FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER RICHARD

HARRINGTON,

Defendant-Appellant.

No. 18-30141

D.C. No.

1:17-cr-02030-SAB-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted April 12, 2019

Seattle, Washington

Filed December 24, 2019

Before: William A. Fletcher, Consuelo M. Callahan,

and Morgan Christen, Circuit Judges.

Opinion by Judge W. Fletcher
2 UNITED STATES V. HARRINGTON

SUMMARY*

Criminal Law

Affirming a sentence for assault by strangling a spouse in

Indian country, the panel held that the district court’s

application of a three-level enhancement set forth in U.S.S.G.

§ 2A2.2(b)(4) – for the specific offense characteristic of

strangling a spouse – does not constitute impermissible

double counting, because it is possible to be sentenced under

U.S.S.G. § 2A2.2(a), which sets the base offense level for a

broad range of conduct, without having strangled one’s

spouse.

COUNSEL

JeremyB. Sporn (argued), Federal Defenders of Washington,

Yakima, Washington, for Defendant-Appellant.

Thomas J. Hanlon (argued), Assistant United StatesAttorney;

Joseph H. Harrington, United States Attorney; United States

Attorney’s Office, Yakima, Washington; for PlaintiffAppellee.

* 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. HARRINGTON 3

OPINION

W. FLETCHER, Circuit Judge:

Walter Harrington appeals the sentence imposed

following his guilty plea to assault by strangling a spouse in

Indian country in violation of 18 U.S.C. § 113(a)(8). 

Harrington contends that the district court impermissibly

double counted when it applied a three-level enhancement for

strangling a spouse under § 2A2.2(b)(4) of the U.S.

Sentencing Guidelines (“Guidelines”). He contends that

because his conviction was for strangling a spouse, that

conduct was already accounted for in the base offense level

of § 2A2.2(a). We affirm the district court.

I. Factual and Procedural Background

On March 25, 2017, Walter Harrington, a member of the

Round Valley Indian Tribes, assaulted his wife within the

Yakama Indian Reservation. He beat and strangled her,

resulting in extensive bruising, neck pain, hemorrhaging, and

two fractured ribs.

Harrington pleaded guilty to domestic assault and battery

and to malicious mischief in Yakama Nation Tribal Court. 

The federal government charged Harrington in federal district

court with one count of assault of a spouse by strangulation

under 18 U.S.C. § 113(a)(8) and one count of assault with

intent to commit murder under 18 U.S.C. § 113(a)(1).

Harrington pleaded guilty to the assault by strangulation

count in exchange for the government’s dismissal of the

assault with intent to commit murder count. The parties

agreed to a base offense level of 14 under U.S.S.G.
4 UNITED STATES V. HARRINGTON

§ 2A2.2(a) and a seven-level enhancement under

§ 2A2.2(b)(3)(C) because the victim suffered permanent or

life-threatening bodily injury. Harrington and the federal

government disagreed over whether the base offense level

should be increased by three levels under § 2A2.2(b)(4)

because the offense involved strangling a spouse. The federal

government agreed to recommend a sentence of no more than

a 78-month term of imprisonment, and Harrington agreed to

recommend a sentence of no less than a 41-month term of

imprisonment.

The Presentence Investigation Report (“PSR”)

recommended a total adjusted offense level of 21 and a

criminal history category of V, resulting in an advisory

guideline range of 70 to 87 months. The offense level

included a base offense level of 14 under U.S.S.G.

§ 2A2.2(a), a seven-level increase under § 2A2.2(b)(3)(C),

and another three-level enhancement under § 2A2.2(b)(4). 

The PSR also recommended a three-level reduction for

acceptance of responsibility and cooperation.

Harrington objected to the three-level enhancement under

§ 2A2.2(b)(4) for strangling a spouse, arguing it constituted

impermissible double counting. Harrington argued the

enhancement targets conduct that is already an element of the

offense of conviction, and, therefore, the conduct is already

accounted for in the base offense level.

