Shoes Can Be Dangerous Weapons, Fifth Circuit Says

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By Robert Wilhelm

A shoe can be a dangerous weapon, subjecting a defendant to an increased sentence, the U.S. Court of Appeals for the Fifth Circuit ruled May 5 ( United States v. Velasco , 2017 BL 150901, 5th Cir., No. 16-30341, 5/5/17 ).

Whether an item is a dangerous weapon for purposes of the U.S. Sentencing Guidelines turns on intent, the court said in an opinion by Chief Judge Carl E. Stewart.

“The intent to do bodily harm is not measured by the actor’s subjective motivation, but rather, it is measured objectively, by what someone in the victim’s position might reasonably conclude from the assailant’s conduct,” the court explained.

Guidelines Section 2A2.2(b)(2)(B) provides for a four-level sentencing enhancement when a dangerous weapon is used. Sentencing enhancements allow, and in some cases require, a judge to increase a defendant’s sentence.

Head Stomping

Rafael Velasco was convicted of deliberately concealing a crime. During a prison fight, he and two other men took turns holding a victim down and stomping his head against the hard prison floor. All three men refused to cooperate with investigators.

The district court applied the four-level enhancement, noting that whether an item is dangerous depends on how it is used.

“Velasco’s intent was clear,” the court said. From the victim’s “perspective, it is reasonable to conclude that the assailants’ intent was to do him serious bodily harm.”

Judges Patrick E. Higginbotham and Gregg J. Costa joined in the opinion.

Prentice Lang White, Baton Rouge, La., represented Velasco. The U.S. Attorney’s Office in Lafayette, La., represented the government.

To contact the reporter on this story: Robert Wilhelm in Washington at rwilhelm@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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