A guy in a marijuana patch realizes that he’s been found out and the cops are closing in; he takes a wild swing with a shovel and tries to flee on foot but apparently not being fleet of foot is caught. From such modest origins comes the question: was the swing and miss with the shovel a use of violence triggering a two-level enhancement under § 2D1.1(b)(2) of the United States Sentencing Guidelines. Maybe but maybe not the Sixth Circuit has answered in United States v. Pineda-Duarte.
A farm suspected of growing marijuana came under surveillance of the Kentucky State Police. The defendant, Reynaldo Pineda-Duarte, was seen tending to the crop. Here’s what happened next:
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.
The district court, Hon. Joseph M. Hood of the Eastern District of Kentucky, held that the enhancement under § 2D1.1(b)(2) applied because “swinging a shovel ‘qualifies as a threat or attempted use of violence.’”
On appeal, the Sixth Circuit concluded that the “used violence” clause in § 2D1.1 (b)(2) means to exert physical force with the intent to injure another person, an interpretation, the Court assured, “consistent with … dictionaries of contemporary vintage [and] .. common-sense understanding [.]”
That would seem clear enough but the Sixth Circuit cannot leave well enough alone and explained further on “the law”:
Where one acts forcefully with intent to harm, but the attempt to harm fails that act would likely be deemed violent.
But on the other hand:
But now think about the force aspect of a violent act. Where one attempts to act forcefully, but fails to engage in a forceful act, the act is likely not violent.
The case was remanded for a finding as to Pineda’s intent. The Sixth Circuit suggested two alternatives: Pineda could have swung the shovel reflexively with no intent to cause harm, or he could have swung it with intent to harm. There is a third alternative in the one probably closer to reality: Pineda swung the shovel to have the officers step back and gain himself more time and space to flee successfully; no one is going to think a single shovel swing at one of a group of law enforcement officers is going to put the issue to rest.
The Sixth Circuit’s opinion was authored by Judge Chad Readler and joined by Judges Karen Nelson Moore and Judge Deborah Cook.
