Sam

MEMORANDUM *

Sam appeals his 41-month sentence resulting from his conviction of two counts of *850 assault on a federal officer. The government appeals the sentencing judge’s decision not to apply the official victim enhancement pursuant to U.S.S.G. § 3A1.2.

The district court did not commit impermissible double counting. Double counting is authorized when it is “possible to be sentenced under a particular offense guideline without having engaged in” the behavior used to enhance the offense level. 1 The Guidelines section in this case, § 2A2.2, is applicable for assaults with and without a dangerous weapon. 2 Because it was not “impossible” 3 to come within the aggravated assault guideline without a dangerous weapon, 4 using the dangerous weapon to both determine the offense level and apply the enhancement was not double counting under controlling circuit precedent. If the district court concludes on resentencing that the use of the pick-up truck was in fact the only reason for both enhancements, then it can take that into account under Booker when fashioning a reasonable sentence.

Counts can be grouped under U.S.S.G. § 3D1.2(a) only when they “involve the same victim.” 6 Sam…