RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0175p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 18-6118 v. │ │ │ REYNALDO PINEDA-DUARTE, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cr-00105-1—Joseph M. Hood, District Judge. Decided and Filed: July 31, 2019 Before: MOORE, COOK, and READLER, Circuit Judges _________________ COUNSEL ON BRIEF: Cathryn R. Armistead, ARMISTEAD LAW GROUP, PLLC, Nashville, Tennessee, for Appellant. Charles P. Wisdom, Jr., Lauren Tanner Bradley, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. _________________ OPINION _________________ CHAD A. READLER, Circuit Judge. Suppose an individual approached by a police officer for a suspected drug offense swings a shovel at the officer—but misses. Has the individual “used violence,” thereby triggering the sentencing enhancement in U.S.S.G. § 2D1.1(b)(2) of the Federal Sentencing Guidelines? No. 18-6118 United States v. Pineda Duarte Page 2 While the district court did apply the § 2D1.1(b)(2) enhancement, the court did not expressly find that the defendant “used violence.” Rather, given the somewhat unique nature of the conduct at issue—swinging a shovel but missing the intended target—the district court characterized the defendant as either having threatened to use violence, or, alternatively, having attempted to use violence. But neither characterization fits the Guideline provision. Section 2D1.1(b)(2) applies where a defendant (1) “used violence,” (2) “made a credible threat to use violence,” or (3) “directed the use of violence.” The conduct here plainly is not directing the use of violence. And the conduct was more than a threat—the defendant did not threaten to swing a shovel, he in fact appears to have done so. The remaining clause of § 2D1.1(b)(2), by its terms, applies only where the defendant “used violence.” It does not independently allow for an enhancement where an act is characterized only as an attempt to use violence. Given the unusual facts of this case, the district court’s characterization of the events at issue was understandable. Nonetheless, we VACATE the defendant’s sentence and REMAND the case to the district court for resentencing after application of the correct legal standard regarding the use of violence. I. BACKGROUND Reynaldo Pineda-Duarte is a citizen of Mexico. Previously, he had twice been detained and removed by federal officers, once in California, and once in Texas, for entering the United States without authorization. He returned again, this time making his way to Clark County, Kentucky, a small farming community not far from Lexington. One Clark County farm in particular had captured the attention of the Kentucky State Police. The farm was suspected of containing over 2,000 marijuana plants, and the State Police accordingly had the area under surveillance. In the course of servicing equipment used to monitor the area, the officers saw Pineda cultivating what appeared to be marijuana plants. The officers headed in Pineda’s direction, strategically surrounded him, announced their presence, and ordered Pineda to “get on the ground.” ...
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