                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                          April 28, 2011
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff–Appellee,
                                                           No. 10-2158
 v.                                              (D.C. No. 1:06-CR-00496-JEC-1)
                                                             (D.N.M.)
 BRYAN COMMANCHE,

          Defendant–Appellant.



                                ORDER AND JUDGMENT *


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.



      Bryan Commanche appeals the district court’s calculation of his sentence, arguing

the court erred in applying United States Sentencing Guideline § 2A2.2(b)(2)(B), an

enhancement for the use of a dangerous weapon. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm.




      *
         The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
                                              I

       This is Commanche’s second appeal. He was initially convicted on two counts of

assault resulting in serious bodily injury. However, the jury in his first trial found

Commanche not guilty on two counts of assault with a dangerous weapon. We reversed

the convictions and remanded for a new trial. United States v. Commanche, 577 F.3d

1261 (10th Cir. 2009). The facts of the case are detailed in our earlier decision. Id. at

1263-66.

       Following remand, Commanche was retried on two counts for assault resulting in

serious bodily injury in violation of 18 U.S.C. §§ 1153 & 113(a)(6). During trial,

Commanche testified that he used a small plastic-sheathed box cutter during his fight

with the victims. The victims testified that Commanche cut them with a sharp object. A

medical expert who treated the victims testified that the cuts sustained by the victims

resulted in “extreme physical pain” and posed a substantial risk of death.

       The jury at the second trial returned a guilty verdict on both counts. At

sentencing, Commanche renewed an objection—raised initially during his first

sentencing—to the Pre-Sentence Investigation Report’s recommendation that his offense

level be increased four levels for use of a dangerous weapon pursuant to U.S.S.G.

§ 2A2.2(b)(2)(B). The district court adopted the recommendation and applied the four-

level enhancement over Commanche’s objection. Commanche timely appealed.

                                              II

       We review the district court’s legal conclusions de novo and its factual findings

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

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dangerous weapon is defined in part by a Guidelines application note as “an instrument

capable of inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1, app. n.1(D).

       Commanche argues that the district court should have applied a clear and

convincing evidence standard to its determination that Commanche used a dangerous

weapon, and contends the evidence fell short of this standard. He cites United States v.

Watts, 519 U.S. 148, 156-57 (1997), for the proposition that a higher evidentiary standard

may be appropriate if: (1) a defendant was acquitted of the conduct underlying the

sentencing enhancement; and (2) the enhancement dramatically increases the defendant’s

sentence. Watts did not contain such a holding, although it acknowledged that some

circuit courts had crafted an exception to the general preponderance of the evidence

standard applicable to most sentencing determinations. Id. at 156 n.2.

       Regardless of the proper standard, the evidence presented at trial clearly and

convincingly showed that Commanche used a dangerous weapon. Commanche himself

admitted that he used a box cutter which contained a metal razor blade. Expert testimony

at trial further indicated that the cuts to the victims could have caused death and did, in

fact, cause serious bodily injury. The district court did not err in applying the

enhancement.

                                             III

       AFFIRMED.

                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge

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