933 F.3d 519
6th Cir.2019Background
- Pineda-Duarte, an unauthorized immigrant, was found tending >1,000 marijuana plants; officers announced themselves and ordered him to the ground.
- When approached, Pineda moved/swing a shovel toward an officer, then dropped it and fled; officer was not struck or injured.
- Pineda pleaded guilty to manufacturing marijuana; illegal reentry charge dismissed per plea agreement.
- Probation recommended a two-level enhancement under U.S.S.G. § 2D1.1(b)(2) (used violence / credible threat / directed use of violence); district court applied the enhancement.
- At sentencing, defense argued the shovel movement was reflexive and non-violent; district court characterized it as a threat or attempted use of violence but did not expressly find intent to injure.
- Sixth Circuit vacated and remanded for resentencing, directing the district court to determine whether Pineda formed the requisite intent to injure (i.e., whether he "used violence") under § 2D1.1(b)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pineda "made a credible threat to use violence" under § 2D1.1(b)(2) | Government: swinging the shovel at an officer qualifies as a credible threat | Pineda: he did not verbally or otherwise credibly communicate intent; he acted, not threatened | Court: Not a credible threat—Pineda acted rather than merely threatened |
| Whether swinging and missing the officer "used violence" under § 2D1.1(b)(2) | Government: exerting force by swinging at the officer satisfies "used violence" even if no injury resulted | Pineda: a swing-and-miss is at most an attempt and thus not "use of violence" under the Guideline | Court: "Used violence" includes exertion of physical force with intent to injure even if no injury results; but remanded for district court to make explicit findings on intent and force before applying the enhancement |
Key Cases Cited
- United States v. Taylor, 648 F.3d 417 (6th Cir. 2011) (de novo review of Guidelines legal conclusions)
- United States v. Moon, 513 F.3d 527 (6th Cir. 2008) (accept factual findings unless clearly erroneous)
- United States v. Babcock, 753 F.3d 587 (6th Cir. 2014) (use of statutory-construction canons for Guidelines interpretation)
- United States v. Henry, 819 F.3d 856 (6th Cir. 2016) (plain-meaning approach to Guideline terms)
- Johnson v. United States, 559 U.S. 133 (2010) (use of dictionaries to define statutory terms)
- United States v. McClellan, 164 F.3d 308 (6th Cir. 1999) (district court must articulate reasons sufficient for appellate review)
- United States v. Oliver, 919 F.3d 393 (6th Cir. 2019) (remand appropriate to permit district court to apply clarified legal standard)
- United States v. Powell, 847 F.3d 760 (6th Cir. 2017) (intent may be inferred from conduct)