United States v. Campus

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 4, 2025
• Docket: 24-5068
• Status: Published

Opinion

Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH August 4, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-5068

DAKOTA WAYNE CAMPUS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00064-JFH-1) _________________________________

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the briefs), Denver, Colorado, for Defendant-Appellant.

George Jiang, Assistant U.S. Attorney (Clinton J. Johnson, U.S. Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee. _________________________________

Before McHUGH, EID, and FEDERICO, Circuit Judges. _________________________________

FEDERICO, Circuit Judge. _________________________________

On February 4, 2022, the Tulsa Police Department responded to

multiple calls from concerned neighbors about the welfare of M.D., Dakota

Wayne Campus’s pregnant fiancée, regarding a violent domestic dispute Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 2

occurring in M.D.’s apartment. M.D. attempted to flee and run to a

neighbor’s apartment for help. Campus, however, ran after M.D., pointed a

firearm at her head, and physically dragged her back to her apartment.

Once inside, Campus threw her to the ground and strangled her. When the

police arrived, Campus fled the scene by jumping out the window of M.D.’s

two-story apartment. He was apprehended seven days later.

A jury found Campus guilty of several crimes for assaulting and

attempting to strangle his pregnant fiancée in Indian Country. Campus

does not appeal his convictions, but he challenges the 240-month sentence

he received. He argues that the district court improperly calculated the

sentencing range under the United States Sentencing Guidelines

(Guidelines) because § 3A1.3’s adjustment for restraint of a victim should

not have been applied against him because he received a different

enhancement for conduct that inherently involves a degree of restraint.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Campus was charged by indictment with: (1) assault of an

intimate/dating partner by strangling and attempting to strangle in Indian

Country, in violation of 18 U.S.C. §§ 1151, 1152, and 113(a)(8); (2) assault

with a dangerous weapon with intent to do bodily harm in Indian Country,

in violation of 18 U.S.C. §§ 1151, 1152, and 113(a)(3); (3) carrying, using,

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and brandishing a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (4) possession of a firearm and

ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The victim, M.D., testified at trial that Campus had been physically

abusive and strangled her both on February 3 and 4, 2022, because Campus

believed M.D. was cheating on him, and M.D. wanted to discuss the idea of

putting the baby up for adoption. M.D. testified that on February 4, Campus

assaulted her and threw her mobile phone, wallet, and shoes out the window

of her second-story apartment and into the snow. M.D. testified that she

then ran into the hallway, went to her neighbor’s door across the hall, and

tried to knock for help. According to M.D., Campus pursued her with a gun,

pointed it at her face, and then dragged her back into the apartment by the

hood of her sweatshirt. The jury heard, inter alia, the audio recordings of

911 calls made by two concerned neighbors regarding the domestic abuse,

along with the testimony of the responding officers and medical staff who

treated M.D. At trial, Campus testified in his defense, maintaining his

innocence.

On November 16, 2022, the jury found Campus guilty of all counts

charged. Prior to sentencing, the Government filed objections to the

Presentence Investigation Report (PSR). It argued that Campus’s conduct

warranted additional upward adjustments under the Guidelines for:

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(1) obstruction of justice under § 3C1.1; (2) restraint of victim under

§ 3A1.3; and (3) assault of a vulnerable victim under § 3A1.1(b)(1).

As pertinent to this appeal,1 Campus argued the application of

§ 3A1.3’s two-level adjustment was erroneous because (1) M.D. was not

subject to forcible restraint “such as by being tied, bound, or locked up” and

(2) that application of the adjustment would constitute impermissible

double counting because unlawful restraint of a victim is an element of

Count One. R. I at 375–77. The PSR was revised on May 14, 2024, to include

the § 3A1.3 two-level adjustment:

Victim Related Adjustment: The victim was physically restrained during the course of the offense; therefore, two levels are added. USSG § 3A1.3. Specifically, the defendant held the victim at gun point and forced her back into her apartment.

