                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     November 17, 2015

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 14-8077

DELRAY QUIVER,

      Defendant - Appellant.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF WYOMING
                     (D.C. NO. 2:14-CR-00096-SWS-1)
                   _________________________________

James H. Barrett, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, and Grant Russell Smith, Research and Writing Specialist, with him on the
briefs), Office of the Federal Public Defender, Cheyenne, Wyoming, for Defendant-
Appellant.

Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States
Attorney, with him on the brief), Office of the United States Attorney, District of
Wyoming, Lander, Wyoming, for Plaintiff-Appellee.
                       _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      Delray Quiver pleaded guilty to assaulting, resisting, and injuring a federal

officer. At sentencing, the district court applied a four-level Sentencing Guidelines
enhancement for Quiver’s “use” of a “dangerous weapon” (the officer’s Taser) during

the assault. U.S. Sentencing Guidelines Manual § 2A2.2(b)(2)(B) (U.S. Sentencing

Comm’n 2013). Quiver appeals the application of the enhancement. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM.


                               I. BACKGROUND

      A. Facts

      On January 15, 2013, Bureau of Indian Affairs (BIA) Police Officer Justin

Friday was dispatched to a house in Ethete, Wyoming, which is located on the Wind

River Indian Reservation. Officer Friday was responding to a call complaining about

two intoxicated men creating a disturbance. Upon arriving, Officer Friday found

Quiver and another man being loud and disruptive in their grandmother’s house.

Because of their behavior, she wanted them arrested and removed. After several

minutes of negotiating, Officer Friday convinced Quiver to step outside so that he

could arrest him. On their way outside, Quiver again grew uncooperative by

impeding Officer Friday from escorting him by the arm. Once outside, Quiver tried to

walk away from Officer Friday toward the road. Needing to arrest him, Officer

Friday grabbed Quiver’s arm to take him toward the patrol car, but Quiver pulled his

arm away. To gain control of Quiver, Officer Friday tripped Quiver and pushed him

face-down into the snow.




                                         2
      Soon before Quiver fully resisted him, Officer Friday removed the prong-mode

cartridge from his X26 TASER, leaving drive-stun mode as the sole option.1 As

Officer Friday tried to subdue Quiver, Quiver managed to turn over and punch

Officer Friday’s face, breaking his glasses. During the ensuing struggle, Quiver took

control of the Taser and drive-stunned Officer Friday’s leg. Quiver’s pressing the

Taser against Officer Friday’s thigh left two burn marks (the record also calls them

puncture marks) from the Taser’s electricity. Sometime during the altercation,

Officer Friday regained control of the Taser, won the fistfight, and succeeded in

subduing Quiver. After arresting Quiver, Officer Friday sought medical attention for

injuries to his face, right hand, and thigh, and for Quiver’s broken nose.

      B. Procedural History

      Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer

Friday while he performed official duties, in violation of 18 U.S.C. § 111(a)(1) and

(b).2 In accordance with its Presentence Investigation Report (PSR), the probation

officer recommended a four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for

Quiver’s use of a dangerous weapon during the assault. At sentencing, the district

court applied this enhancement over Quiver’s objection. All told, the district court

      1
         Tasers can operate in either probe mode or drive-stun mode. In probe mode, a
cartridge attached to the front propels two metal probes, which are attached to the
Taser by wires. The wires deliver an electrical current to incapacitate the person
targeted. In drive-stun mode, the Taser emits the same charge as in probe mode, but
the electrical current can be delivered only by physical contact.
       2
         In its indictment, the grand jury charged under 18 U.S.C. § 111(b) that
Quiver had caused bodily injury to Officer Friday, but it didn’t charge the alternative
basis for an enhanced penalty under that section: using a dangerous weapon during
the assault.
                                           3
calculated a total offense level of 26 and criminal-history category of IV, resulting in

an advisory-Guidelines range of 92 to 115 months’ imprisonment.3 The district court

then varied downward to a 70-month sentence based on its view of the relative

danger posed by Tasers as opposed to firearms.


                                  II. DISCUSSION

      A. Standard of Review

      “When considering a district court’s application of the guidelines, ‘we review

legal questions de novo and we review any factual findings for clear error, giving due

deference to the district court’s application of the guidelines to the facts.’” United

States v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009) (emphasis omitted) (quoting

United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)).

      B. Analysis

      Section 2A2.2(b)(2) provides for a four-level specific-offense characteristic if

the assault involved the use of a dangerous weapon. U.S.S.G. §§ 2A2.2 cmt. n.1,

1B1.1 cmt. n.1. Although § 2A2.2(b)(2) provides four alternative definitions of

“dangerous weapon,” we need look no further than the first. Under that definition, the

government must prove by a preponderance of the evidence that a “dangerous

      3
         The total offense level represented a base offense level of 14, 4 additional
levels for using a dangerous weapon during the assault, 3 additional levels for
causing bodily injury, 2 additional levels for being convicted under 18 U.S.C.
§ 111(b), and 6 additional levels for assaulting a government officer. U.S.S.G.
§§ 2A2.2(a), (b)(2)(B), (b)(3)(A), (b)(6), 3A1.2(b). From this, the probation officer
recommended subtracting 3 levels for Quiver’s acceptance of responsibility and his
timely notice to authorities of his intention to plead guilty. See U.S.S.G. § 3E1.1(a)
and (b).
                                           4
weapon” was “used.”4 We conclude that a Taser—even in drive-stun mode—is a

dangerous weapon. In either drive-stun or probe mode, a Taser is “capable of

inflicting . . . serious bodily injury,” which is defined as “injury involving extreme

physical pain or the protracted impairment of a function of a bodily member, organ,

or mental faculty; or requiring medical intervention such as surgery, hospitalization,

or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(D), (L).

