Aggravated assaults with chairs versus guns: impermissible applied double counting under the sentencing guidelines.

• Date: 01 October 2000
• Author: Barth, Carolyn

INTRODUCTION

In a bar called Andrea's Attic, David and Victor were having a drink when they got into an argument. The argument escalated until Victor said something that infuriated David. David looked at Victor, and, wanting to hurt Victor, grabbed the nearest object, a chair, and then threw it at Victor. The chair hit Victor and he fell to the ground, but was not hurt.(1)

In a bar called Barb's Barn down the street, Valerie was having a drink. Dorothy walked into the bar, grabbed Valerie by the arm and dragged her outside onto the street. As Valerie was dragged, she saw that Dorothy gripped a gun in her hand. On the street, Dorothy pointed the gun at Valerie and yelled, "You are going to die." Then Dorothy waved the gun in the air, threatening to fire it at the bar, at the sky, at Valerie, but never fired. Then, after holding Valerie at gun-point for five minutes, Dorothy hit Valerie on the back of the head, pistol whipping her, so that she fell to the ground. Valerie was not injured.

Currently, in most federal circuits, despite the fact that Dorothy threatened Valerie with a brandished gun that she carried into the bar with her while David picked up the nearest chair and threw it without brandishing or threatening, David and Dorothy will receive the same sentence for their crimes. Courts hold that each committed an aggravated assault while "otherwise using"(2) a dangerous weapon under the United States Federal Sentencing Guidelines ("Guidelines" or "USSG"), but because neither committed another felony during the assault, and neither victim was seriously injured, courts will treat each the same under the Guidelines.(3)

Courts should sentence David and Dorothy differently because David did not "otherwise use" the chair to commit the aggravated assault, and, in fact, it was only his "use" of the chair that qualified him for aggravated assault as opposed to simple assault.(4) On the other hand, Dorothy qualified for the aggravated assault Guideline because she possessed a gun, and then, when she pistol whipped Valerie, she "otherwise used" the gun.(5) This Note addresses the sentencing issues presented by these contrasting examples and argues that courts should sentence defendants like David, who used a chair, more leniently than defendants like Dorothy, who used a gun.

In the 1980s Congress passed the Sentencing Reform Act of 1984 ("Act")(6) to improve the federal system for sentencing federal defendants. Through the Act, Congress created the United States Sentencing Commission ("Commission").(7) The Act directed the Commission to establish specific guidelines for federal sentencing.(8) The Commission thereby drafted the Guidelines to eliminate unwarranted sentencing disparities between similarly situated defendants. The Commission's articulated goals were to produce uniformity and proportionality in sentencing.(9) As of November 1, 1987,(10) the Guidelines bound federal courts to follow them when sentencing persons convicted of federal crimes.(11)

Courts determine a sentence under the Guidelines by applying factors on a matrix. Each factor corresponds to a number called a "level," and courts add or subtract levels according to the facts of the case and the defendant's criminal history. A sentencing court calculates a sentence by finding the intersection on the matrix of the "base offense level"(12) of the conviction and the defendant's "criminal history category."(13) Once the court identifies this intersection it fine tunes the sentence by applying any applicable "specific offense characteristics,"(14) each with a different level.(15) The court can then further fine tune the result by applying upward or downward adjustments.(16) In the end, the court arrives at a level that corresponds to a certain number of months in prison.

For example, consider the aggravated assault Guideline for a defendant with no criminal history.(17) The base offense level for aggravated assault(18) is a level 15.(19) A court may add levels for applicable specific offense characteristics. For example: If a firearm was discharged -- increase by 5 levels; if a dangerous weapon (including a firearm) was otherwise used(20) -- increase by 4 levels; if a dangerous weapon (including a firearm) was brandished or threatened -- increase by 3 levels.(21) If a defendant otherwise used a dangerous weapon to commit aggravated assault, a court would properly find that he is subject to a sentence corresponding to 19 levels.