R. II at 45. The relevant offense conduct in the PSR included:

On February 4, 2022, [M.D.] attempted to speak with Campus about her pregnancy. He became angry and began yelling at her. Campus then threw her phone out the window. At that point, M.D. attempted to go to the neighbor’s apartment for help. However, Campus chased her into the hallway with his gun and then dragged her back into her apartment. After closing the

1 Campus does not argue on appeal that there was insufficient evidence to convict him or that the application of other sentence adjustments or enhancements was erroneous. Campus also does not contest that M.D. is a member of the Cherokee Nation or that the February 4 incident occurred in Indian Country within the Northern District of Oklahoma. See 18 U.S.C. § 1152; United States v. Simpkins, 90 F.4th 1312, 1314 (10th Cir. 2024) (“[18 U.S.C. § 1152] extends the general laws of the United States to Indian [C]ountry, yet it applies only if either the victim or the defendant—but not both—is an Indian.”).

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door, he threw her to the ground, broke her glasses, put the gun in her face and told her he was going to shoot her and then shoot the police. M.D. reported that while she was being strangled, she could not breathe or scream. She indicated that Campus finally let her get up, at which time she went to the bathroom. He followed her into the bathroom and kept “getting in her face” because she was crying. Campus then punched her in the left side of her face as officers started knocking. He told her to shut up and not report that he was in the apartment.

Id. at 43.

The § 3A1.3 adjustment increased the offense level of the applicable

Guidelines by two levels, which resulted in an advisory sentencing range of

110 to 137 months for Counts One, Two, and Four (which grouped together).

Without the two levels added by § 3A1.3, the advisory sentencing range for

these three grouped counts would have been 92 to 115 months’

imprisonment.

On May 24, 2024, the district court overruled Campus’s objections to

the PSR and sentenced Campus to 120 months as to each of Counts One,

Two, and Four, to run concurrently, and 84 months as to Count Three, to

run consecutively to the other counts. Campus timely appealed.

II

Campus argues that the district court erred in applying the two-level

adjustment under United States Sentencing Guidelines § 3A1.3 for

restraint of a victim because (1) the physical restraint adjustment is

categorically inapplicable where the defendant has already received an

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offense-guideline enhancement (here, aggravated assault) that inherently

requires restraint of a victim, and (2) the strangulation adjustment under

§ 2A2.2(b)(4) inherently requires restraint of a victim therefore § 3A1.3

cannot be simultaneously applied.

A

The question before us is whether the district court applied a two-

level adjustment under § 3A1.3 erroneously. The Government has satisfied

its burden of “proving factors enhancing a sentence by a preponderance of

the evidence.” United States v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997).

Campus challenges the application of a sentence adjustment; thus, he

challenges the procedural reasonableness of the sentence. United States v.

Zamora, 97 F.4th 1202, 1207 (10th Cir. 2024).

“When evaluating the district court’s interpretation and application

of the Sentencing Guidelines, we review legal questions de novo and factual

findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Mollner, 643 F.3d

713, 714 (10th Cir. 2011) (quoting United States v. Munoz-Tello, 531 F.3d

1174, 1181 (10th Cir. 2008)). Here, we review the interpretation of the

Sentencing Guidelines de novo. United States v. Joe, 696 F.3d 1066, 1069

(10th Cir. 2012).

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B

Under § 3A1.3, a two-level adjustment is permissible “[i]f a victim was

physically restrained in the course of the offense.” U.S. Sent’g Guidelines

Manual § 3A1.3 (U.S. Sent’g Comm’n 2024). The term “physically

restrained” is defined in § 1B1.1’s application note as “the forcible restraint

of the victim such as by being tied, bound, or locked up.” Id. § 1B1.1, cmt.

n.1(L); see United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)

(finding that the victim was physically restrained within the meaning of

§ 3A1.3 when two defendants chased and tackled the victim to prevent his

escape).

The list of actions in the definition is not exhaustive, and we have

held that the phrase “such as” makes it “apparent that being tied, bound,

or locked up are listed by way of example rather than limitation.” United

States v. Roberts, 898 F.2d 1465, 1470 (10th Cir. 1990) (citation and internal

quotation marks omitted) (“We have no difficulty in concluding that a victim

who is held around the neck at knifepoint is denied freedom of movement

so as to be physically restrained.”). Moreover, the restraint may be brief.

Indeed, we have concluded that “the Commission intended ‘restraint’ to

mean the defendant’s conduct must hold the victim back from some action,

procedure, or course, prevent the victim from doing something, or otherwise

keep the victim within bounds or under control.” Checora, 175 F.3d at 791.

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In challenging the application of the § 3A1.3 adjustment, Campus

narrows the scope of his relevant conduct to just the strangulation of M.D.

