USA v. John Tolbert, Jr.

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Boyce F. Martin, Jr., Julia Smith Gibbons (AUTHORING), Circuit Judges; George C. Steeh, U.S. District Judge for the Eastern District of Michigan.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0041p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-6467
v.
>
,
JOHN R. TOLBERT, JR.,
Defendant-Appellant. N
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 10-00030-001—Curtis L. Collier, Chief District Judge.

Argued: November 16, 2011
Decided and Filed: February 10, 2012
Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*
_________________
COUNSEL
ARGUED: Francis L. Lloyd, Jr., LAW OFFICE OF FRANCIS L. LLOYD, JR.,
Knoxville, Tennessee, for Appellant. James E. Arehart, ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Francis L.
Lloyd, Jr., LAW OFFICE OF FRANCIS L. LLOYD, JR., Knoxville, Tennessee, for
Appellant. James E. Arehart, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEYS, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Defendant-Appellant John Tolbert,
Jr. pled guilty to a charge of assaulting a federal officer, resulting from an incident in

*

The Honorable George C. Steeh III, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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which he struck a Deputy United States Marshal in the head with a plastic water pitcher
at the conclusion of another trial. At sentencing, the district court found that the pitcher
constituted a “dangerous weapon” under the circumstances, and it applied the
recommended four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B). On appeal,
Tolbert argues that the examples given in the definition of what constitutes a dangerous
weapon should be read as limiting and that the plastic water pitcher used in the incident
was incapable of causing serious bodily injury. For the reasons that follow, we affirm
the sentence imposed by the district court.
I.
On October 21, 2009, at the conclusion of a jury trial in which Tolbert was
convicted of knowingly possessing an unregistered firearm, the district court dismissed
the jury, set a sentencing date, and adjourned court. Deputy United States Marshal
Kevan Thompson approached Tolbert while another marshal instructed Tolbert to place
his hands behind his back in preparation to be handcuffed. Tolbert did not comply.
Instead, Tolbert grabbed a water pitcher that was sitting on the defense table and struck
Thompson in the head with it. After being subdued and secured, Tolbert was led from
the courtroom. Thompson did not sustain any serious injury, nor did he seek medical
attention.
Tolbert was indicted for assaulting a federal officer, in violation of 18 U.S.C.
§§ 111(a)(1) and 1114. Tolbert entered a plea of guilty, which was accepted by the
district court on June 29, 2010.

The presentence investigation report (“PSR”)

recommended a four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for use of a
dangerous weapon in the assault of Thompson. The PSR references U.S.S.G. § 2A2.2
Application Note 1, which provides that a dangerous weapon includes any instrument
that is not ordinarily used as a weapon if such an instrument is involved in the offense
with the intent to commit bodily injury. Tolbert objected to this dangerous weapon
enhancement, arguing that the water pitcher was not capable of causing death or serious
bodily injury. The probation officer responded that the plastic water pitcher was used
as an improvised blunt impact weapon and was “absolutely capable of causing serious

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bodily injury or death.” The PSR recommended a sentence of thirty to thirty-seven
months of imprisonment.
FBI Agent David Bukowski testified at the sentencing hearing that the water
pitcher was made out of a very hard plastic that was intact before the incident. After the
incident, the plastic casing on the water pitcher was cracked. The record suggests that
the water pitcher had been filled prior to the court proceeding, but it is unclear how
much water, if any, remained in the pitcher at the time of the assault. The pitcher was
roughly estimated to have a height of about ten inches, with a handle of six inches, and
a circumference of about twelve inches. It was estimated to weigh about half of a pound
to a pound when empty. Bukowski testified that Tolbert was standing, raised the pitcher
over his head, and struck Thompson in the head, delivering a “substantial blow.” On
cross-examination, Bukowski conceded that the pitcher had fallen to the carpeted floor
during the incident; that Thompson did not sustain any serious injury nor did he seek
medical attention; that Thompson resumed his duties immediately and helped escort
Tolbert out of the courtroom; that Tolbert apologized to Thompson later that day; and
that Thompson did not provide a victim impact statement.
After Bukowski’s testimony and argument from both parties, the district court
denied Tolbert’s objection to the application of the U.S.S.G. § 2A2.2(b)(2)(B)
enhancement. The court arrived at this decision by looking at the circumstances of the
incident, considering “what the object was, how the object was used, and what was the
intent of the person [using it],” as well as the part of the body on which the weapon was
used The court concluded that the water pitcher did constitute a dangerous weapon and
that it was used in such a manner as to demonstrate an intent to commit bodily injury.
The district court ultimately sentenced Tolbert to a thirty-seven month term of
imprisonment.

