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United States v. Pineda-Duarte

United States Court of Appeals, Sixth Circuit

July 31, 2019

United States of America, Plaintiff-Appellee,
v.
Reynaldo Pineda-Duarte, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cr-00105-1-Joseph M. Hood, District Judge.

         ON BRIEF:

          Cathryn R. Armistead, ARMISTEAD LAW GROUP, PLLC, Nashville, Tennessee, for Appellant.

          Charles P. Wisdom, Jr., Lauren Tanner Bradley, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

          Before: MOORE, COOK, and READLER, Circuit Judges

          OPINION

          CHAD A. READLER, CIRCUIT JUDGE.

         Suppose an individual approached by a police officer for a suspected drug offense swings a shovel at the officer-but misses. Has the individual "used violence," thereby triggering the sentencing enhancement in U.S.S.G. § 2D1.1(b)(2) of the Federal Sentencing Guidelines?

         While the district court did apply the § 2D1.1(b)(2) enhancement, the court did not expressly find that the defendant "used violence." Rather, given the somewhat unique nature of the conduct at issue-swinging a shovel but missing the intended target-the district court characterized the defendant as either having threatened to use violence, or, alternatively, having attempted to use violence. But neither characterization fits the Guideline provision. Section 2D1.1(b)(2) applies where a defendant (1) "used violence," (2) "made a credible threat to use violence," or (3) "directed the use of violence." The conduct here plainly is not directing the use of violence. And the conduct was more than a threat-the defendant did not threaten to swing a shovel, he in fact appears to have done so. The remaining clause of § 2D1.1(b)(2), by its terms, applies only where the defendant "used violence." It does not independently allow for an enhancement where an act is characterized only as an attempt to use violence.

         Given the unusual facts of this case, the district court's characterization of the events at issue was understandable. Nonetheless, we VACATE the defendant's sentence and REMAND the case to the district court for resentencing after application of the correct legal standard regarding the use of violence.

         I. BACKGROUND

         Reynaldo Pineda-Duarte is a citizen of Mexico. Previously, he had twice been detained and removed by federal officers, once in California, and once in Texas, for entering the United States without authorization. He returned again, this time making his way to Clark County, Kentucky, a small farming community not far from Lexington.

         One Clark County farm in particular had captured the attention of the Kentucky State Police. The farm was suspected of containing over 2, 000 marijuana plants, and the State Police accordingly had the area under surveillance. In the course of servicing equipment used to monitor the area, the officers saw Pineda cultivating what appeared to be marijuana plants. The officers headed in Pineda's direction, strategically surrounded him, announced their presence, and ordered Pineda to "get on the ground." But Pineda did not get on the ground, nor did he surrender. Instead, he apparently swung a shovel he was holding. He then dropped the shovel and attempted to flee. After a struggle, the officers detained Pineda and took him into custody.

         Pineda was charged with manufacturing more than 1, 000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). He was also charged with reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a). Pursuant to an agreement with the government, Pineda pleaded guilty to the manufacturing charge in exchange for having his illegal reentry charge dismissed.

         The probation office prepared a pre-sentence report. In the PSR, the probation office recommended that Pineda receive a two-step offense-level enhancement pursuant to § 2D1.1(b)(2) of the Sentencing Guidelines. That provision requires that a sentence be enhanced where a "defendant used violence, made a credible threat to use violence, or directed the use of violence" in conjunction with a drug offense. U.S.S.G. § 2D1.1(b)(2). The probation office concluded that Pineda's swinging a shovel at an officer was a "use[ ...


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