, kicking him repeatedl y in the head and body. During the attack, one of the assailants identified himsel f as a "skinhead" and used a racial slur. The victim suffere d multiple injuries, in cluding a boot imprint on his forehead that remained for several days. The attackers returned to the party and reported they had beaten a black ma n because he had been sitting in a park with a white woman. Dunnaway and Van Cleave later pleaded guilty to interference with
a person's enjoyment of a public facility because of the person's race
. See 18 U.S.C. § 245(b)(2)(B) (1994). A jury found Cannon guilty of th e same charge and guilty of conspiracy to commit a federal offense. See id. § 371. Cannon appeals his conviction, challenging the admission o f evi dence that he is a skinhead and holds racist views. Dunnaway, Va n Cleave, and Cannon all appeal their sentences, asserting the enhancement of thei r base offense level under U.S.S.G. § 2A2.2(b)(2)(B) (1994) i s impermissible double-counting. We affirm.
Cannon contends the district court committed plain error by adm itting evidence that he is a skinhead because the evidence was irrelevant. Durin g Cannon's trial, witnesses testified Cannon has a tattoo inside his lip tha t says "skins" and another tattoo on his leg that says "LSD," which stands for "Local Skins Divi sion." Witnesses also testified Cannon had a shaved head at the time of the assault.

Because Cannon made a tactical decision not to object to admissio n of the skinhead testimony during trial, he waive d review of its admission, even for plain error. United States v. Mihm , 13

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F.3d 1200, 1204 (8th Cir. 1994); United States v. Yu-Leung , 51 F.3d 1116, 1122-23 ( 2d Cir. 1995). Before trial, the district court put Cannon o n notice of the anticipated skinhead testimony and told Cannon to make any objections to the testimony during trial. Rathe r than objecting at trial, however, Cannon used the evidence to argue the Government was persecuting him for his membershi p in an unpopular group. In any event, admission of the skinh ead testimony was proper. The crime in this case involve d elements of racial hatred, so admission of the e vidence did more than show Cannon's b ad character. See Dawson v. Delaware , 503 U.S. 159, 166-6 7 (1992)
. The testimony was also relevant to show the identity of th e attackers. See United States v. Thomlinson , 897 F.2d 971, 973 (8th Cir. 1990). Indeed, one of the assailants identified himself as a skinhead and the victim described his assailants as having shaved heads.

Cannon also contends the district court committed plain error i n admitting testimony about his views on racial is sues. Witnesses testified Cann on did not like black people, commonly used racial epithets whe n referring to blacks, and believed interracial relationships were wrong
. Because Cannon was charged with a racially motivated crime, evidence of hi s rac ist views, behavior, and speech were relevant and admissible to sho w discriminatory purpos e and intent, an element of the charges against him. Wisconsin v. Mitchell , 508 U.S. 476, 489 (1993); United States v. Stewart , 65 F.3d 918, 930 (11th Cir. 1995), cert. denied , 116 S. Ct. 958 (1996) ; O'Neal v. Delo , 44 F.3d 655, 661 (8th Cir.) cert. denied , 116 S. Ct. 129 (1995); United States v. Franklin , 704 F.2d 1183, 1187-88 (10th Cir.) , cert. denied , 464 U.S. 845 (1983). Thus, admission of this evidence was not erroneous, much less plainly erroneous.

We now turn to the sentencing issue. The district court sentence d Dunnaway, Van Cleave, and Cannon under the aggravated assault guideline, U.S.S.G. § 2A2.2 (1994). Section 2A2.2 sets a

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base o ffense level of fifteen for "aggravated assault," meaning " a felonious assault that involved . . . a dangerou s weapon with intent to do bodily harm . . . ." Id. n.1(a). Section 2A2.2(b) requires increases in the base offense leve l when specific offense characteristics exist. When a gun is not discharged but "a dangerous weapon . . . was otherwise used," the district court must increase the base offense level by four levels
. Id. § 2A2.2(b)(2)(B). "Otherwise us[ing]" a dangerous weapon means "more than br andishing, displaying, or possessing" it. Id. § 1B1.1 n.1(g)
. Because Dunnaway, Van Cleave, and Cannon used a bottle and their boots as dangerous weapons during the assault, the distri ct court added four levels to their base offense level under § 2A2.2(b)(2)(B).

Dunnaw ay, Van Cleave, and Cannon do not argue they should not b e sentenced under the aggravated assault guideline, or that the bottle and boo ts are not dangerous weapons within the guideline's meaning, see id
. § 1B1. 1 n.1(d) (defining "dangerous weapon"). Instead, Dunnaway, Va n Cleave, and Cannon assert the four-level enhancement double-counts their use of the bottle and boots as dangerous weapons because their use of the weapons was already considered in deciding their crime was an aggravated assault. They assert objects that are not inherently dangerous, such as boots, must be used before the objects become dangerous weapons involved in an assault, triggering application of the agg ravated assault guideline. See United States v. Hernandez-Fundora , 58 F.3d 802, 812-13 (2d Cir.) , cert. den ied , 115 S. Ct. 2288 (1995); United States v. Hudson , 972 F.2 d 504, 506-07 (2d Cir. 1992).
Along wit h most circuits that have considered the issue in the same context, we conclude the enhancement under U.S.S.G. § 2A2.2(b)(2)(B) is no t impermissible double-counting. United States v. Sorensen , 58 F.3d 1154, 1161 (7th Cir. 1995) (concrete block used as weapon); United States v
. Gar cia , 34 F.3d 6, 11-12 (1st Cir. 1994) (car used as weapon); Unite d States v. Reese , 2

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F.3d 870, 896 n.32 (9th Cir. 1993), cert. denied , 114 S. Ct. 928 (1994); Unite d States v. Williams , 954 F.2d 204, 206-07 (4th Cir. 1992) (meta l chair used as weapon). An assault qualifies as an aggravated assault unde r § 2A2.2 i f the assailant possesses a dangerous weapon and intends to d o bodily harm. See Sorensen , 58 F.3d at 1161. Intent to do bodily harm wit h an object that is not inherently dangerous might be shown by conduct that falls short of actual use of the object. Only when the assailant then use s the object as a weapon, that is, does more than brandish, display, o r possess the object, does the assailant qualify for the enhancement under § 2A2.2(b)(2)(B). See id. Thus, "`the dangerous weapon adjustmen t rationally reflects the Guideline's graduated adjustment scheme.'" Id
. (quoting Williams , 954 F.2d at 206).

Because the enhancement under § 2A2.2(b)(2)(B) is not double

counting, the district court properly enhanced t he sentences in this case. Accordingly, we affirm Cannon's conviction and sentence. We also affirm the sentences of Dunnaway and Van Cleave.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.