Aggravated Assaults with Chairs versus Guns: Impermissible Applied Double Counting Under the Sentencing Guidelines

In a bar called Andrea’s Attic, David and Victor were having a drink when they got into an argument. The argument escalated until Victor said something that infuriated David. David looked at Victor, and, wanting to hurt Victor, grabbed the nearest object, a chair, and then threw it at Victor. The chair hit Victor and he fell to the ground, but was not hurt. In a bar called Barb’s Barn down the street, Valerie was having a drink. Dorothy walked into the bar, grabbed Valerie by the arm and dragged her outside onto the street. As Valerie was dragged, she saw that Dorothy gripped a gun in her hand. On the street, Dorothy pointed the gun at Valerie and yelled, “You are going to die.” Then Dorothy waved the gun in the air, threatening to fire it at the bar, at the sky, at Valerie, but never fired. Then, after holding Valerie at gunpoint for five minutes, Dorothy hit Valerie on the back of the head, pistol whipping her, so that she fell to the ground. Valerie was not injured. Currently, in most federal circuits, despite the fact that Dorothy threatened Valerie with a brandished gun that she carried into the bar with her while David picked up the nearest chair and threw it without brandishing or threatening, David and Dorothy will receive the same sentence for their crimes. Courts hold that each committed an aggravated assault while “otherwise using” a dangerous weapon under the United States Federal Sentencing Guidelines (“Guidelines” or “USSG”), but because neither committed another felony during the assault, and neither victim was seriously injured, courts will treat each the same under the Guidelines. Courts should sentence David and Dorothy differently because David did not “otherwise use” the chair to commit the aggravated assault, and, in fact, it was only his “use” of the chair that qualified him for aggravated assault as opposed to simple assault. On the other hand, Dorothy qualified for the aggravated assault Guideline because she possessed a gun, and then, when she pistol whipped Valerie, she “otherwise used” the gun. This Note addresses the sentencing issues presented by these contrasting examples and argues that courts should sentence defendants like David, who used a chair, more leniently than defendants like Dorothy, who used a gun.