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II.
“When reviewing the district court’s application of the Sentencing Guidelines,
we review the district court’s factual findings for clear error and mixed questions of law
and fact de novo.” United States v. May, 568 F.3d 597, 604 (6th Cir. 2009) (citing
United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005)). The district court’s
interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Anglin,
601 F.3d 523, 526 (6th Cir. 2010) (citation omitted). If the district court correctly
interpreted the Sentencing Guidelines, its finding that the water pitcher constituted a
dangerous weapon capable of inflicting serious bodily harm is a factual finding, which
is reviewed for clear error. “A finding is clearly erroneous where, although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United States v. Webb, 616
F.3d 605, 609 (6th Cir. 2010) (citation and internal quotation marks omitted).
Tolbert argues that the plastic water pitcher that he used to commit his offense
was not a dangerous weapon under Section 2A2.2(b)(2)(B) of the Sentencing Guidelines,
and, therefore, the four-level enhancement that was applied pursuant to this provision
was not justified. A “dangerous weapon” under this guideline is defined as having “the
meaning given that term in § 1B1.1, Application Note 1, and includ[ing] 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.” U.S.S.G.
§ 2A2.2, Application Note 1. The incorporated definition from Section 1B1.1 states that
a “dangerous weapon” means:
(i) an instrument capable of inflicting death or serious bodily injury; or
(ii) an object that is not an instrument capable of inflicting death or
serious bodily injury but (I) closely resembles such an instrument; or
(II) the defendant used the object in a manner that created the impression
that the object was such an instrument (e.g. a defendant wrapped a hand
in a towel during a bank robbery to create the appearance of a gun).
U.S.S.G. § 1B1.1, Application Note 1(D). Further, “serious bodily injury” is defined as
“injury involving extreme physical pain or the protracted impairment of a function of a

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bodily member, organ, or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1, Application Note
1(L). Finally, application of the Section 2A2.2 dangerous weapon enhancement requires
a showing that the instrument was used with the intent to commit bodily injury. “Bodily
injury” is defined as “any significant injury; e.g., an injury that is painful and obvious,
or is of a type for which medical attention ordinarily would be sought.” U.S.S.G.
§ 1B1.1, Application Note 1(B).
It is uncontested that Thompson did not actually suffer serious bodily injury as
a result of Tolbert’s assault with the plastic water pitcher. The issue is whether this
plastic water pitcher was capable of inflicting a serious bodily injury. The standard for
assessing this question is an objective one. See United States v. Rodriguez, 301 F.3d
666, 668 (6th Cir. 2002) (citation omitted) (holding that an objective standard applies
in determining whether an object may be considered a dangerous weapon for the purpose
of the robbery guideline, U.S.S.G. § 2B3.1(b)(2)(E), which incorporates the same
dangerous weapon definition from U.S.S.G. § 1B1.1, Application Note 1(D)). “The
ultimate inquiry is whether a reasonable individual would believe that the object is a
dangerous weapon [i.e., capable of inflicting serious bodily injury] under the
circumstances.” Id. (citations omitted).
Tolbert argues that the fact that the water pitcher did not cause serious bodily
injury in this incident is evidence that this object is incapable of ever inflicting such
serious injury. Although the fact that Thompson suffered no serious injuries from
Tolbert’s blow provides some evidence of the capabilities of the pitcher as a weapon, the
probative value of this evidence is uncertain. One negative result—no serious injury
occurring—does not allow one to conclude that the entire class of results will be
negative. We are interested in the overall class, which defines what kind of injuries the
water pitcher is capable of inflicting.
Tolbert further argues that there is no evidence that if he had used better aim, or
committed the assault with increased vigor, serious bodily injury of the type described
in the Sentencing Guidelines definitions could have resulted. The United States,

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however, offered evidence that the water pitcher was made of a very hard plastic
material, that it had a six-inch handle, that it weighed about half of a pound to a pound
when empty, and that it may have contained some water when it was used to strike
Thompson. These characteristics—the hardness of the object, the increased leverage
from the handle, and the increased mass—combine to increase the energy that an
attacker would be able to impart when striking a victim. It is reasonable to infer from
this evidence and from common experience, as the district court did, that such a water
pitcher, swung with sufficient force and proper aim, was capable of inflicting serious
bodily harm as defined by the Guidelines.
Tolbert also argues that making this sort of inference, which concludes that a
plastic water pitcher could be a dangerous weapon, would be to treat the definition of
dangerous weapons under U.S.S.G. § 2A2.2(b)(2)(B) as encompassing all tangible
objects that have a certain weight and can be wielded.

