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U.S. v. Armstrong, No. 09-30395 (8-31-10) (Berzon with Canby and Noonan). Can one adjust for hate? Yes, under the Guidelines. This appeal arose from a conviction for a racially motivated assault. Three men viciously beat an African-American simply because he was African-American. The defendant here was not the first one to assault the victim, but participated in the planning (taking place in a Wal-Mart grocery section in Idaho). After the other co-defendant had tackled and started to beat the victim, the defendant joined in. Was it proper to assess the defendant an adjustment under 3A1.1(a) for a racially motivated attack when another defendant selected the victim, started the fight, and the defendant was a Johnny-come-lately? Sure, concluded the 9th, because the adjustment was designed to prevent such attacks. The court did not have to make separate findings that the defendant had selected the specific victim before the attack; the fact was that race motivated the defendant. Moreover, the court also properly assessed an adjustment for obstruction of justice because the defendant testified that race was not a motivation, and that he did not use racially motivated slurs. the evidence at trial was to the contrary, and the court made findings that all the requirements of perjury had been met.

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