      As the burn marks to Officer Friday’s thigh show, a Taser in drive-stun mode

is capable of causing serious bodily injury if applied to a sensitive spot, for instance,

an eye. Cf. United States v. Wallace, 800 F.2d 1509, 1513 (9th Cir. 1986)

(“[E]vidence was introduced at trial indicating that stun guns may cause permanent

injury to eyes . . . .”). That leaves the question of whether the Taser was “used”

during the assault. Unquestionably, by taking control of the Taser and applying it

against Officer Friday’s thigh, Quiver used the Taser. His use exceeded mere

“brandishing, displaying, or possessing a . . . dangerous weapon.” See U.S.S.G. §§

1B1.1, cmt. 1(I), 2A2.2(b)(2)(C). For these simple reasons, we agree with the district

court’s conclusion that the four-level enhancement applied.

      Yet Quiver takes a different view. For the enhancement to apply, he argues, a

Taser in drive-stun mode pressed against a thigh must be capable of causing death or

serious bodily injury. In so arguing, Quiver impermissibly uproots “capable of

causing death or serious bodily injury” from the dangerous-weapon determination

      4
        The exact language is “otherwise used,” meaning used in a manner other than
discharging a firearm but is “more than brandishing, displaying, or possessing.”
U.S.S.G. § 1B1.1 cmt. n.1(I).
                                           5
and replants it as part of the use determination. In effect, he rewrites the guideline by

requiring that a dangerous weapon be used in a way that it is “capable of” causing

death or serious bodily injury.

      We reject Quiver’s interpretation because it contradicts the guideline’s plain

language. The guideline asks two questions: (1) did the assault involve a dangerous

weapon; and (2) if so, was the dangerous weapon used (more actively than

brandishing, displaying, or possessing it)? Because it focuses on these two questions,

we can see that § 2A2.2(b)(2)(B) guards against a much lesser degree of risk than

does Quiver’s approach. Under the guideline, an assaulter’s using a dangerous

weapon in any fashion unleashes an unacceptable risk that death or serious bodily

injury might follow. Its four levels apply whether or not any bodily injury ensues.

When assaulters do in fact cause bodily injuries with dangerous weapons, the

assaulters receive extra punishment under § 2A2.2(b)(3) based upon the severity of

the bodily injury.

      Another problem for Quiver is that his cited cases deal with situations different

from his own. Courts in those cases have considered whether the § 2A2.2(b)(2)(B)

enhancement applied when the instrument used to cause harm was one not ordinarily

used as a weapon. See, e.g., United States v. Commanche, 421 F. App’x 868, 869

(10th Cir. 2011) (unpublished) (involving an assaulter who used a box cutter to slash

victims); United States v. Tissnolthtos, 115 F.3d 759, 761, 763 (10th Cir. 1997)

(involving an assaulter who threw a piece of firewood at a victim, striking him in the

head and causing the loss of an eye); United States v. Dayea, 32 F.3d 1377, 1380–81

                                           6
(9th Cir. 1994) (evaluating the reach of § 2A2.2(b)(2)(B)’s dangerous-weapon

enhancement and hypothetically noting that a person driving a car to a location where

he assaulted a victim with his hands would not have “used” the car for guideline

purposes); United States v. Sanchez, 914 F.2d 1355, 1358, 1363 (9th Cir. 1990)

(approving a jury instruction in an assault-on-federal-officer prosecution defining

“deadly weapon” as “any object which, as used or attempted to be used, may

endanger the life of or inflict great bodily harm on a person,” and concluding that

driving a car directly at the federal officer was “using” it and not merely

“brandishing” it).

      We fully agree with those cases that an object not ordinarily used as a

dangerous weapon can become a dangerous weapon depending on the manner of its

use. In fact, the Guidelines say so. See U.S.S.G. § 2A2.2 cmt. n.1 (“‘Dangerous

weapon’ has the meaning given that term in § 1B1.1, Application Note 1, and

includes any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or

an ice pick) if such an instrument is involved in the offense with the intent to commit

bodily injury.”). But Quiver acknowledges that a Taser is a weapon, going so far as

to state that “[i]t is impossible to think of a purpose for a Taser other than as a

weapon.” Appellant’s Reply Br. 5. Thus, a Taser (unlike the objects not ordinarily

used as weapons referenced in his cited cases) need not depend on a manner of use to

achieve the designation of a “dangerous weapon” under § 2A2.2(b)(2)(B).

      Finally, Quiver cites cases with language opposing increased punishment when

defendants used dangerous weapons innocuously. See, e.g., Smith v. United States,

                                           7
508 U.S. 223, 228, 232 (1993) (concluding that defendant “used” his firearm under

18 U.S.C. § 924(c)(1) by attempting to trade it for drugs, but noting that “the

defendant who ‘uses’ a firearm to scratch his head” cannot receive “punishment

under § 924(c)(1) unless it facilitates or furthers the drug crime”); United States v.

Sturgis, 48 F.3d 784, 787–88 (4th Cir. 1995) (examining a conviction under

18 U.S.C. § 113(c)5—assault with a dangerous weapon—and concluding that an HIV-

positive prisoner who bit correctional officers had used a dangerous weapon, his

teeth, because “innocuous objects or instruments may become capable of inflicting

serious injury when put to assaultive use”). The short answer here, of course, is that

Quiver’s use of the Taser was anything but innocuous. He got control of the Taser

and actively used it as part of his assault on Officer Friday.


                                 III. CONCLUSION

      The district court properly applied the four-level enhancement for use of a

dangerous weapon. We AFFIRM Quiver’s sentence.




      5
        Congress redesignated 18 U.S.C. § 113(c) as § 113(a)(3). Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 170201, 108 Stat.
1796, 2042.
                                            8