Tolbert asserts that the

Guidelines provision’s list of examples of objects that are not ordinarily used as weapons
but can be considered dangerous weapons if they are used in the offense with the intent
to commit bodily injury—a car, a chair, or an ice pick—should be read as limiting. He
cites Begay v. United States, 553 U.S. 137 (2008), in support of his argument that, as a
principle of construction, a list of examples given after a definition limits the definition
and should not be ignored into meaninglessness. Courts do have a “duty to give effect,
if possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174
(2001) (citations and internal quotation marks omitted). Begay utilized this principle of
construction in holding that the example crimes listed in the Armed Career Criminal Act
limited the scope of crimes covered under the general catch-all clause to crimes that
were similar to the examples themselves. 553 U.S. at 143.
This principle, however, does not apply in the manner advocated by Tolbert to
the definition of a “dangerous weapon” under U.S.S.G. § 2A2.2(b)(2)(B). First, we note
that the list of examples of objects not ordinarily used as weapons but which can be
dangerous weapons under certain circumstances is set off from the other text of the
definition by parentheses and is preceded by an “e.g.” signal. U.S.S.G. § 2A2.2,

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Application Note 1. This punctuation and use of the “e.g.” signal, which was not found
in the statutory clause at issue in Begay, suggest that Congress actually intended for
these listed examples to be merely illustrative rather than limiting.
Furthermore, Tolbert is able to distinguish a chair from a water pitcher only by
their relative “heft.” Both objects are not inherently dangerous but can be wielded as
blunt impact weapons. In essence, he is arguing that the defining characteristics of a
blunt impact weapon are only its size and weight. While most chairs are indeed likely
to be more substantial than a plastic water pitcher, chairs are made in many different
designs out of many different materials. Some chairs are likely less “hefty” than the
water pitcher used in this case. More importantly, limiting the consideration of the
dangerousness of a blunt impact weapon solely to its size and weight ignores other
important characteristics of the object—such as its shape, hardness, and toughness—that
contribute to its potential to cause serious bodily injury. Tolbert’s attempt to limit the
class of objects similar enough to a chair solely by their “heft” is not justified by the
statutory language.
Other circuits have declined to adopt this restrictive interpretation—i.e, one
limited by the listed examples—of the definition of what constitutes a dangerous weapon
under the aggravated assault Guidelines provision. They have adopted a more functional
approach that examines how the particular object was used under the circumstances. See
United States v. Perry, 284 F. App’x 56, 57 (4th Cir. 2008) (holding that a hard plastic
food tray, while not inherently dangerous, “was clearly capable of, and did, inflict
serious injury” when thrown by an inmate at a correctional officer); United States v.
Serrata, 425 F.3d 886, 910 (10th Cir. 2005) (“[I]n the proper circumstances, almost
anything can count as a dangerous weapon, including walking sticks, leather straps,
rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and stink
bombs.”) (citations and internal quotation marks omitted); United States v. Matthews,
106 F.3d 1092, 1095 (2nd Cir. 1997) (finding that it is settled law in the Second Circuit
and other circuits that almost any object can be a dangerous weapon depending on how
it is wielded in the circumstances).

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The district court correctly applied this kind of functional analysis, looking at the
circumstances in which the water pitcher was used, when it ruled on Tolbert’s objection.
Contrary to Tolbert’s assertions, it was not mere conjecture for the district court to
conclude, based on evidence of the characteristics of the water pitcher—including its
hardness, size, shape, and weight, the circumstances in which it was used (to strike
someone in the head), and common experience, that this object was capable of inflicting
serious bodily harm, even though no such harm actually resulted. The district court did
not clearly err in concluding that the water pitcher constituted a dangerous weapon under
these circumstances and that Tolbert’s use of the pitcher to strike Thompson in the head
provided sufficient evidence of his intent to inflict bodily injury. The application of the
four-level enhancement for use of a dangerous weapon was therefore justified.
After applying this four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B),
the district court ultimately sentenced Tolbert to a thirty-seven month term of
imprisonment. Tolbert argues that this sentence was impermissibly based on his
rehabilitative needs, which makes his sentence substantively unreasonable. See Tapia
v. United States, 131 S.Ct. 2382, 2393 (2011) (holding that a court may not impose a
sentence for rehabilitative purposes); United States v. Webb, 403 F.3d 373, 385 (6th Cir.
2005) (holding that a sentence may be substantively unreasonable if it is based on
impermissible factors). While the district court did allude to Tolbert’s mental health
issues and conclude that he would benefit from treatment, we find that the district court
did not impermissibly impose or lengthen Tolbert’s sentence to enable him to complete
a treatment program or promote his rehabilitation. The district court here failed to make
the kind of statements that were made by the district court in Tapia, which suggested that
it “may have calculated the length of [the] sentence to ensure that [the defendant] receive
certain rehabilitative services.” 131 S. Ct. at 2392–93 (finding that district court in Tapia
stated that the “number one” thing was the need to provide treatment and have a sentence
of sufficient length for the defendant to complete a 500-hour drug treatment program).
Rather, the district court here appears to have selected a within-Guidelines sentence
primarily due to the seriousness of the crime, the need for deterrence, and the need to
protect the public.

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III.
For the reasons provided above, we affirm the sentence imposed by the district
court. The district court correctly interpreted the Sentencing Guidelines when it
considered the characteristics of the object and the circumstances in which it was used
to determine whether it was a dangerous weapon. Further, it did not commit clear error
in concluding that the plastic water pitcher at issue was capable of inflicting serious
bodily injury. Finally, Tolbert’s sentence was substantively reasonable.