U.S. v. Williams, 91-5399

• Decision Date: 14 January 1992
• Docket Number: No. 91-5399,91-5399
• Citation: 954 F.2d 204
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Christopher WILLIAMS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 204

954 F.2d 204

UNITED STATES of America, Plaintiff-Appellant, v. Christopher WILLIAMS, Defendant-Appellee.

No. 91-5399.

United States Court of Appeals Fourth Circuit.

Argued Oct. 30, 1991.

Decided Jan. 14, 1992.

Cynthia Ann Young, Sp. Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty. and William G. Otis, Sr. Litigation Counsel, on brief), Alexandria, Va., for plaintiff-appellant.

David William O'Brien, Bonner & O'Connell, Washington, D.C., argued, for defendant-appellee.

Before MURNAGHAN and WILKINSON, Circuit Judges, and YOUNG, Senior District Judge for the District of Maryland, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

In this case a defendant pleaded guilty to aggravated assault and the district court refused to impose the four-level upward adjustment prescribed by the United States Sentencing Guidelines for the defendant's use of a dangerous weapon. U.S.S.G. § 2A2.2(b)(2)(B). The district court believed the adjustment constituted impermissible "double counting" since the Guidelines define the base offense of aggravated assault to include assault with a dangerous weapon. We believe, however, that the district court's view is not consistent with the language or the structure of the Guidelines and effectively nullifies the upward adjustments in the aggravated assault provision. Accordingly, we vacate the sentence imposed by the district court and remand with directions to apply the four-level adjustment.

I.

On August 12, 1990, Christopher Williams assaulted a fellow inmate at the Lorton Reformatory. On November 16, 1990, Williams pleaded guilty to assault with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C. § 113(c) and 18 U.S.C. § 2. The plea agreement stipulated that Williams struck a fellow inmate over the head with a metal chair.

The presentence report submitted to the district court calculated Williams' offense level pursuant to § 2A2.2 of the Sentencing Guidelines, which covers various aggravated assault offenses. The report calculated Williams' total offense level at 19. First, the report noted that § 2A2.2 sets the base offense level for aggravated assault at 15. Second, it made a four-level upward adjustment for use of a dangerous weapon (the chair), pursuant to U.S.S.G. § 2A2.2(b)(2)(B), and a two-level upward adjustment for inflicting bodily injury on the victim, pursuant to U.S.S.G. § 2A2.2(b)(3)(A). Finally, the report recommended a two-level downward adjustment for Williams' acceptance of responsibility.

Williams objected to the four-level upward adjustment for use of a dangerous weapon. In his view, that adjustment amounted to impermissible double counting because the use of a dangerous weapon had already been taken into account by the Sentencing Commission in setting the base offense level for aggravated assault. Because the Guidelines define aggravated assault to include assault "that involved ... a dangerous weapon with intent to do bodily harm," U.S.S.G. § 2A2.2, comment (n.1), Williams argued that the upward adjustment for use of a dangerous weapon was redundant and constituted double punishment for the use of the metal chair.

The district court agreed, and held that it would be unfair to impose the upward adjustment for use of a dangerous weapon. The court did impose the two-level upward adjustment for bodily injury to the victim, and also granted the two-level downward adjustment for acceptance of responsibility, thus arriving at a total offense level of 15. After assessing Williams' criminal history category at III, the district court sentenced Williams to 30 months' imprisonment, the maximum penalty within the applicable range.

The government appeals, arguing that the Guidelines plainly require a four-level upward adjustment for use of a dangerous weapon.

II.

The district court refused to impose the Guidelines' upward adjustment for use of a dangerous weapon because of what it perceived as impermissible "double counting." We reject the court's conclusion that the adjustment is improper, and hold that the Guideline must be applied as written.

A.