(i.e., the offense of conviction in Count One) and argues that the inclusion

of any conduct beyond the strangulation would result in unlawful double

counting. Conversely, the Government concedes that restraint is inherent

within strangulation but argues that the adjustment under § 3A1.3 applies

because Campus forced the victim back into the apartment at gunpoint (i.e.,

that we should examine the totality of Campus’s relevant conduct beyond

just the offense of conviction).

Impermissible double counting occurs when “the same conduct on the

part of the defendant is used to support separate increases under separate

enhancement provisions which necessarily overlap, are indistinct, and

serve identical purposes.” United States v. Reyes Pena, 216 F.3d 1204, 1209

(10th Cir. 2000) (citation and internal quotation marks omitted). The

Guidelines explain that “relevant conduct” is “all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant” and “that occurred during the

commission of the offense of conviction, in preparation for that offense, or

in the course of attempting to avoid detection or responsibility for that

offense.” U.S. Sent’g Guidelines Manual § 1B1.3(a)(1). We have recognized

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that the definition of “relevant conduct” covers “a broad range of activities.”

United States v. Damato, 672 F.3d 832, 840 (10th Cir. 2012).

Key to Campus’s argument, the § 3A1.3 physical restraint application

note instructs:

Do not apply this adjustment where the offense guideline specifically incorporates this factor, or where the unlawful restraint of a victim is an element of the offense itself (e.g., this adjustment does not apply to offenses covered by § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint)).

Id. § 3A1.3, cmt. n.2. However, if “the restraint was sufficiently egregious,

an upward departure may be warranted.” Id. § 3A1.3, cmt. n.3 (citing id.

§ 5K2.4).

Campus chiefly relies upon United States v. Joe to argue that his

conviction for strangulation of M.D. precluded the two-level adjustment

under § 3A1.3 because strangulation inherently involves restraint of the

victim. In Joe, the two defendants pleaded guilty to a single charge of

aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1). 696 F.3d at

1068. We held in Joe that physical restraint of the victim was an element of

the crime of aggravated sexual abuse; therefore, the district court erred by

applying both the adjustment for physical restraint as well as the

enhancement for use of force against the victim. 696 F.3d at 1072.

Nevertheless, Joe does not dictate the outcome here. In Joe, the

physical restraint of the victim was an element of the charged offense, but

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that is not why this adjustment applied in this case. Campus was charged

with four counts – with Counts One, Two, and Four grouped together under

the Guidelines. The relevant conduct in the PSR that triggered the two-

level adjustment under § 3A1.3 was (1) holding M.D. at gunpoint and

(2) forcibly dragging her back into the apartment. This conduct is separate

from the strangulation charged in Count One. As such, Campus fails to

convince us that Joe forecloses a sentencing court from considering separate

yet relevant conduct (i.e., preparatory or post) other than the charged

offense.

Rather, we find guidance in United States v. Holbert, 285 F.3d 1257

(10th Cir. 2002), which addressed the totality of the defendant’s relevant

conduct to determine whether an adjustment under § 3A1.3 was applicable.

The defendant in Holbert was charged with two counts of possession of a

firearm following a misdemeanor conviction for domestic violence, in

violation of 18 U.S.C. § 922(g)(9). 285 F.3d at 1258. The first count related

to an event in August 1999 where the defendant “entered the home of his

estranged wife, locked her in a bedroom, and threatened her with a

firearm.” Id. The second count covered the possession of a firearm at the

time of the defendant’s arrest in September 1999. The defendant entered a

plea of guilty to the second count only. We held that “for the purpose of

applying § 3A1.3, the defendant must have physically restrained a victim

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in the course of the offense, and that the course of the offense2 includes any

conduct for which the defendant is accountable under § 1B1.3 (Relevant

Conduct).” Id. at 1262–63. In that case, the “relevant conduct” included the

events in August that were charged in the first count but dismissed

pursuant to a plea agreement.

Holbert evinces that all relevant conduct must be considered when

determining whether the § 3A1.3 physical restraint adjustment applies.

