FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL DAVID SWALLOW, AKA Paul

Dean Swallow,

Defendant-Appellant.

No. 16-30224

D.C. No.

2:16-cr-00074-

WFN-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted December 4, 2017

Seattle, Washington

Filed June 11, 2018

Before: Richard C. Tallman and Paul J. Watford, Circuit

Judges, and Richard F. Boulware II,

*

 District Judge.

Opinion by Judge Watford

* The Honorable Richard F. Boulware II, United States District Judge

for the District of Nevada, sitting by designation.
2 UNITED STATES V. SWALLOW

SUMMARY**

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.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SWALLOW 3

COUNSEL

Colin G. Prince (argued), Federal Defenders of Eastern

Washington & Idaho, Spokane, Washington, for DefendantAppellant.

James A. Goeke (argued) and Alison L. Gregoire, Assistant

United States Attorneys; United States Attorney’s Office,

Spokane, Washington; for Plaintiff-Appellee.

OPINION

WATFORD, Circuit Judge:

Paul Swallow pleaded guilty to assault resulting in serious

bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153. 

On appeal, he challenges the district court’s calculation of his

sentencing range under § 2A2.2 of the United States

Sentencing Guidelines, the provision that governs aggravated

assault offenses. In particular, Swallow challenges two

enhancements imposed by the court: (1) a four-level increase

under § 2A2.2(b)(2)(B), which applies if “a dangerous

weapon (including a firearm) was otherwise used” during

commission of the offense; and (2) a two-level increase under

§ 2A2.2(b)(5), which applies if “the assault was motivated by

a payment or offer of money or other thing of value.” We

conclude that the district court properly applied the first

enhancement but erred by imposing the second.

The facts relevant to this appeal are straightforward but

tragic. Swallow and the victim of the offense were casual

acquaintances. Swallow’s wife gave the victim ten dollars to

purchase methamphetamine, with the expectation that the
4 UNITED STATES V. SWALLOW

victim would return later with the drugs. When Swallow and

his wife met up with the victim at a casino to obtain the

methamphetamine, the victim refused to provide the drugs or

return the money. Swallow and his wife later encountered the

victim in the parking lot of the casino. Egged on by his wife,

who called Swallow a coward for letting the victim rip them

off, Swallow decided to engage the victim in a fist-fight. 

Swallow swung first, knocked the victim to the ground, and

then, while wearing tennis shoes, proceeded to kick the

victim while he was on the ground. At first, the victim kicked

back and attempted to defend himself. But after Swallow

landed several vicious kicks to the victim’s torso and head,

the victim lay motionless, apparently unconscious. Rather

than walk away, Swallow continued to kick the victim in the

head with full force, as though he were kicking a football. 

Swallow then stomped on the victim’s head with the bottom

of his shoe, crushing the victim’s head into the pavement. 

The victim was hospitalized as a result of the attack and

suffered permanent cognitive impairment.

We will begin with the enhancement for use of a

dangerous weapon. As relevant here, the Guidelines define

the term “dangerous weapon” as “an instrument capable of

inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1

cmt. n.1(D)(i). There is no dispute that the victim suffered

serious bodily injury as that term is defined in the Guidelines. 

§ 1B1.1 cmt. n.1(L). The only question is whether Swallow

used an “instrument” capable of inflicting such injury with

the intent to injure his victim. United States v. Dayea,

32 F.3d 1377, 1380 (9th Cir. 1994). The district court

concluded that he did. That is a guideline-application

determination we review for abuse of discretion. United

States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en

banc).
UNITED STATES V. SWALLOW 5

There are two types of instruments that qualify as

dangerous weapons: those that are inherentlydangerous (such

as guns and knives), and those that, while not dangerous per

se, can become so by virtue of the manner in which they are

used. United States v. Smith, 561 F.3d 934, 939 (9th Cir.

