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.

W A L T E R R I C H A R

D H A R R I N G T O N , Defendant-Appellant. No. 18-30141

D.C. No. 1:17-cr-02030-SAB -1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of W a shing ton Stanley Allen B a stian, District J udg e, Presiding

Arg ued and Submitted April 12, 2019 Seattle, W a shing ton

F iled December 24, 2019

B efore: W illiam A. F letcher, Consuelo M. Callahan, and Morg an Christen, Circuit J udg es.
Opinion by

J udg e W

. F letcherU N I T E D S T A T E S V

. H A R R I N G T O N 2

SUMMARY *

Crim inal Law

Affirming a sentence for assault by strang ling a spouse in I ndian cou n t ry , the panel held that the district court’s application of a three-level enhancement set forth in U.S.S.G. § 2 A 2.2(b)(4) – for the specific offense characteristic o f
stra n gl i n g a spouse – does not constitute impermissible double counting
, because it is p ossible to be sentenced under U.S.S.G. § 2A2.2(a), which se t s the base offense level for a broad rang e of conduct, without having strang led one’s
spouse.

COUNSEL

J eremy B

. Sporn (arg

ued), F ederal Defenders of Washing ton, Yakima, W ashing ton, for Defendant-Appellant.

Thomas J

. Hanlon (arg

ued), A ssistant U nited Sta t e s A ttorney ; J oseph H

. Harring ton, U nited States Attorney ; United States Attorney ’ s Office, Yakima, W ashing ton; for PlaintiffAppellee.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co urt 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

. H A R R I N G T O N 3

OP INION

W

. F L ETCHER, Circuit J udg e:

W a lter Harring ton app e a ls the sentence imposed following h is g uilty plea to a ssault b y strang ling a spouse in I n dian country in violation of 18 U .S.C. § 113(a)(8)

. Harring ton contends that th e district c ourt impermissibly double counted when it applied a three-level enhancement for strang li n g a spouse under § 2 A2.2(b)(4) of the U.S. Se n t encing Guidelines (“Guidelines”). He contends that because his convic t ion was f or strang ling a spouse, that

c o n duct was already accounted for in the base offense level of § 2A2.2(a). W e affirm the district court.

I . F actual and Procedural B ackg round

On March 25, 2 017, W alter Harring ton, a member of the Round V alley I ndian T ribes, assaulted h i s wife within the Y akama I ndian Reservation. He beat and strang led her, resulting in ex tensive bruising
, neck pain, hemorrhag ing
, a nd two fractured ribs.

Harring ton pleaded g uilty to domestic assault and battery

a n d to malicious mischief in Yakama Nation Tribal Court. The federal g overnment charg ed Harring ton in federal district
court w i t h o n e count of a ssault of a spouse by strang ulation under 18 U.S.C. § 113(a)(8) and o ne count of as s a u lt with intent to commit murder under 18 U.S.C. § 113(a)(1).

Harring ton pleaded g uilty to the assault by strangulation
count in ex chang e for the g overnment’s dismissal of the assault with intent to co m m i t murder count. The parties
ag reed to a ba s e o f

fe nse level of 14 under U.S.S.G.U N I T E D S T A T E S V

. H A R R I N G T O N 4

§ 2A2.2(a) and a seve n

- l e v el enhancement under § 2A2.2(b)(3)(C) beca u s e the victim suffered permanent o r life-threatening bodily injury

. H a r ring ton and the federal
g overnment disag reed over whether the base offense level should be increased by thre e levels under § 2A2.2(b)(4) because the offense involved strang ling a spouse. T h e federal
g overnment ag reed to recommend a sentence of no more than a 78-month term of imprisonment, and Harring ton ag reed to recommend a sentence o f no less than a 41-month t e r m o f imprisonment.

The Presentence I n v e stig ation Report (“PSR”)

recom m e n d ed a total adjusted offense level of 21 and a criminal history categ or y of V, resulting in an advisory
g uideline rang e of 7 0 t o 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 § 2 A 2 .2(b)(3)(C), and another three-level enhancement u nder § 2A2.2(b)(4). The PSR als o r e c ommended a three-level reduction for acceptance of responsibility and cooperation.

Harring ton objected to the three-level enhancement under § 2A2.2(b)(4) for strang li n g a spouse, arg uing it constituted impermissible double c ounting

. Harring ton argu e d the enhancement targ ets conduct that is a lready an element of the offen s e o f conviction, and, therefore, the conduct is already accounted for in the base offense level.

