UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ZAKARIA TAOUFIK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:18-cr-00073-CMH-1) Submitted: March 17, 2020 Decided: May 12, 2020 Before KEENAN and RUSHING, Circuit Judges, and Thomas E. JOHNSTON, Chief United States District Judge for the Southern District of West Virginia, sitting by designation. Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Keenan wrote the opinion, in which Judge Rushing and Judge Johnston concurred. James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. BARBARA MILANO KEENAN, Circuit Judge: Zakaria Taoufik was convicted of taking an action to prevent or hamper his removal from the United States, in violation of 8 U.S.C. § 1253(a)(1)(C), and of assaulting federal officers, in violation of 18 U.S.C. § 111(a). The district court sentenced Taoufik to a term of 60 months’ imprisonment. On appeal, Taoufik argues that the district court erred: (1) in excluding evidence regarding Taoufik’s mental health; and (2) in imposing a sentencing enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for use of a dangerous weapon during an assault. We conclude that the district court did not abuse its discretion in excluding evidence of Taoufik’s mental health because the evidence was proffered for an impermissible purpose, namely, to excuse his conduct. Regarding the dangerous weapon enhancement, the government has abandoned on appeal its argument that Taoufik’s saliva, which struck the officers, qualified as a dangerous weapon because Taoufik has an infectious disease. Now, the government maintains simply that Taoufik’s use of his teeth and head in attempting to bite and “head butt” the officers qualified as the use of a dangerous weapon. We conclude that the record before us does not support imposition of the dangerous weapon enhancement, and that the district court erred in reaching a contrary conclusion. Thus, we affirm in part, and vacate in part, the district court’s judgment and remand for resentencing. 2 I. Taoufik, a citizen of Morocco, entered the United States in 1999 as a lawful permanent resident. In 2010, immigration authorities issued a removal order based on Taoufik’s commission of numerous criminal offenses not at issue in this appeal. In October 2017, officers with the United States Immigration and Customs Enforcement (ICE) attempted to remove Taoufik to Morocco. However, Taoufik refused to board the airplane and threatened to “fight” any attempt by the officers to force him onto the plane. The pilot refused to allow Taoufik to board, and he was returned to ICE custody. In January 2018, immigration authorities again attempted to remove Taoufik to Morocco by placing him on a commercial flight at Dulles International Airport. Taoufik, who was restrained by handcuffs ...
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