                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 18-30141
           Plaintiff-Appellee,
                                        D.C. No.
              v.                  1:17-cr-02030-SAB-1

WALTER RICHARD
HARRINGTON,                              OPINION
        Defendant-Appellant.


     Appeal from the United States District Court
        for the Eastern District of Washington
    Stanley Allen Bastian, District Judge, Presiding

         Argued and Submitted April 12, 2019
                 Seattle, Washington

               Filed December 24, 2019

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

             Opinion by Judge W. Fletcher
2               UNITED STATES V. HARRINGTON

                            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.


                             COUNSEL

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.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. HARRINGTON                   3

                         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.
4            UNITED STATES V. HARRINGTON

§ 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 recommend a sentence of no more than
a 78-month term of imprisonment, and Harrington agreed to
recommend a sentence of no less than a 41-month term of
imprisonment.

    The Presentence Investigation Report (“PSR”)
recommended a total adjusted offense level of 21 and a
criminal history category of V, resulting in an advisory
guideline range of 70 to 87 months. The offense level
included a base offense level of 14 under U.S.S.G.
§ 2A2.2(a), a seven-level increase under § 2A2.2(b)(3)(C),
and another three-level enhancement under § 2A2.2(b)(4).
The PSR also recommended a three-level reduction for
acceptance of responsibility and cooperation.

    Harrington objected to the three-level enhancement under
§ 2A2.2(b)(4) for strangling a spouse, arguing it constituted
impermissible double counting. Harrington argued the
enhancement targets conduct that is already an element of the
offense of conviction, and, therefore, the conduct is already
accounted for in the base offense level.

    The government disagreed. In support of its argument,
the government cited an unpublished Eleventh Circuit
decision, see United States v. Brigman, 711 Fed. App’x 971
(11th Cir. 2017), which held that the increases under
§ 2A2.2(b)(3)(A) for bodily injury and (b)(4) for
              UNITED STATES V. HARRINGTON                    5

strangulation do not constitute impermissible double counting
with the base offense level under § 2A.2.2(a).

   The district court agreed with the government and held
the three-level enhancement does not constitute
impermissible double counting. The district court sentenced
Harrington to an 87-month term of imprisonment, the high
end of the Guidelines range.

    Harrington’s plea agreement provided for a limited right
to appeal a sentence in excess of 78 months. This appeal
followed.

                   II. Standard of Review

    “[W]e review the district court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for
clear error.” United States v. Smith, 719 F.3d 1120, 1123 (9th
Cir. 2013).

                       III. Discussion

    Impermissible double counting occurs when a court
applies a provision of the Guidelines that takes into account
conduct or harm that has already been fully taken into
account by application of another provision of the Guidelines.
See, e.g., United States v. Joey, 845 F.3d 1291, 1296–97 (9th
Cir. 2017). Impermissible double counting can also occur
when a court applies a provision of the Guidelines that takes
into account conduct or harm that has already been accounted
for as an element of the crime of conviction and the Guideline
identifies a specific offense level for that crime, rather than
specific offense levels based on a range of conduct. See, e.g.,
United States v. Hornbuckle, 784 F.3d 549, 553–54 (9th Cir.
6             UNITED STATES V. HARRINGTON

2015) (comparing U.S.S.G. § 2G1.3(b)(4)(A) to 18 U.S.C.
§ 1591(a), which has been incorporated into U.S.S.G.
§ 2G1.3(a)).

    Harrington was convicted of violating 18 U.S.C.
§ 113(a)(8), which provides that someone who assaults “a
spouse, intimate partner, or dating partner by strangling,
suffocating, or attempting to strangle or suffocate, [shall be
punished] by a fine under this title, imprisonment for not
more than 10 years, or both.” 18 U.S.C. § 113(a)(8). The
applicable Guidelines provision for violations of 18 U.S.C.
§ 113(a)(8) is § 2A2.2, which covers “aggravated assault.”
See U.S.S.G. Appendix A. Section 2A2.2 applies to any
“felonious assault that involved (A) a dangerous weapon with
intent to cause bodily injury (i.e., not merely to frighten) with
that weapon; (B) serious bodily injury; (C) strangling,
suffocating, or attempting to strangle or suffocate; or (D) an
intent to commit another felony.” U.S.S.G. § 2A2.2 cmt. n.1.
Section 2A2.2 is the relevant provision for numerous
convictions under 18 U.S.C. § 113, including convictions
under § 113(a)(2), (a)(3), and (a)(6), in addition to (a)(8)
under which Harrington was convicted. As a result, the
sentencing provisions of § 2A2.2 cover a range of conduct,
including assault with intent to commit any felony, assault
with a dangerous weapon, and assault resulting in serious
bodily injury, in addition to assault of a spouse by strangling.
See 18 U.S.C. § 113.

