and Submitted April 12, 2019 Seattle, Washington
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.
B. Sporn (argued), Federal Defenders of Washington, Yakima,
Washington, for Defendant-Appellant.
J. Hanlon (argued), Assistant United States Attorney; Joseph
H. Harrington, United States Attorney; United States
Attorney's Office, Yakima, Washington; for
Before: William A. Fletcher, Consuelo M. Callahan, and Morgan
Christen, Circuit Judges.
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.
Fletcher, Circuit Judge.
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.
Factual and Procedural Background
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
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).
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