F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

P A U L D A V I D S W A L L O W , AKA Paul Dean Swallow, Defendant-Appellant. N o. 16-30224

D.C. No. 2:16-cr-00074- W F N-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of W a shing ton W m. F remming Nielsen, Senior District J udg e, Presiding

Arg u ed and Submitted December 4, 2017

Seattle, W a shing ton

F iled J une 11, 2018

B efore: Richard C. Tallman and Paul J . W atford, Circuit J udg es, and Richard F

. B oulware I I
, * District J udg e.

Opinion by

J u dg e W atford

* T h e Ho n orab le Rich ard F

. B o u lw are II, Un ited States District J u dg e f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

T h e panel vacated a sentence imposed following th e defendant’s g uilty p lea to a ssault r esulting in seriou s bodily injury , and remanded for resentencing

.

The panel held that the district court properly applied an

e nh a n c e m ent under U.S.S.G. § 2A2.2(b)(2)(B ), which app l i e s if “a dang erous weapon (including a firearm) was othe rwise used” during commission of t h e offense. The panel wrote that the district court properly concluded that the defendant’s tennis shoes q

ualified as dang erou s w eapons when h e used them to kick and stomp the victim’s head.

The panel held that the district court erred in apply ing an enhancement under U.S.S.G. § 2A2.2(b)(5), which applies if “the assault w as motivated by a pay ment or offer of money o r other thing of value.” The panel observed t h a t n o evidence remotely sug g ests tha t t he defendant had been hired b y

someone to ass ault the victim, o r that he had been p aid
any thing of value for undertaking the assault.

* * T h is su m m ary co n s titu tes n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Colin G. Prince ( arg ued), F e deral Defenders o f Eastern W a shing ton & I d aho, Spokane, W ashing ton, for DefendantAppellant.

J ames A. Goeke (arg

ued) a n d A l i son L

. Greg oire, Assistant United States Attorney s; Un i t e d States Attorney ’s Office, Spokane, W a shing ton; for Plaintiff-Appellee.

OP INION

W A TF ORD, Circuit J udg e:

Paul Swallow pleaded g uilty to assault resulting in serious bodi l y injury
, in violation of 1 8 U.S.C. §§ 113(a)(6), 1153. On appeal, he challeng es the district court’s calculation o f his sentencing rang e under § 2A2.2 of the United States Sentencing Guidelines, the provision that g overns ag g ravated

a s sault offenses. I n particular, Swallow challeng es t w o enhancements imposed by the court: (1) a four-level increase under § 2A2.2(b)(2)(B )
, which applies if “ a d a ng erous weapon (including a f

irearm) was otherwise used” during commission of the offense; and (2) a two-level increase under § 2A2.2(b)(5), which applies if “the a ssault was motivated b y

a pay ment or o ffer of money or other thing of value.” W e conclude that the dist r i c t court properly applied the first enhancement but erred by imposing the second.

The facts relevant to this appeal a re straig htforward but trag ic. Swallow and the v ictim o f t h e offense were casual acquaintances. Swallow’s wife g ave the victim ten d ollars to purchase metha m p h e tamine, w ith the ex pectation that theU N I T E D S T A T E S V

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victim would return later with the drug s. W hen Swallow a nd his wife met up with t h e v i c t i m at a c asino to o btain the methamphetamine, the victim refused to provide the drug s o r return the money

. Swallow a nd his wife later encountered the victim in the parking lot o f the casino. Eg g ed on by his wife, who called Swallow a c oward for letting the victim rip them off, Swallow decided to e ng a g e the victim in a fist

- f i gh t

. Swallow swung first, knocked the victim to the g ro u n d, a nd then, while w earing tennis shoes, proceeded to k ick the victim while he was on the g round. At first, the victim kicked back and attempted to defend himself. B u t after Swallow landed several vicious k i c k s to the v ictim’s torso and head, the victim lay motionless, apparently unconsc i o u s. Rather than w alk away , Swallow continued to kick the victim in the head w ith full force, as thoug h he w ere kicking a f ootball. Swallow then stomped on the v ictim’s head with the b ottom of his shoe, crushing the victim’s head i n t o the pavement. The victim was hospitaliz ed as a resu l t of the attack a nd suffered permanent cog

n itive impairment.

W e will b eg in with the enhancement for use o f a dang erous weapon. A s relevant here, the Guidelines define the term “ dang erous weapon” as “an instrument capab l e o f inflicting death or s e r ious bodily injury

. ” U.S.S.G. § 1B 1.1
cmt. n.1(D)( i). There is no dispute that the victim suffered serious bodily injury as that term is defined in the Guidelines. § 1B 1.1 cmt. n.1(L ) . The only question is whether Swallow used an “instru ment” capable of inflicting such injury with the intent to injure his victim. United States v

. D a yea , 32 F .3d 1377, 1380 (9th Cir. 1994). The d i s t rict court concluded that he did. That is a g uideline-app l i cation determination we revie w f o r abuse of discretion. United States v. Gasca-Ruiz
, 852 F .3d 1 167, 1170 (9th Cir. 2017) (en banc).U N I T E D S T A T E S V

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There a re two ty

p e s of instruments that qualify a s dang erous weapons: those that are inherently dang erous (such

as g uns and knives), and those that, while not dang e rous per

se , can b ecome so by virtue of the manner in which they are used. United States v. Smith
, 561 F .3d 934, 939 (9th C i r. 2009) ( en b anc); United States v. Riggins
, 40 F .3d 1055, 1057 (9th Cir. 1994). This lat t e r categ ory of instruments can include v irtually any object—including thing s like walking sticks, leather straps, and tennis shoes—depending upon “the

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

see Dayea
, 32 F .3d at 1379. I f the defendant u s e s s u ch a n obje c t to “aug ment the force of his p hy sical assault,” in a

manner capable of inflicting serious bodily injury
, the object
may constitute a dang erous weapon. United S tates v. Rocha
, 598 F .3d 1144, 1157 (9th Cir. 2010).