Unlike in Joe, there is relevant conduct of physical restraint by Campus

that is beyond the strangulation (again, an element of the offense of

conviction in Joe) that triggered the application of the additional two levels

under § 3A1.3 of the Guidelines.3

2 Recall that § 1B1.3 includes all acts and omissions that occurred

during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

3 The concurrence engages in a different analysis to reach the same

conclusion. However, even if the concurrence’s approach is analytically sound (which we do not comment on whether it is or is not), it also engages in reasoning that was not argued or presented by the parties in this case. For example, neither party mentioned United States v. Coldren, 359 F.3d 1253, 1257 (10th Cir. 2004), a case the concurrence discusses in depth. Although we have discretion to affirm on any ground supported by the record, “we have been—as a matter of basic fairness—‘guided’ by whether the parties have ‘fully briefed and argued’ the alternative ground” for affirmance. United States v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir. 2020) (internal citations omitted).

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We also recently revisited the definition of physical restraint and

determined that its meaning, under § 3A1.3, does not rely on the

“magnitude and duration” of the restraint to determine if it triggers the

adjustment. United States v. Walker, 74 F.4th 1163, 1196–97 (10th Cir.

2023), cert. denied, 144 S. Ct. 611 (2024), and cert. denied sub nom. Morrison

v. United States, 144 S. Ct. 1079 (2024). “[W]e have determined a victim

was physically restrained when the victim was being kept within bounds or

under control.” Id. at 1197 (citation and internal quotation marks omitted);

see also United States v. Fisher, 132 F.3d 1327, 1329–30 (10th Cir. 1997)

(“Physical restraint is not limited to physical touching of the victim.”);

United States v. Miera, 539 F.3d 1232, 1234 (10th Cir. 2008) (“Rather,

physical restraint occurs whenever a victim is specifically prevented at

gunpoint from moving, thereby facilitating the crime. Keeping someone

from doing something is inherent within the concept of restraint.” (citation

omitted)).

Thus, in Walker, we determined that the defendants’ actions of

holding down and forcing a child to consume food and choke triggered the

two-level adjustment under § 3A1.3. 74 F.4th at 1197; see also United States

v. Ivory, 532 F.3d 1095, 1106–07 (10th Cir. 2008) (finding that defendant

physically restrained the victim for purposes of § 3A1.3 when he drove a

stolen vehicle to the victim’s place of work, rammed the stolen vehicle into

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the front of the victim’s van as she was leaving work, and shot at her

through her windshield as she tried to back up). Under Holbert and Walker,

Campus is subject to the adjustment under § 3A1.3 because, during the

offense, he pursued M.D. when she attempted to flee the apartment, pointed

a firearm at her head, and then physically dragged her back into the

apartment before strangling her.

Indeed, this interpretation of § 3A1.3 also comports with several cases

decided in sister circuits, upholding sentencing courts that applied the two-

level adjustment for the physical restraint of a victim for a defendant’s

actions beyond the offense of conviction but in the course of the offense. See

United States v. Old Chief, 571 F.3d 898, 901 (9th Cir. 2009) (“Here, [the]

restraint of the victim was an act that added to the basic crime. Even if a

stabbing necessarily involves some minimal level of restraint[.]”); Arcoren

v. United States, 929 F.2d 1235, 1246 (8th Cir. 1991) (affirming the

adjustment under § 3A1.3 because the victim was repeatedly grabbed,

pushed, and prevented from leaving the bedroom on numerous occasions);

United States v. Smith-Hodges, 527 F. App’x 354, 356 (6th Cir. 2013) (“In

both cases, the victim was forced at gunpoint to move to a different, more

vulnerable position and maintain it until the defendant could complete the

robbery . . . such acts taken together are sufficient to trigger the

enhancement.”); but see United States v. Mikalajunas, 936 F.2d 153, 156

13 Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 14

(4th Cir. 1991) (“An upward adjustment for restraint is to be made in the

context of an act which adds to the basic crime.” (emphasis added)).

We conclude that Campus physically restrained M.D. by dragging her

back to the apartment at gunpoint and then strangling her afterward.

Accordingly, the district court correctly applied the two-level adjustment

under § 3A1.3 to the total offense level.

Finally, Campus makes a related argument that the district court

erred in imposing an additional adjustment under § 3A1.3 because he had

already received a three-level enhancement for strangulation under

§ 2A2.2(b)(4). Section 2A2.2(b)(4) of the Sentencing Guidelines provides

that, “[i]f the offense involved strangling, suffocating, or attempting to

strangle or suffocate a spouse, intimate partner, or dating partner, increase

by 3 levels.” U.S. Sent’g Guidelines Manual § 2A2.2(b)(4). Again, because

the sentencing court may review the relevant conduct during the course of

the offense, which includes any conduct for which the defendant is

accountable under § 1B1.3, the district court correctly concluded that the

three-level enhancement under § 2A2.2(b)(4) applied to the offense of

conviction and the two-level adjustment under § 3A1.3 applied to the

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restraint used by Campus during the course of conduct. Holbert, 285 F.3d

at 1262–63.

