United States v. Quiver
2015 U.S. App. LEXIS 19936
| 10th Cir. | 2015Background
- On Jan. 15, 2013, BIA Officer Justin Friday responded to a disturbance on the Wind River Reservation involving Delray Quiver.
- Officer Friday attempted to arrest Quiver; after resistance, Friday tripped and forced Quiver face-down in the snow; a struggle ensued.
- Friday had removed the probe cartridge from his X26 Taser, leaving only drive‑stun mode available; Quiver seized the Taser and applied it to Friday’s thigh, leaving burn/puncture marks.
- Quiver pleaded guilty to assaulting, resisting, and injuring a federal officer under 18 U.S.C. § 111(a)(1) and (b).
- The PSR recommended, and the district court applied, a four‑level U.S.S.G. § 2A2.2(b)(2)(B) enhancement for use of a dangerous weapon (the Taser); the court ultimately sentenced Quiver to 70 months after a downward variance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Taser used in drive‑stun mode is a “dangerous weapon” under U.S.S.G. § 2A2.2(b)(2)(B) | Quiver acknowledged a Taser is a weapon but disputed scope of "use" requirement | Taser in drive‑stun mode must be shown to be capable of causing death or serious bodily injury as used (i.e., capability must factor into "use") | Court: Taser—even in drive‑stun mode—is a dangerous weapon because it can cause serious bodily injury; enhancement applies |
| Whether Quiver “used” the Taser (as opposed to merely brandishing/possessing) | Quiver contended the guideline requires the weapon, as used, be capable of causing death or serious bodily injury | Quiver argued capability must be part of the use inquiry, effectively narrowing the guideline | Court: Taking control and applying the Taser against the officer constitutes "use" (more than brandishing), so enhancement proper |
| Proper interpretation of the two-step analysis in § 2A2.2(b)(2) | Quiver sought to merge ‘‘capable of causing death or serious bodily injury’’ into the use inquiry | Government and court read the guideline as separate: (1) weapon is ‘‘dangerous’’ by capability and (2) was it used | Court: Rejected Quiver’s merging; guideline asks (1) is it a dangerous weapon, and (2) was it "used" (more than brandishing) |
| Applicability of precedents about innocuous or non‑weapon objects becoming dangerous | Quiver cited cases limiting enhancements where use was innocuous or object not ordinarily a weapon | Court distinguished those cases: Taser is a weapon by design and Quiver’s use was non‑innocuous and active | Court: Cases about non‑weapon objects or innocuous uses do not defeat enhancement here |
Key Cases Cited
- United States v. Cherry, 572 F.3d 829 (10th Cir. 2009) (standard of review for guideline application)
- United States v. Wolfe, 435 F.3d 1289 (10th Cir. 2006) (deference to district court’s guideline application of facts)
- United States v. Wallace, 800 F.2d 1509 (9th Cir. 1986) (stun guns may cause permanent eye injury)
- United States v. Tissnolthtos, 115 F.3d 759 (10th Cir. 1997) (object not ordinarily a weapon can become dangerous depending on use)
- United States v. Dayea, 32 F.3d 1377 (9th Cir. 1994) (limits on treating non‑weapon instruments as weapons depending on manner of use)
- United States v. Sanchez, 914 F.2d 1355 (9th Cir. 1990) (driving a car at an officer can constitute "use" of a deadly weapon)
- Smith v. United States, 508 U.S. 223 (1993) (context matters for firearm "use" under a different statute; innocuous uses may not trigger enhanced penalties)
- United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995) (innocuous objects can become dangerous weapons when used assaultively)