United States v. Paul Swallow, 891 F.3d 1203

Defendant Paul Swallow pleaded guilty to assault resulting in serious bodily injury under 18 U.S.C. §§ 113(a)(6), 1153.
Swallow and his wife had given the victim $10 to buy meth; the victim refused to provide drugs or return the money.
At a casino parking lot, Swallow, egged on by his wife, struck the victim, then kicked and stomped the victim’s head while the victim lay unconscious on pavement.
The victim was hospitalized and suffered permanent cognitive impairment.
At sentencing the district court applied two Guidelines enhancements under U.S.S.G. § 2A2.2: (1) +4 for use of a dangerous weapon (§ 2A2.2(b)(2)(B)); and (2) +2 for motivation by payment or offer of money or thing of value (§ 2A2.2(b)(5)).
On appeal the Ninth Circuit reviewed the dangerous-weapon finding for abuse of discretion and reviewed application of the payment-motivation enhancement for legal error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Swallow’s tennis shoes qualified as a "dangerous weapon" under § 2A2.2(b)(2)(B)	Swallow argued shoes are not inherently dangerous and therefore cannot be a weapon here	Government argued non-inherently dangerous objects can qualify based on manner of use; shoes augmented force and caused serious injury	Court held shoes were a dangerous weapon because they were used to augment force (kicks/stomp) capable of causing serious bodily injury; +4 enhancement proper
Whether § 2A2.2(b)(5) (+2) applies because assault was motivated by a payment or offer of money or other thing of value	Swallow argued the assault was not for hire nor motivated by payment; it was provoked by his wife’s taunts	Government argued the prior money/transaction (money given for meth) supported the enhancement	Court held no evidence the assault was for hire or motivated by payment/offer; +2 enhancement improper; sentence vacated and remanded for resentencing

Dayea v. United States, 32 F.3d 1377 (9th Cir. 1994) (identifies non-inherently dangerous objects, including shoes, may qualify depending on use)
Gasca-Ruiz v. United States, 852 F.3d 1167 (9th Cir. 2017) (standard of review for guideline-application determinations)
Smith v. United States, 561 F.3d 934 (9th Cir. 2009) (distinguishes inherently dangerous instruments from those dangerous by use)
Riggins v. United States, 40 F.3d 1055 (9th Cir. 1994) (shoe used as dangerous weapon when used to beat victim)
Rocha v. United States, 598 F.3d 1144 (9th Cir. 2010) (kicks with bare hands/feet distinguished from kicks with shoes; manner of use key)
United States v. Velasco, 855 F.3d 691 (5th Cir. 2017) (shoes used to stomp victim’s head can be a dangerous weapon)
United States v. Steele, 550 F.3d 693 (8th Cir. 2008) (kicking victim in torso with tennis shoes qualifies)
United States v. Serrata, 425 F.3d 886 (10th Cir. 2005) (stomping on victim’s head with boots qualifies)
Munoz-Camarena v. United States, 631 F.3d 1028 (9th Cir. 2011) (sentencing error remand principles)