U.S. v. Dayea, 93-10278

• Decision Date: 05 August 1994
• Docket Number: No. 93-10278,93-10278
• Citation: 32 F.3d 1377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin DAYEA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1377

32 F.3d 1377

UNITED STATES of America, Plaintiff-Appellee, v. Calvin DAYEA, Defendant-Appellant.

No. 93-10278.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1994.

Decided Aug. 5, 1994.

Sally S. Duncan, Phoenix, AZ, for defendant-appellant.

Joseph J. Lodge, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: SCHROEDER, D.W. NELSON, and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Calvin Dayea pleaded guilty to charges of involuntary manslaughter and assault resulting in serious bodily injury, both charges stemming from an automobile accident he caused while intoxicated. He now appeals his sentence. We vacate his sentence and remand for resentencing.

BACKGROUND

In this case, as in too many others, the common criminal activity of drunken driving ended in tragedy. Early on July 3, 1992, Calvin Dayea began a day of drinking. At 9:00 p.m. that evening, he was driving his pickup truck west on Arizona State Route 260, on the White Mountain Apache Reservation. His truck crossed the center line of the highway and struck an oncoming Ford Taurus, occupied by four adults and two children. One of the occupants, Theresa Campsen, was seriously injured, suffering a broken clavicle, bruised sternum, minor contusions, and an injury to a vertebral disc in her neck. Dayea's truck then collided with an oncoming Chevrolet Blazer, occupied by Arizona Department of Public Safety (DPS) Sergeant David Zesiger. Zesiger died approximately ten minutes after the collision.

Dayea, who claims to have no memory of the accident or of events for some time prior to it, was taken to the hospital, where tests

                showed that he had a blood alcohol level of 0.15% approximately two hours after the collisions.  Dayea pleaded guilty to one count of involuntary manslaughter in violation of 18 U.S.C. Secs. 1112 and 1153, and one count of aggravated assault resulting in serious bodily injury in violation of 18 U.S.C. Sec. 113(f).  He was sentenced to 51 months in prison, followed by 60 months of supervised release for the aggravated assault.  The district court imposed a 36 month sentence, to run concurrently, for the involuntary manslaughter. 1  The court also ordered Dayea to pay $18,000 in restitution to Zesiger's widow
                

DISCUSSION

We review de novo the district court's interpretation of the sentencing guidelines. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). We will not disturb the court's factual findings, however, unless they are clearly erroneous. Id.

I

The district court increased Dayea's base offense level by four, pursuant to U.S.S.G. Sec. 2A2.2(b)(2)(B), on the ground that Dayea used a dangerous weapon in the commission of the offense. We conclude that this adjustment was unauthorized, because Dayea did not "use" a dangerous weapon within the meaning of the Guidelines.

Section 2A2.2(b)(2) lists certain specific offense characteristics for aggravated assaults which, if present, require the district court to adjust a defendant's base offense level:

(A) If a firearm was discharged, increase by 5 levels; (B) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; (C) if a dangerous weapon (including a firearm) was brandished or its use was threatened, increase by 3 levels.

A "dangerous weapon" is "an instrument capable of inflicting death or serious bodily injury." Section 1B1.1, comment. (n.1(d)). In light of this expansive definition, there is no question that a motor vehicle may qualify as a dangerous weapon. See, e.g., United States v. Sanchez, 914 F.2d 1355, 1363 (9th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991). In fact, courts have found that, in the proper circumstances, almost anything can count as a dangerous weapon, including walking sticks, leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and stink bombs. ²

The Guideline's expansive definition of "dangerous weapon" makes application of section 2A2.2(b)(2)(B) something less than mechanical. If, during the course of an assault, an assailant scratches his head with a gun, he plainly is using a dangerous weapon. Equally plainly, however, this particular use ought not to qualify for an upward adjustment in the assailant's sentence, because it does nothing to increase his culpability. Cf. Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2056, 124 L.Ed.2d 138 (1993) (dictum that 5 year mandatory sentence for use of a firearm in connection with a drug trafficking offense inapplicable if defendant used gun to scratch his head). Thus, it cannot be that section 2A2.2(b)(2)(B) applies any time an object capable of causing serious injury (i.e., a "dangerous weapon") is "used" during an assault. Particularly is this so when the "weapon" is not as unambiguous as a handgun, but is one of the many instruments that are normally put to benign uses but are nevertheless capable of causing serious injury--instruments such as walking sticks or Dayea's pickup truck.