    Section 2A2.2 accounts for this range of conduct by
setting a base offense level of 14 in subsection (a), and then
detailing various “Specific Offense Characteristics” in
subsection (b). The specific offense characteristics result in
various upward sentencing adjustments, such as a three- to
five-level increase if a firearm was used, a three- to seven-
              UNITED STATES V. HARRINGTON                    7

level increase based on the degree of bodily injury, and a
three-level increase if the offense involved strangling a
spouse, among others. U.S.S.G. § 2A2.2(b).

    Harrington contends that the district court erred in
applying the three-level adjustment for strangling a spouse in
subsection (b)(4), on the ground that the base offense level in
subsection (a) has already taken that conduct into account.
We disagree. A plain-text reading of the Guideline indicates
that the base offense level contemplated by § 2A2.2(a) does
not necessarily capture the conduct detailed in the “specific
offense characteristics.”        First, the specific offense
characteristics address different behavior, some of which
relate to the four different forms of aggravated assault
encompassed within the section, and some of which do not.
Second, subsection (b) provides limits on the cumulative
adjustments provided under that subsection—for example,
providing that the cumulative adjustments for a firearms
adjustment, bodily-injury adjustment, and strangling
adjustment cannot exceed twelve levels—suggesting that the
Sentencing Commission intended these adjustments to apply
cumulatively on top of the base offense level. Third, the
Commentary does not forbid application of the specific
offense characteristics on top of the base offense level;
indeed, it indicates the opposite. For example, Application
Note 3 states that “[i]n a case involving a dangerous weapon
with intent to cause bodily injury, the court shall apply both
the base offense level” and the adjustments for “specific
offense characteristics.” U.S.S.G. § 2A2.2 cmt. n.3.

    Our decision in United States v. Reese, 2 F.3d 870 (9th
Cir. 1993), supports our conclusion. In Reese, we examined
a prior version of § 2A2.2. We stated that “the use of a single
aspect of conduct both to determine the applicable offense
8             UNITED STATES V. HARRINGTON

guideline and to increase the base offense level mandated
thereby will constitute impermissible double counting only
where, absent such conduct, it is impossible to come within
that guideline.” Id. at 895. “If, on the other hand, it is
possible to be sentenced under a particular offense guideline
without having engaged in a certain sort of behavior, such
behavior may be used to enhance the offense level, for in this
situation, the guideline’s base offense level will not
necessarily have been set to capture the full extent of the
wrongfulness of such behavior.” Id. We went on to hold that
“no impermissible double counting occurs” when a court
applies the use of a dangerous weapon adjustment or the
serious bodily injury adjustment in § 2A2.2 “to increase the
base offense level” in § 2A2.2. Id. at 896.

     The same reasoning applies here. The base offense level
specified in § 2A2.2(a) applies to a broad range of behavior.
It is possible to be sentenced under § 2A2.2(a) without having
strangled one’s spouse. Therefore, the base offense level
does not necessarily “capture the full extent of the
wrongfulness” of Harrington’s behavior, and the three-level
enhancement under § 2A2.2(b)(4) does not constitute
impermissible double counting. Id. at 895.

    Harrington relies on Hornbuckle, 784 F.3d at 553, for the
proposition that there is double counting “when a court
applies an enhancement for a necessary element of the
underlying conviction.” In Hornbuckle, we compared
U.S.S.G § 2G1.3(b)(4)(A), an enhancement, to the elements
of the crime of conviction, 18 U.S.C. § 1591(a). We did so
because the Guideline provided a specific base offense level
for the crime of conviction, rather than base offense levels
that applied to a range of conduct, and the circumstance
warranting the enhancement was neither an element of the
                UNITED STATES V. HARRINGTON                           9

crime of conviction nor accounted for by the offense level
specified for that crime.1 Here, by contrast, though
strangulation is an element of Harrington’s crime, the base
offense level applies to a range of conduct and the
aggravating circumstance, strangulation, is only accounted for
by the enhancement.

   Harrington’s case is readily distinguishable from
Hornbuckle. Put simply, the Guideline base offense level in
Harrington’s case was not specific to his crime of
conviction—assault of a spouse by strangulation.

                             Conclusion

    We hold that application of the three-level adjustment for
strangulation to Harrington’s sentence does not constitute
impermissible double counting.

    AFFIRMED.




    1
      A person convicted of 18 U.S.C. § 1591(a) is sentenced pursuant to
either § 1591(b)(1) or § 1591(b)(2) depending on the victim’s age and
whether coercion was used. Each sentencing provision corresponds to a
unique base offense level under U.S.S.G. § 2G1.3(a).