AFFIRMED.

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No. 24-5068, United States v. Campus EID, J., concurring in the judgment only.

I agree with the majority that we should affirm the district court’s decision to

apply both the three-level enhancement under U.S.S.G. § 2A2.2(b)(4) and the two-

level adjustment under U.S.S.G. § 3A1.3 in this case. But my analysis differs.

The issue is whether Application Note 2 to U.S.S.G. § 3A1.3 forbids applying

§ 3A1.3’s adjustment. U.S.S.G. § 3A1.3 provides for a two-level adjustment “[i]f a

victim was physically restrained in the course of the offense.” But Application Note

2 caveats, in relevant part, “Do not apply this adjustment where the offense guideline

specifically incorporates this factor . . . .” U.S.S.G. § 3A1.3, cmt. n.2. This provides

an “alternative principle” of “double counting.” United States v. Joe, 696 F.3d 1066,

1070 (10th Cir. 2012). Campus argues § 2A2.2(b)(4) “specifically incorporates” the

physical restraint of the victim, “because § 2A2.2(b)(4) already punished him for

conduct that inherently involves physical restraint.” Aplt. Br. at 8–9.

As I understand it, the majority opinion holds an offense guideline provision

does not “specifically incorporate” the physical restraint of the victim if, as here,

there is distinct conduct that independently supports applying both that provision and

§ 3A1.3. See Maj. Op. 8–15. I am not sure that this is consistent with our precedent

or Note 2’s text, and therefore I would avoid resolving this case on this basis.

I would instead hold that § 2A2.2(b)(4) does not “specifically incorporate”

§ 3A1.3’s physical-restraint-of-the-victim factor because it is possible to trigger

§ 2A2.2(b)(4) without physically restraining the victim. Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 17

I.

Precedent—both ours and other circuits’—indicates that an offense guideline

provision does not “specifically incorporate” the physical restraint of the victim if it

is possible to trigger that offense guideline through conduct that does not necessarily

entail physical restraint.

In United States v. Joe, we “adapt[ed] the Coldren approach” to govern “how

to analyze the specific incorporation issue” in Application Note 2. 696 F.3d at 1071.

In this context, this approach asks “whether the offense conduct specifically

addressed whether the victim was physically restrained.” Id. (emphasis deleted).1

The “Coldren approach” comes from United States v. Coldren, 359 F.3d 1253

(10th Cir. 2004), where we considered the same “specifically incorporates” language

in Application Note 2 to U.S.S.G. § 3A1.2’s official-victim adjustment. The district

court applied both a four-level enhancement under then-U.S.S.G. § 2K2.1(b)(5) for

using a rifle in connection with another felony and the three-level adjustment under

§ 3A1.2 for assaulting a police officer. Both increases were based on the fact that the

defendant pointed a rifle at a police officer. The defendant argued the district court

was wrong to apply both increases.

We held “§ 2K2.1(b)(5) does not ‘specifically incorporate’ the fact that the

defendant assaulted a police officer.” Id. at 1257. We based that conclusion on how

1 Joe extensively discussed the “specific incorporation” issue, but it ultimately held that Application Note 2 blocked § 3A1.3’s application because physical restraint was “an element of the offense” charged. Id. at 1072. That is a separate and distinct way for Note 2 to negate § 3A1.3’s application, see id. at 1070, not at issue here. 2 Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 18

§ 2K2.1(b)(5) applied in the abstract. We noted, § 2K2.1(b)(5) “does not specifically

refer to either the commission of an assault or an official victim.” Id. And, as such,

§ 2K2.1(b)(5) could apply, and “the fact that the person [a defendant] assaulted was a

police officer . . . would not have been factored into [the] sentence at all.” Id.

