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United States v. Harrington

United States Court of Appeals, Ninth Circuit

December 24, 2019

United States of America, Plaintiff-Appellee,
v.
Walter Richard Harrington, Defendant-Appellant.

          Argued and Submitted April 12, 2019 Seattle, Washington

          Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding No. 1:17-cr-02030-SAB-1.

          Jeremy B. Sporn (argued), Federal Defenders of Washington, Yakima, Washington, for Defendant-Appellant.

          Thomas J. Hanlon (argued), Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Yakima, Washington; for Plaintiff-Appellee.

          Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         Affirming a sentence for assault by strangling a spouse in Indian country, the panel held that the district court's application of a three-level enhancement set forth in U.S.S.G. § 2A2.2(b)(4) - for the specific offense characteristic of strangling a spouse - does not constitute impermissible double counting, because it is possible to be sentenced under U.S.S.G. § 2A2.2(a), which sets the base offense level for a broad range of conduct, without having strangled one's spouse.

          OPINION

          W. Fletcher, Circuit Judge.

         Walter Harrington appeals the sentence imposed following his guilty plea to assault by strangling a spouse in Indian country in violation of 18 U.S.C. § 113(a)(8). Harrington contends that the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4) of the U.S. Sentencing Guidelines ("Guidelines"). He contends that because his conviction was for strangling a spouse, that conduct was already accounted for in the base offense level of § 2A2.2(a). We affirm the district court.

         I. Factual and Procedural Background

         On March 25, 2017, Walter Harrington, a member of the Round Valley Indian Tribes, assaulted his wife within the Yakama Indian Reservation. He beat and strangled her, resulting in extensive bruising, neck pain, hemorrhaging, and two fractured ribs.

         Harrington pleaded guilty to domestic assault and battery and to malicious mischief in Yakama Nation Tribal Court. The federal government charged Harrington in federal district court with one count of assault of a spouse by strangulation under 18 U.S.C. § 113(a)(8) and one count of assault with intent to commit murder under 18 U.S.C. § 113(a)(1).

         Harrington pleaded guilty to the assault by strangulation count in exchange for the government's dismissal of the assault with intent to commit murder count. The parties agreed to a base offense level of 14 under U.S.S.G. § 2A2.2(a) and a seven-level enhancement under § 2A2.2(b)(3)(C) because the victim suffered permanent or life-threatening bodily injury. Harrington and the federal government disagreed over whether the base offense level should be increased by three levels under § 2A2.2(b)(4) because the offense involved strangling a spouse. The federal government agreed to ...


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