The key to narrowing the scope of the section's applicability to a class of uses that are rationally related to a defendant's culpability is to recognize that "use" of an object implies that the actor has an intent to achieve a particular purpose when he employs the object. Thus, for example, Blacks Law Dictionary 1541 (6th ed. 1990), defines "use" as "to carry out a purpose or action by means of."

As we pointed out above, it cannot be that use of an instrument capable of inflicting serious bodily injury for any purpose whatsoever qualifies for an upward adjustment under subsection (B). The Guidelines contemplate a narrower class of purposes. We might conclude that "a dangerous weapon was otherwise used" means "otherwise used with the intent to facilitate the assault." Cf. Smith, --- U.S. at ----, 113 S.Ct. at 2059 (to qualify for mandatory sentence under 18 U.S.C. Sec. 924(c)(1), firearm "at least must facilitate or have the potential of facilitating the drug trafficking offense." (quotations and citations omitted)). This construction, however, still casts the net too broadly. It is not reasonable to suppose that the Guidelines intended an upward adjustment for use of a weapon (an automobile) when the offender drives his car to the place where he assaults the victim with his hands after he leaves his car. There is nothing about that use of a vehicle (helpful as it may have been toward the accomplishment of the assault) that necessarily makes the assault more deserving of punishment. ³ What makes use of a dangerous weapon (such as a vehicle) culpable conduct, warranting increased punishment, is use of such an object in its capacity as a weapon--that is, using it for the purpose of injuring or threatening to injure. Accordingly, we conclude that an upward adjustment under section 2A2.2(b)(2)(B) is authorized only when a defendant used an instrument capable of causing serious bodily injury with the intent to injure his victim. Dayea had no such intent; despite the horrible consequences of his driving, he was not using his truck as a weapon.

We followed this line of reasoning in United States v. Torres-Lopez, 13 F.3d 1308 (9th Cir.1994). In that case, the district court had imposed an upward departure under U.S.S.G. Sec. 5K2.6 for use of a "weapon or dangerous instrumentality" in the commission of an offense (alien smuggling). The departure was based on reckless use of an automobile, in that the defendant driver jumped out of the vehicle while it was still That Dayea was intoxicated does not alter our conclusion, because it does not alter Dayea's purpose in using his truck. Unquestionably, driving while intoxicated is a reckless and terrible thing to do. For that reason, a drunk driver may be subject to criminal charges for injuries he inflicts, or for the very act of driving while intoxicated. But the adjustment required by section 2A2.2(b)(2)(B) is for using a weapon; that is, for using an object capable of causing serious injury with the intent to injure with it. No matter how negligently or recklessly Dayea drove his truck, he simply was not using a dangerous weapon within the meaning of section 2A2.2(b)(2)(B) because he had no intent to injure with his truck. ⁴

rolling. We rejected the departure, stating that "a car is not a dangerous instrumentality under Sec. 5K2.6 unless it is used with the intent to cause harm." Id. at 1312.

This conclusion comports with the structure of section 2A2.2(b)(2). Subsection (C) requires a three-level increase if a dangerous weapon was "brandished or its use was threatened." Brandishing and threatening are both intentional uses of an object in its capacity as a weapon. Although one does not normally "brandish" a motor vehicle, it can be done, or the vehicle's use as a weapon threatened, by intentionally making a move as if to run someone over.

Subsection (B) provides for a four-level increase, suggesting a higher degree of culpability. It applies if "a dangerous weapon (including a firearm) was otherwise used." U.S.S.G. Sec. 2A2.2(b)(2)(B). "Otherwise used" means "more than brandishing, displaying, or possessing ... a dangerous weapon." U.S.S.G. Sec. 1B1.1, comment. (n.1(g)). It would not be rational, in light of the guideline's escalating levels of culpability, to do away with the requirement of intent for this subsection, which carries a four-level increase, while retaining it for subsection (C), which carries only a three-level increase. The only use of a truck that exceeds its intentional use as a weapon to threaten a victim is its intentional use as a weapon to injure or attempt to injure a victim. Dayea made no such intentional use of his truck.

We conclude that when a motor vehicle is involved in an aggravated assault, a district court may not add four levels...