A defendant might challenge the resulting sentence if a court were to count any aspect of his conduct twice when applying the factors on the matrix. "Double counting" occurs when a court applies the Guidelines in a way that accounts for the same aspects of a defendant's conduct more than once to increase the severity of a sentence.(22) A court might double count, for instance, if it applied a base offense level with a specific offense characteristic under one provision of the Guidelines, and subsequently enhanced that sentence by applying another provision or enhancement based on the same conduct accounted for in the first specific offense characteristic.(23)

For example, consider a defendant who commits a robbery by removing the cashier from behind the counter and tying him up in the bathroom. The court sentences the robber for the base offense level "robbery" and the specific offense characteristic "robbery involving restraint of the victim."(24) If the court also sentences the defendant for abducting the cashier under the enhancement providing: "If any person was abducted to facilitate commission of the offense ... increase by 4 levels,"(25) the defendant might claim that the court impermissibly counted the same conduct (tying up the cashier in the bathroom) twice: once for the restraint and once for the abduction.

The success of a defendant's claim that a court double counted is not uniform throughout the federal circuits. The circuits uniformly consider double counting impermissible where the Guideline provision at issue specifically prohibits it.(26) If the Guideline provision does not specifically prohibit double counting, however, a defendant's successful appeal depends on the circuit where the appeal is heard. Some circuits hold that double counting is only impermissible when the Guideline provision at issue specifically prohibits it.(27) Other circuits hold that double counting is always impermissible, whether or not the Guideline provision specifically prohibits it.(28) Finally, some circuits have not formulated a rule for the permissibility of double counting.(29) Whether David, who committed aggravated assault with a chair (a weapon this Note considers "inherently nondangerous"),(30) receives the same sentence as Dorothy, who committed aggravated assault with a gun (a weapon this Note considers "inherently dangerous"), depends, not on the different type of weapon used,(31) but on the court's view of "double counting" under the Guideline's provision for aggravated assault.

The double counting that occurs under the aggravated assault provision when an inherently nondangerous weapon was used, however, is somewhat unique. The aggravated assault provision, by its language and structure, appears to rule out double counting. When courts apply facts involving inherently nondangerous weapons to the aggravated assault provision, however, they inevitably face the opportunity to double count.(32) Although yet to be named by courts or commentators, this Note refers to this phenomenon as "applied double counting." Stated another way, a court engages in "applied double counting" when it applies facts to a Guideline provision that does not appear on its face to support double counting, yet the resulting sentence inevitably double counts aspects of the defendant's conduct.

The federal circuits are split on the permissibility of applied double counting under the aggravated assault provision when a defendant used an inherently nondangerous weapon to assault a victim.(33) The Second and Sixth Circuits conclude that such applied double counting is impermissible double counting.(34) Most other circuits, however, find application of the second enhancement to be permissible double counting.(35) The few remaining circuits do not consider application of the second enhancement to be double counting at all.(36)

This Note uses the example of applied double counting under the aggravated assault Guideline to urge courts to limit permissible double counting to those circumstances where the Guidelines unequivocally permit it. Part I compares the resulting sentences when the aggravated assault provision is applied to the specific facts of a defendant who committed aggravated assault with an inherently nondangerous weapon and a defendant who committed aggravated assault with an inherently dangerous weapon. Part I then argues that the statute's structure and plain language show the Commission's intent to prohibit the applied double counting, yet demonstrates that courts will inevitably face the opportunity to double count when sentencing a defendant who used an inherently nondangerous weapon. Part II challenges some courts' reliance on a canon of statutory construction, expressio unius est exclusio alterius,(37) in their reasoning that the Commission intended applied double counting under the aggravated assault provision. Part II argues that the invocation of this canon is inappropriate in the context of applied double counting. Part III urges courts to refrain from applied double counting to avoid violating the rule of lenity: courts are to construe ambiguous statues in favor of the accused.(38) Part III further urges courts to resist applied double counting because it violates the Commission's goal of proportionality in sentencing.(39) This Note concludes that courts should adopt a rule whereby all double counting is impermissible unless the Guidelines expressly permit it. This way, courts will avoid applied double counting that the...