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No. 95-3813SI

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United States of America, *

*

Appellee, *

*

v. *

*

James Austin Dunnaway, *

*

Appellant. *

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No. 95-3814SI

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United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the Southern

* District of Iowa.

Jeffrey Colin Van Cleave, *

*

Appellant. *

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No. 96-1060SI

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United States of America, *

*

Appellee, *

*

v. *

*

Matthew David Cannon, *

*

Appellant. *

_____________

Submitted: May 14, 1996

 Filed: July 8, 1996

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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

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FAGG, Circuit Judge.

James Austin Dunnaway, Jeffrey Colin Van Cleave, Matthew David

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 repeatedly

in the head and body. During the attack, one of the assailants identified

himself as a "skinhead" and used a racial slur. The victim suffered

multiple injuries, including a boot imprint on his forehead that remained

for several days. The attackers returned to the party and reported they

had beaten a black man 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 the

same charge and guilty of conspiracy to commit a federal offense. See id.

§ 371. Cannon appeals his conviction, challenging the admission of

evidence that he is a skinhead and holds racist views. Dunnaway, Van

Cleave, and Cannon all appeal their sentences, asserting the enhancement

of their base offense level under U.S.S.G. § 2A2.2(b)(2)(B) (1994) is

impermissible double-counting. We affirm.

Cannon contends the district court committed plain error by admitting

evidence that he is a skinhead because the evidence was irrelevant. During

Cannon's trial, witnesses testified Cannon has a tattoo inside his lip that

says "skins" and another tattoo on his leg that says "LSD," which stands

for "Local Skins Division." Witnesses also testified Cannon had a shaved

head at the time of the assault. 

Because Cannon made a tactical decision not to object to admission

of the skinhead testimony during trial, he waived review of its admission,

even for plain error. United States v. Mihm, 13
-3-

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 on

notice of the anticipated skinhead testimony and told Cannon to make any

objections to the testimony during trial. Rather than objecting at trial,

however, Cannon used the evidence to argue the Government was persecuting

him for his membership in an unpopular group. In any event, admission of

the skinhead testimony was proper. The crime in this case involved

elements of racial hatred, so admission of the evidence did more than show

Cannon's bad character. See Dawson v. Delaware, 503 U.S. 159, 166-67

(1992). The testimony was also relevant to show the identity of the

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 in

admitting testimony about his views on racial issues. Witnesses testified

Cannon did not like black people, commonly used racial epithets when

referring to blacks, and believed interracial relationships were wrong.

Because Cannon was charged with a racially motivated crime, evidence of his

racist views, behavior, and speech were relevant and admissible to show

discriminatory purpose 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 sentenced

Dunnaway, Van Cleave, and Cannon under the aggravated assault guideline,

U.S.S.G. § 2A2.2 (1994). Section 2A2.2 sets a
-4-

base offense level of fifteen for "aggravated assault," meaning "a

felonious assault that involved . . . a dangerous weapon with intent to do

bodily harm . . . ." Id. n.1(a). Section 2A2.2(b) requires increases in

the base offense level 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 brandishing, 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 district court added four levels

to their base offense level under § 2A2.2(b)(2)(B).

Dunnaway, Van Cleave, and Cannon do not argue they should not be

sentenced under the aggravated assault guideline, or that the bottle and

boots are not dangerous weapons within the guideline's meaning, see id.

§ 1B1.1 n.1(d) (defining "dangerous weapon"). Instead, Dunnaway, Van

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 aggravated assault guideline.

See United States v. Hernandez-Fundora, 58 F.3d 802, 812-13 (2d Cir.),

cert. denied, 115 S. Ct. 2288 (1995); United States v. Hudson, 972 F.2d

504, 506-07 (2d Cir. 1992).

Along with 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 not

impermissible double-counting. United States v. Sorensen, 58 F.3d 1154,

1161 (7th Cir. 1995) (concrete block used as weapon); United States v.

Garcia, 34 F.3d 6, 11-12 (1st Cir. 1994) (car used as weapon); United

States v. Reese, 2
-5-

F.3d 870, 896 n.32 (9th Cir. 1993), cert. denied, 114 S. Ct. 928 (1994);

United States v. Williams, 954 F.2d 204, 206-07 (4th Cir. 1992) (metal

chair used as weapon). An assault qualifies as an aggravated assault under

§ 2A2.2 if the assailant possesses a dangerous weapon and intends to do

bodily harm. See Sorensen, 58 F.3d at 1161. Intent to do bodily harm with

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 uses

the object as a weapon, that is, does more than brandish, display, or

possess the object, does the assailant qualify for the enhancement under

§ 2A2.2(b)(2)(B). See id. Thus, "`the dangerous weapon adjustment

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 doublecounting, the district court properly enhanced the 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.