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.
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
A. READLER, CIRCUIT JUDGE.
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?
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.
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.
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.
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.
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.
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[ ...