Like Coldren suggests, other circuits have held that an offense guideline

provision does not activate § 3A1.3’s Application Note 2 when that provision, in the

abstract, does not necessitate a finding of “physical restraint” within the meaning of

§ 3A1.3. See, e.g., Arcoren v. United States, 929 F.2d 1235, 1248 (8th Cir. 1991)

(holding application of U.S.S.G. § 2A3.1(b) did not preclude application of § 3A1.3

because § 2A3.1(b) “does not necessarily include the physical restraint that [§] 3A1.3

covers”); United States v. Tholl, 895 F.2d 1178, 1185 (7th Cir. 1990) (holding

application of U.S.S.G. § 2J1.4(b)(1) did not preclude application of § 3A1.3 because

“an arrest, as that term is used in [§] 2J1.4(b)(1), does not necessarily entail the sort

of forcible physical restraint contemplated by” § 3A1.3); United States v. Stokley,

881 F.2d 114, 116 (4th Cir. 1989) (holding application of U.S.S.G. § 2K1.4(b) “did

not foreclose consideration of [§ 3A1.3’s] adjustment since [ ] § 2K1.4(b) does not

require a finding of physical restraint”);2 United States v. McCoy, 480 F. App’x 366,

373 (6th Cir. 2012) (holding application of U.S.S.G. § 2H1.1(b)(1)(B)’s “under color

2 Before November 1991, Application Note 2 provided, in relevant part, that § 3A1.3 does not apply if physical restraint is “specifically incorporated into the base offense level, or listed as a specific offense characteristic.” U.S.S.G. App. C, at amend. 413. The 1991 amendment was not a substantive edit; it merely “clarifie[d] the application of this guideline.” Id. 3 Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 19

of law” enhancement did not preclude application of § 3A1.3 because “[a]n offense

committed under color of law does not necessarily include physical restraint”).

II.

It is possible to trigger U.S.S.G. § 2A2.2(b)(4) without physically restraining

the victim. U.S.S.G. § 2A2.2(b)(4) applies where an assault “involved strangling,

suffocating, or attempting to strangle or suffocate a spouse, intimate partner, or

dating partner.” See also U.S.S.G. § 2A2.2, cmt. n.1. This does not invariably require

a finding of physical restraint.

For example, one can commit an assault involving “attempting to strangle” an

intimate partner without physically restraining his partner.3 An assault through an

attempt to strangle “may be completed without a battery,” that is, without a person

ever “mak[ing] contact with the victim’s throat or neck.” United States v. Stricker, 4

F.4th 624, 628 (8th Cir. 2021). Indeed, an assault via an attempt to strangle—as is

the case with all “assault[s] of the attempted-battery sort”—may be completed even

3 Section 2A2.2(b)(4) applied here because Campus actually strangled M.D. Campus focuses only on completed strangulations, arguing “assault by strangulation necessarily involves physical restraint.” Aplt. Br. at 9–10. I do not see why Note 2 would require a focus only on the type of conduct that triggered the offense guideline provision, or (as such a reading would manifest here) on just one-third of the offense guideline provision. Note 2 speaks just of “the offense guideline,” generally. And, if Campus were correct, § 3A1.3’s adjustment would not apply if a defendant actually strangled his partner, but it would if a defendant only attempted to strangle his partner. Yet, the Guidelines treat completed and attempted strangulations as equally reprehensible. Reading Note 2 to bar consideration of parts of § 2A2.2(b)(4) would thus “contravene a fundamental principle of the Guidelines”—“proportionality in sentencing.” See United States v. Wilson, 17 F.4th 994, 1003 (10th Cir. 2021) (cleaned up). 4 Appellate Case: 24-5068 Document: 69-1 Date Filed: 08/04/2025 Page: 20

“though the victim is unaware of his danger.” 2 Wayne R. LaFave, Substantive

Criminal Law § 16.3(a) (3d ed. 2024). An assault by attempt to strangle thus can be

completed where a person comes close to strangling his partner “who is asleep,” or

who “is facing north” as the person approaches “from the south.” See id. These

hypotheticals4 do not necessarily involve “keep[ing] the victim within bounds or

under control” through “physical force or another form of compulsion.” United

States v. Checora, 175 F.3d 782, 790–91 (10th Cir. 1999).

III.

For these reasons, I respectfully concur only in the judgment.

4 Joe rejected some hypotheticals as “very unrealistic.” 696 F.3d at 1072. But again, Joe was an “is an element” holding. Id. And, in any event, that these sort of hypotheticals were worthy of space in a leading treatise’s discussion of assault shows that they are not prohibitively unrealistic. 5