The government disagreed. In support of its argument,

the government cited an unpublished Eleventh Circuit

decision, see United States v. Brigman, 711 Fed. App’x 971

(11th Cir. 2017), which held that the increases under

§ 2A2.2(b)(3)(A) for bodily injury and (b)(4) for
UNITED STATES V. HARRINGTON 5

strangulation do not constitute impermissible double counting

with the base offense level under § 2A.2.2(a).

The district court agreed with the government and held

the three-level enhancement does not constitute

impermissible double counting. The district court sentenced

Harrington to an 87-month term of imprisonment, the high

end of the Guidelines range.

Harrington’s plea agreement provided for a limited right

to appeal a sentence in excess of 78 months. This appeal

followed.

II. Standard of Review

“[W]e review the district court’s interpretation of the

Sentencing Guidelines de novo and its factual findings for

clear error.” United States v. Smith, 719 F.3d 1120, 1123 (9th

Cir. 2013).

III. Discussion

Impermissible double counting occurs when a court

applies a provision of the Guidelines that takes into account

conduct or harm that has already been fully taken into

account by application of another provision of the Guidelines. 

See, e.g., United States v. Joey, 845 F.3d 1291, 1296–97 (9th

Cir. 2017). Impermissible double counting can also occur

when a court applies a provision of the Guidelines that takes

into account conduct or harm that has already been accounted

for as an element of the crime of conviction and the Guideline

identifies a specific offense level for that crime, rather than

specific offense levels based on a range of conduct. See, e.g.,

United States v. Hornbuckle, 784 F.3d 549, 553–54 (9th Cir.
6 UNITED STATES V. HARRINGTON

2015) (comparing U.S.S.G. § 2G1.3(b)(4)(A) to 18 U.S.C.

§ 1591(a), which has been incorporated into U.S.S.G.

§ 2G1.3(a)).

Harrington was convicted of violating 18 U.S.C.

§ 113(a)(8), which provides that someone who assaults “a

spouse, intimate partner, or dating partner by strangling,

suffocating, or attempting to strangle or suffocate, [shall be

punished] by a fine under this title, imprisonment for not

more than 10 years, or both.” 18 U.S.C. § 113(a)(8). The

applicable Guidelines provision for violations of 18 U.S.C.

§ 113(a)(8) is § 2A2.2, which covers “aggravated assault.” 

See U.S.S.G. Appendix A. Section 2A2.2 applies to any

“felonious assault that involved (A) a dangerous weapon with

intent to cause bodily injury (i.e., not merely to frighten) with

that weapon; (B) serious bodily injury; (C) strangling,

suffocating, or attempting to strangle or suffocate; or (D) an

intent to commit another felony.” U.S.S.G. § 2A2.2 cmt. n.1. 

Section 2A2.2 is the relevant provision for numerous

convictions under 18 U.S.C. § 113, including convictions

under § 113(a)(2), (a)(3), and (a)(6), in addition to (a)(8)

under which Harrington was convicted. As a result, the

sentencing provisions of § 2A2.2 cover a range of conduct,

including assault with intent to commit any felony, assault

with a dangerous weapon, and assault resulting in serious

bodily injury, in addition to assault of a spouse by strangling. 

See 18 U.S.C. § 113.

Section 2A2.2 accounts for this range of conduct by

setting a base offense level of 14 in subsection (a), and then

detailing various “Specific Offense Characteristics” in

subsection (b). The specific offense characteristics result in

various upward sentencing adjustments, such as a three- to

five-level increase if a firearm was used, a three- to seven-
UNITED STATES V. HARRINGTON 7

level increase based on the degree of bodily injury, and a

three-level increase if the offense involved strangling a

spouse, among others. U.S.S.G. § 2A2.2(b).

Harrington contends that the district court erred in

applying the three-level adjustment for strangling a spouse in

subsection (b)(4), on the ground that the base offense level in

subsection (a) has already taken that conduct into account. 