2009) (en banc); United States v. Riggins, 40 F.3d 1055, 1057

(9th Cir. 1994). This latter category of instruments can

include virtually any object—including things like walking

sticks, leather straps, and tennis shoes—depending upon “the

manner in which they were used.” Riggins, 40 F.3d at 1057;

see Dayea, 32 F.3d at 1379. If the defendant uses such an

object to “augment the force of his physical assault,” in a

manner capable of inflicting serious bodily injury, the object

may constitute a dangerous weapon. United States v. Rocha,

598 F.3d 1144, 1157 (9th Cir. 2010).

In this case, the district court did not abuse its discretion

in concluding that Swallow’s tennis shoes qualify as

dangerous weapons, given the manner in which they were

used. Although tennis shoes are not inherently dangerous,

Swallow undoubtedly used his shoes to augment the force of

the kicks and the stomp he delivered to the victim’s head; the

shoes enabled Swallow to inflict greater harm than if he had

delivered the kicks and stomp with his bare feet. And

Swallow used his shoes to commit the assault in a manner

capable of producing serious bodily injury. Kicking someone

in the head with full force while he is lying on the ground

unconscious can obviously produce such injury. That is even

more true of stomping on someone’s head while the person’s

head rests on a hard surface, such as the parking lot pavement

involved here.

Our conclusion that Swallow’s tennis shoes qualify as

dangerous weapons is amply supported by precedent, both
6 UNITED STATES V. SWALLOW

from our circuit and our sister circuits. Our court has not yet

squarely addressed the issue, but we included tennis shoes

among the objects that can qualify as dangerous weapons in

Dayea. 32 F.3d at 1379. In Riggins, we held that the

defendant used a shoe as a dangerous weapon when she beat

her two-year-old son with it, although there the defendant

apparently held the shoe in her hand. 40 F.3d at 1057. And

in Rocha, we held that assault with a dangerous weapon

cannot be committed by using one’s bare hands or feet alone,

but we again suggested that kicking someone while wearing

shoes can qualify as use of a dangerous weapon, depending

on the manner in which the kicks are delivered. 598 F.3d at

1157. Several of our sister circuits have squarely addressed

this issue, and they have held that shoes qualify as dangerous

weapons when, as here, they are used to kick or stomp the

victim in a manner capable of producing serious bodily

injury. See, e.g., United States v. Velasco, 855 F.3d 691,

692–93 (5th Cir. 2017) (shoes used to stomp victim’s head

into prison floor); United States v. Steele, 550 F.3d 693, 699

(8th Cir. 2008) (kicking victim in torso with tennis shoes);

United States v. Serrata, 425 F.3d 886, 909–10 (10th Cir.

2005) (stomping on victim’s head with work boots).

In short, an object that is not inherently dangerous can

constitute a dangerous weapon if the defendant used the

object to augment the force of the assault, in a manner

capable of inflicting serious bodily injury. Here, the district

court properly concluded that Swallow’s tennis shoes

qualified as dangerous weapons when he used them to kick

and stomp the victim’s head. The court therefore properly

applied the four-level enhancement under § 2A2.2(b)(2)(B).

We reach a different conclusion with respect to the twolevel enhancement under § 2A2.2(b)(5). That enhancement
UNITED STATES V. SWALLOW 7

applies if “the assault was motivated by a payment or offer of

money or other thing of value.” U.S.S.G. § 2A2.2(b)(5)

(emphasis added). It serves the same function as the similar

enhancement found in the guideline covering assault with

intent to commit murder, which applies if “the offense

involved the offer or the receipt of anything of pecuniary

value for undertaking the murder.” § 2A2.1(b)(2). Both

enhancements are intended primarily to cover cases in which

the offense was “committed for hire.” § 2A2.2 cmt.

(background).

No evidence remotely suggests that Swallow had been

hired by someone to assault the victim, or that he had been

paid or offered anything of value for undertaking the assault. 

Instead, the undisputed evidence showed that Swallow

engaged in the assault because he had been egged on by his

wife, who called him a coward for letting the victim take their

money without providing the promised methamphetamine in

return. On these facts, the two-level enhancement under

§ 2A2.2(b)(5) cannot be applied.

Because the district court erred in calculating the correct

sentencing range under the Guidelines, and we cannot say the

error was harmless, we must vacate Swallow’s sentence and

remand for resentencing. See United States v. MunozCamarena, 631 F.3d 1028, 1030–31 (9th Cir. 2011) (per

curiam). Nothing we have said in this opinion, however,

should be taken to suggest that the 84-month sentence

originally imposed was substantively unreasonable. On

remand, the court should bear in mind that, under
8 UNITED STATES V. SWALLOW

§ 2A2.2(b)(3), “the cumulative adjustments from application

of subdivisions (2) and (3) shall not exceed 10 levels.”

SENTENCE VACATED; REMANDED FOR

RESENTENCING.