I n this case, the district court did not abuse its discretion in concluding that Swallow’s tennis shoes qualify a s dang erous weapons, g iven the manner in which th ey were used. Althoug h tennis shoes are n ot i n h e r ently d ang erous, Swallow u ndoubtedly used his shoes to aug ment the force o f the kicks and the stomp he delivered to the victim’s h ead; the shoes enabled Swallow to inflict g reater harm than if he had delivered the kicks and stom p w i th his bare f e et. A nd S wa l l o w u sed his shoes to c ommit the assault in a manner capable of producing serious bodily injury

. Kicking someone in the head with f

u l l f orce while he is ly ing on the g r ound 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 p arking lot pavement involved here.

Our conclusion that Swallow’s tennis shoes qualify a s dang ero u s weapons is amply supported by precedent, bothU N I T E D S T A T E S V

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from o ur c ircuit and our sister circuits. O ur court has n o t y et

s q uarely addressed the issue, but we included tennis sho e s among the objects that can qualify as dang erous weapons i n Dayea

. 3 2 F .3d a t 1379. I n Riggins
, we held that the defendant used a shoe as a dang erous weapon when she beat her two-y ear-old son w ith it, althoug h there the d ef e n d ant apparently held the shoe in her hand. 40 F .3d at 1057. A nd in Rocha
, we held that a s s a ult with a dang e rous weapon cannot be committed by u sing one’s bare hands or feet alone, but we ag ain sug g e sted that k icking someone while wearing shoes can qualify as use of a d a n g e rous weapon, depending

on the manner in which the kicks are delivered. 598 F

. 3d at 1157. Several of our sister c ircui t s h a ve squarely addressed this issue, a

nd they have held that shoes qualify as dang erous weapons when, as here, they are u s e d t o kick or stomp the victim in a manner capable o f producing serious bodily injury

. See, e.g. , United States v

. Velasco
, 85 5 F .3d 691, 692–93 (5th Cir. 2017) (shoes u sed to s t o m p victim’s head into prison f

loor); United States v. Steele
, 550 F .3d 693, 699 (8th Cir. 2008) ( kicking victim in torso w i t h t e n nis shoes); United States v. Serrata
, 425 F

. 3 d 886, 9 09–10 (10th Cir. 2005) (stomping on victim’s head with work boots).

I n s hort, an object that is not inherently d ang erous c a n constitute a d ange r o u s weapon if the defendant used the object to aug ment the f o rc e of the assault, in a manner capable of inflicting serious bodily injury

. H ere, the district
court p roperly concluded that Swallow’s tennis shoes qualified as dang erous weapons when h e used them to k ick and stomp the victim’s head. T h e court therefore properly applied the four-level enhancement under § 2A2.2(b)(2)(B ).

W e reach a different conclusion with respect to the twolevel enhancement under § 2A 2.2(b)(5). That enhancementU N I T E D S T A T E S V

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applies if “the a ssault was motivated by a payment or offer o f
money or oth e r t h i ng of value.” U.S.S.G. § 2A2.2(b)(5) (emphasis added). I

t serves the same function as the similar enhancement f

ound in the g uideline covering a ssaul t w i t h int e n t to commit murder, which applies if “the offense involved the offer or the r eceipt of any thing of pec u n i a r y val u e f or undertaking the murder.” § 2A2.1(b)(2). B oth enhancements are intended primarily to cover cases in which
t he offense was “ committed f or hire.” § 2A2.2 c m t

. (backg r ound).

No evidence remotely sug g ests that Swallow had been h ired by someone to assault the victim, or that he had been paid o r offered any

thing o f value for undertaking the assault. I nstead, the undisp u t e d e v idence showed that Swallow
eng ag ed in the assault because h e had been e gge d o n 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.

B e cause the district court erred in calculating the correct sentencing rang e under the Guidelines, and we cannot say the error was harmless, we must vacate Swallow’s sentence and

re m and for resentencing

. See U nited States v. MunozCamarena
, 6 3 1 F.3d 1 028, 1030–31 (9th Cir. 2011) (per curiam). N othing we have said in this opinion, however, should be taken to sug g est th a t the 84-month sentence orig inall y i m posed was substantively unreasonable. On remand, the court should bear in mind that, underU N I T E D S T A T E S V

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§ 2A2.2(b)(3), “the cumulative adjustments f rom a pplication of subdivisions (2) and (3) shall not ex ceed 10 levels.”

SE N T E N C E V ACATED; R EMANDED F OR RESENTENCING

.