The g over n m e n t disag r eed. I n support of its arg ument, the g overnment c ited an unpu b lished Eleventh Circuit decision, see United States v. Brigman
, 711 F ed. App’x 971 (11th Cir. 2 0 17), which held that the increases under § 2 A2.2(b)(3)(A) for bodily injury and (b)(4) f o rU N I T E D S T A T E S V

. H A R R I N G T O N 5

s t r a n g u l a t i o n d o not constitute impermissible double c ount i n g with the base offense level under § 2A.2.2(a).

The district court a g reed with the g overnment and h eld
t h e t h r e e

- l e v e l e n h a n c e m e n t d o e s n o t c o n s t i t u t e impermissible double counting

. The district court sentenced Harring ton to an 87-month term of imprisonment, the hig h end of the Guidelines rang e

. Harring ton’s plea ag reement provided for a limited rig ht
to appeal a sentence in e x cess o f 7 8 m o nths. This appeal followed.

I I . Standard of Review

“[ W ] e review the district court’s interpretation of the Sentencing Guidelines de novo and its fac t u a l finding s for clear error.” United States v. Smith
, 719 F .3d 1120, 1123 (9th Cir. 2013).

I I I

. Discussion

I mpermissible double c o u n t ing occurs when a court applies a p rovision of the Guidelines that takes into account conduct or harm that has already been fully taken into
account b y application of another provision of the Guidelines. See, e.g. , United States v. Joey
, 845 F .3d 1291, 1 2 96–97 (9th Cir. 2017). I mpermissible double counting can al s o occur when a court applies a provision of the Guidelines that takes into account conduct or harm that has a lready been accounted for as an element of the crime of c onviction and the Guideline identifies a specific offense level f or that crime, rathe r t h an specific offense levels b ased o n a rang e o f conduct. See, e.g. , United States v

. Hornbuckle
, 784 F .3d 549, 5 53–54 ( 9th Cir.U N I T E D S T A T E S V

. H A R R I N G T O N 6

2015) ( c o m p a ring 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)).

Harring ton was c o n victed of violating 18 U .S.C. § 1 1 3 (a)(8), which provides that someone who assaults “a
spouse, intimate partner, or d ating partner by stra n gl i ng , suffocating
, or attempting to strang le or suffocate, [shall be punished] by a f

ine under this title, imprisonmen t f o r not

more than 1 0 y ears, or b oth.” 18 U.S.C. § 113(a )(8). The applica b l e Guidelines p rovision for violations of 18 U .S.C. § 113(a)(8) is § 2A2.2, which covers “ag g ravat e d a ssault.” See U

. S

. S .G. Appendix A. Section 2A2.2 applies to any “felonious assault that involved (A) a dang erous weapon with intent to cause bodily injury (i.e., not merely to frig hten) with that weapon; (B ) serious bo d i l y injury ; (C) strang ling
, suffocating
, or attempting to strang le 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, includi n g c o nvictions under § 113(a)(2), (a)(3), and (a)(6)
, i n addition to (a)(8)

un d e r which H arring ton w as convicted. As a result, the sentencing provisions o f § 2A2.2 co v e r a rang e of conduct, including assault w ith inte n t t o commit any felony
, assault with a d ang erous weapon, and assault resulti n g in serious bodily injury
, in addition to assault of a spouse by strang ling

. See 18 U.S.C. § 113.

Section 2A2.2 accounts for this rang e of conduct by setting a base offense lev e l o f 14 in subsection (a), and then detailing v a

rious “Specific Offense Characteris tics” in subsection ( b). The specific offense c haracteristics res ult in various u pward sentencing adjustments, such as a three- to five-level i n cr e ase if a firearm was used, a three- to seven-U N I T E D S T A T E S V

. H A R R I N G T O N 7

l evel increase based on the deg ree of b odily injury
, and a three-level increase i f the offense involved strang ling a spouse, among others. U.S.S.G. § 2A2.2(b).