We disagree. A plain-text reading of the Guideline indicates

that the base offense level contemplated by § 2A2.2(a) does

not necessarily capture the conduct detailed in the “specific

offense characteristics.” First, the specific offense

characteristics address different behavior, some of which

relate to the four different forms of aggravated assault

encompassed within the section, and some of which do not. 

Second, subsection (b) provides limits on the cumulative

adjustments provided under that subsection—for example,

providing that the cumulative adjustments for a firearms

adjustment, bodily-injury adjustment, and strangling

adjustment cannot exceed twelve levels—suggesting that the

Sentencing Commission intended these adjustments to apply

cumulatively on top of the base offense level. Third, the

Commentary does not forbid application of the specific

offense characteristics on top of the base offense level;

indeed, it indicates the opposite. For example, Application

Note 3 states that “[i]n a case involving a dangerous weapon

with intent to cause bodily injury, the court shall apply both

the base offense level” and the adjustments for “specific

offense characteristics.” U.S.S.G. § 2A2.2 cmt. n.3.

Our decision in United States v. Reese, 2 F.3d 870 (9th

Cir. 1993), supports our conclusion. In Reese, we examined

a prior version of § 2A2.2. We stated that “the use of a single

aspect of conduct both to determine the applicable offense
8 UNITED STATES V. HARRINGTON

guideline and to increase the base offense level mandated

thereby will constitute impermissible double counting only

where, absent such conduct, it is impossible to come within

that guideline.” Id. at 895. “If, on the other hand, it is

possible to be sentenced under a particular offense guideline

without having engaged in a certain sort of behavior, such

behavior may be used to enhance the offense level, for in this

situation, the guideline’s base offense level will not

necessarily have been set to capture the full extent of the

wrongfulness of such behavior.” Id. We went on to hold that

“no impermissible double counting occurs” when a court

applies the use of a dangerous weapon adjustment or the

serious bodily injury adjustment in § 2A2.2 “to increase the

base offense level” in § 2A2.2. Id. at 896.

The same reasoning applies here. The base offense level

specified in § 2A2.2(a) applies to a broad range of behavior. 

It is possible to be sentenced under § 2A2.2(a) without having

strangled one’s spouse. Therefore, the base offense level

does not necessarily “capture the full extent of the

wrongfulness” of Harrington’s behavior, and the three-level

enhancement under § 2A2.2(b)(4) does not constitute

impermissible double counting. Id. at 895.

Harrington relies on Hornbuckle, 784 F.3d at 553, for the

proposition that there is double counting “when a court

applies an enhancement for a necessary element of the

underlying conviction.” In Hornbuckle, we compared

U.S.S.G § 2G1.3(b)(4)(A), an enhancement, to the elements

of the crime of conviction, 18 U.S.C. § 1591(a). We did so

because the Guideline provided a specific base offense level

for the crime of conviction, rather than base offense levels

that applied to a range of conduct, and the circumstance

warranting the enhancement was neither an element of the
UNITED STATES V. HARRINGTON 9

crime of conviction nor accounted for by the offense level

specified for that crime.1 Here, by contrast, though

strangulation is an element of Harrington’s crime, the base

offense level applies to a range of conduct and the

aggravating circumstance, strangulation, is onlyaccounted for

by the enhancement.

Harrington’s case is readily distinguishable from

Hornbuckle. Put simply, the Guideline base offense level in

Harrington’s case was not specific to his crime of

conviction—assault of a spouse by strangulation. 

Conclusion

We hold that application of the three-level adjustment for

strangulation to Harrington’s sentence does not constitute

impermissible double counting.

AFFIRMED.

1 A person convicted of 18 U.S.C. § 1591(a) is sentenced pursuant to

either § 1591(b)(1) or § 1591(b)(2) depending on the victim’s age and

whether coercion was used. Each sentencing provision corresponds to a

unique base offense level under U.S.S.G. § 2G1.3(a).