Section 2A2.2 of the Sentencing Guidelines provides the framework for calculating the offense level for various aggravated assault offenses. This provision sets a base level of 15 for any offense qualifying as an "aggravated assault," which is defined to include any "felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to commit another felony." U.S.S.G. § 2A2.2, comment (n.1). In addition to setting the base level, § 2A2.2 establishes a graduated adjustment schedule that is triggered by a number of aggravating factors. U.S.S.G. § 2A2.2. For example, the Guideline instructs the sentencing court to increase the base level by 5 "[i]f a firearm was discharged," by 4 "if a dangerous weapon (including a firearm) was otherwise used," and by 3 "if a dangerous weapon (including a firearm) was brandished or its use was threatened." U.S.S.G. § 2A2.2(b)(2). Williams concedes that the metal chair he used qualifies as a dangerous weapon. The only issue in this case, therefore, is whether there is some reason to deviate from the Guideline language requiring a four-level upward adjustment for the use of that chair.

It is true that, in one sense, the metal chair counted twice in the calculation of Williams' offense level. The Guideline first sets the base level for aggravated assault, which includes assault with a dangerous weapon, at 15. U.S.S.G. § 2A2.2(a), comment (n.1). The Guideline then instructs the sentencing court to increase the base level by 4 if that same dangerous weapon is used. U.S.S.G. § 2A2.2(b)(2). Williams contends this scheme makes no sense. He asserts that the upward adjustment will always apply, and argues that the Sentencing Commission would have started with a base level of 19 if it had intended this result. He invites us to correct the Commission's oversight by declining to apply the adjustment for use of a dangerous weapon in his case.

We think, however, that the dangerous weapon adjustment rationally reflects the Guideline's graduated adjustment scheme, and we refuse to sanction its repeal. We also reject Williams' assertion that the crime of assault with a dangerous weapon with intent to do bodily injury will always result in a four-level upward adjustment to the base level of 15. The base level set by § 2A2.2 applies to this assault offense because it "involved" a dangerous weapon, but the four-level adjustment would apply only if the defendant "used" the dangerous weapon. Thus, a defendant could be guilty of assault with a dangerous weapon without ever using the weapon--the defendant may threaten and intend to use the weapon but never have the opportunity to do so. In that case, the defendant would receive a three-level adjustment for threatening to use a dangerous weapon, rather than the four-level adjustment that would apply if he actually used it or the five-level adjustment that would apply if he discharged a firearm. See U.S.S.G. § 2A2.2(b)(2).

The district court's interpretation of § 2A2.2 would effectively eviscerate this incremental adjustment schedule, thus undermining the Guidelines' fundamental goal of proportionality in sentencing. Under the district court's reasoning, each of the upward adjustments would be condemned as double counting--the involvement of a dangerous weapon is an element of the base offense, and the weapon's involvement figures in each of the adjustments. Whether a firearm was discharged, a dangerous weapon was otherwise used, or the weapon was simply brandished or its use threatened, the district court's approach would forbid any upward adjustment from the base level of fifteen.

The district court's approach would do similar violence to other aspects of the Guideline's adjustment scheme for aggravated assaults. The Guideline establishes a second adjustment schedule based on the degree of bodily injury to the victim, adding two levels if the victim suffers "bodily injury," four levels if the victim suffers "serious bodily injury," and six levels if the victim suffers "permanent or lifethreatening bodily injury." U.S.S.G. § 2A2.2(b)(3). But these adjustments also duplicate an element of the base offense, which is defined to include an assault "that involved ... serious bodily injury." Thus, the logic of the district court's approach would forbid application of these adjustments as well. We cannot, however, deprive the Sentencing Commission of its authority to assign incrementally higher sentences based on important factors such as the degree of the weapon's involvement and the degree of the victim's injury.

B.

Refusing to apply the adjustment to Williams' assault would impair the structure of the Guidelines in yet another way. An adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability. U.S.S.G. § 1B1.1(b). This court has previously held that the Guidelines are explicit when double counting is forbidden. See United States v. Curtis, 934 F.2d 553, 556 (4th Cir.1991).

Numerous provisions of the Guidelines include explicit exceptions to the applicability of sentencing enhancements that duplicate factors already affecting the offense level. Section 2X3.1, for example, sets the base level for an offender who participates only as an accessory after the fact, and the application notes to that provision provide that "[t]he adjustment from § 3B1.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is...