Harring ton co ntends that the district c ourt erred in apply ing the three-level adjustment for strang ling a spouse in subsection ( b)(4), on the g round that the base offense level in subsection (a) has already taken that conduct into account. W e disag ree. A plain-tex t reading of the Guideline indicates that the b a s e offense level contemplated by § 2A2.2(a) does
not necessarily capture the conduct detailed in t h e “ s p ecific offense characteristics.” F irst, the specific o ffen se characteristics address different behavior, some o f which relate to the four d iffe r e n t f orms of ag g ravated assault encompassed within the section, an d s o me of which do not. Second, subsection (b) provide s limits on the c umulative adjustments provided under that s u bsection—for ex ample, providing that the cumulative adjust m e n ts for a f irearms adjustment, b o d i l y -injury a djustment, and strang ling adjustment cannot ex c e ed twelve levels—sug g esting that the Sentencing Commission intended these a djustments to a pply cumulatively on top of the base offense level. Third, the Commentary does not f o r bid application of the specific offense characteristics on top of the base o f f ense level; indeed, it indica t e s t he opposite. F or ex ample, Application Note 3 states that “ [i] n a case involving a dang erous weapon with intent to cause b odily injury
, the court shall a p p l y b o th the base offense level” and the adjustments for “ s p ecific offense characteristics.” U.S.S.G. § 2A2.2 cmt. n.3.

Our decision in United States v. Reese
, 2 F .3d 8 7 0 (9th Cir. 1993), supports our conclusion. I n R eese , we ex a mined

a prior version of § 2 A2.2. W e stated that “the use of a sing le aspect of conduct both to determine the applicable offenseU N I T E D S T A T E S V

. H A R R I N G T O N 8

g uideline and to inc r e ase the base offense level mandated
t h ereby will constitute impermissible double counting on l y where, absent such conduct, it i s impossible to come within th a t gu i d eline.” Id. at 895. “I f, o n the other hand, it is possible to b e sentenced under a particular offense g u ideline without having eng ag ed in a certain sort of b ehavior
, s u ch behavior may be used to e nhance the o f fense level, for in this situation, the g uideline ’ s b a se offense level will not necessarily h ave been set to c apture the full ex tent of the
wrong fulness of such behavior.” Id. W e went on to hold that “no impermissible double c ounting occurs” whe n a court applies t he use of a dang erous weapon adjustment or the serious bodily in

jury adjustment in § 2A2.2 “to increase the base offense level” in § 2A2.2. I d. at 896.

The same reasoning applies here. The base offense level specified in § 2A2.2(a) applies to a broad rang e of behavior. I t is possible to be sentenced u nder § 2A2.2(a) without h aving strang led one’s spouse. T herefore, the b a s e offense level does not necessarily “capture the full ex tent of the
wrong fulness” of Harring ton’s behavi o r, and the three-level enhancement u n der § 2A2.2(b)(4) does not constitute impermissible double counting

. Id. at 895.

Harring ton relies on Hornbuckle
, 7 84 F .3d at 553, for the proposition that there i s d ouble counting “ when a court applies an enhancement f or a necessary element of the underlying conviction.” I n Hornbuckle
, w e compared U.S.S.G § 2G1.3(b)(4)(A), an enhancement, to the elements of the cr i m e o f conviction, 18 U.S.C. § 1591(a). W e did so because the Guideline provided a specific base offense level for the c rime o f conviction, rather than b ase offense levels that applied to a rang e o f conduct, and the circumstance warranting the enhancement w a s neither an element of theU N I T E D S T A T E S V

. H A R R I N G T O N 9

c r ime o f conviction nor accounted for by the offense leve l specified fo r t h a t c r ime. 1 Here, by contrast, thoug h strang ulation is a

n element o f H arring ton’s crime, the base offense level applies to a rang e of conduct and the
ag g r a v a t i n g c i r c u m s t ance, strangulation, is only accounted for by the enhancement.

Harring ton’s case is readily d isting uishable from Hornbuckle

. Put simply
, the Guideline base offense level in Ha r r i n gton’s case w as not specific to his c rime o f conviction—assault of a spouse by strang ulation.

Conclusion

W e hold that application of the three-level adjustment for strang ulation to Harring ton’s sentence doe s not constitute impermissible double counting

.

AF F IRMED.

1 A p erso n co n v icted o f 1 8 U.S.C. § 15 9 1(a) is sen ten ced p u rsu an t to

e i th er § 1 5 9 1 (b )(1 ) o r § 1 5 9 1 (b )(2 ) d ep en din g o n th e v ictim ’ s a g e a n d

w h eth er co ercio n

w as u sed . Each sen ten cin g p ro v isio n co rresp o n d s to a

u n iq u e b ase o f

f en se lev el u n d er U.S.S.G. § 2 G1 .3 (a).