In United States v. Swallow, --- F.3d ---, No. 16-30224 (9th Cir. 2018), the Court vacated the defendant's sentence for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153.
In a $10 drug dispute, the defendant knocked the "victim" to the ground and repeatedly kicked him while wearing tennis shoes.
On appeal, the defendant challenged two enhancements: (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."
The Court found the dangerous-weapon enhancement was proper: "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."
However, the district court erred in imposing a "thing-of-value" enhancement: "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."
