United States v. Lucas Denney

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2024 Decided April 12, 2024

No. 22-3084

UNITED STATES OF AMERICA,

APPELLEE

v.

LUCAS DENNEY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cr-00070-1)

William L. Shipley argued the cause and filed the briefs for

appellant.

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Chrisellen R.

Kolb and Nicholas P. Coleman, Assistant U.S. Attorneys.

Before: MILLETT, KATSAS and CHILDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge CHILDS.

CHILDS, Circuit Judge: Under the Electoral Count Act, 3

U.S.C. § 15(a), the United States Congress meets and certifies

the results of a prior year’s presidential election on the sixth

2

day of January. On January 6, 2021, during the certification of

the 2020 presidential election results, a mob unlawfully entered

the United States Capitol, causing substantial damage to the

building and the suspension of the certification proceeding.1

Based on his participation in this riotous incident at the Capitol,

Lucas Denney was arrested and indicted for violating 18 U.S.C.

§ 111(a)(1) and (b), which prohibit an assault on a federal

officer with a dangerous weapon while he is engaged in his

official duties. Denney pleaded guilty, and the district court

imposed a non-guidelines sentence of fifty-two months in the

Bureau of Prisons. In calculating Denney’s sentence, the

district court applied (1) a two-level enhancement for “more

than minimal planning” under the United States Sentencing

Guidelines (“Guidelines” or “USSG”) § 2A2.2(b)(1); and (2) a

four-level enhancement for use of “a dangerous weapon” under

USSG § 2A2.2(b)(2). On appeal, Denney challenges the

district court’s application of these enhancements.2 We affirm

the district court because the record supports the

enhancements.

I.

A.

Denney is a former United States Army specialist (E-4)

and an Iraq War veteran with combat training. In December

1

Denney and the Government stipulated to the facts of the incident

giving rise to this case. See United States v. Denney, No. 22-CR-070

(D.D.C. Aug. 19, 2022), ECF No. 60-1.

2

Denney does not challenge the substantive reasonableness of his

sentence, which “is the catch-all criterion under which the reviewing

court monitors (deferentially—for abuse of discretion) whether the

district court has given reasonable weight to all the factors required

to be considered.” United States v. Russell, 600 F.3d 631, 633 (D.C.

Cir. 2010).

3

2020, Denney was serving as the President of a Texas-based

militia called the Patriot Boys of North Texas. As President,

Denney actively communicated with the Proud Boys, a militant

organization, and acknowledged a shared mission to counter

ANTIFA, Black Lives Matter, and other organizations Denney

labeled “communist radical groups.” On December 19, 2020,

President Trump issued a public announcement regarding a big

protest in D.C. on January 6—which Denney interpreted as a

call to arms. See, e.g., United States v. Denney, No. 22-CR-

070 (D.D.C. Aug. 19, 2022), ECF No. 60-1 (Statement of

Offense) at 7 ¶ 19 (“The rally on the 6th is going to be historic

I promise you that. If you know anyone like us that can go and

that will actually fight, then we could use them”); William M.

Arkin, Ecstatic Donald Trump Fans Retweeted His Call for

‘Wild’ Protests, NEWSWEEK.COM (Dec. 19, 2021),

https://www.newsweek.com/ecstatic-donald-trump-fans-

retweeted-his-call-wild-protests-1658193. As a result, Denney

began recruiting others to join him in D.C., procuring funding

to cover travel and housing costs, and purchasing helmets,

pepper spray, protective vests, other equipment, and supplies.

A few days before the riot, on January 4, 2021, Denney shared

with a colleague that he believed the Capitol Police had joined

forces with ANTIFA—and to Denney, this meant “civil war”

and World War 3 were on the horizon. Statement of Offense

at 15 ¶ 47.

B.

In the early morning of January 6, 2021, Denney and

others fought members of ANTIFA and Black Lives Matter.

Later, at about 1:30 p.m., Denney entered restricted Capitol

grounds and began aggressively approaching police officers—

repeatedly yelling and pulling on the metal barricades

protecting the Capitol. Denney’s interaction with Capitol

Police officers continued when he extended “a small object”

4

towards them, threw a “small cannister” at them, and engaged

in a “tug-of-war” in an effort to take a police baton. Statement

of Offense at 17 ¶¶ 54, 56, 57.

Around 2:23 p.m., D.C. Metropolitan Police Sergeant

K.K. (“Sgt. K.K.”) was positioned on an elevated structure

between the crowd and the west side of the Capitol.

Individuals below began throwing debris at the officers, and

Sgt. K.K. used crowd-control spray in response. Denney

attempted to grab the cannister from Sgt. K.K., who again

deployed the spray. Denney retreated and returned with a

polyvinyl chloride (“PVC”) pole, which he swung at Sgt.

K.K.—missing Sgt. K.K., but striking a photojournalist. Other

officers and Sgt. K.K. unsuccessfully attempted to disarm

Denney. Less than a minute later, “Denney and another rioter

grabbed a large tube and together they launched it towards the

location where Sgt. K.K. had been [previously] positioned.”

Statement of Offense at 18 ¶ 60.

Denney’s assaultive behavior continued throughout the

afternoon. After forcing himself into a tunnel connecting parts

of the Capitol, Denney and another rioter shoved a riot shield

into a line of officers attempting to hold off the rioters.

Minutes later, he appeared to direct several other rioters toward

an isolated officer whom other rioters then surrounded and

pulled out of the tunnel.

On December 13, 2021, Denney was arrested on a criminal

complaint in Kinney County, Texas for his involvement in the

January 6th Capitol riot.

C.

Following arrest and indictment, Denney pleaded guilty

(without benefit of a plea agreement) to one count of

5

assaulting, resisting, or impeding certain officers using a

dangerous weapon in violation of 18 U.S.C. § 111(a)(1) and

(b). At sentencing, Denney disputed the application of 1) a

two-level enhancement for an assault involving “more than

minimal planning” under USSG § 2A2.2(b)(1); and 2) a four-

level enhancement for using “a dangerous weapon” under

USSG § 2A2.2(b)(2). The district court found that both

enhancements applied but varied downward and sentenced

Denney to fifty-two months of imprisonment. The district

court entered judgment on October 14, 2022, and Denney filed

his notice of appeal on October 31, 2022.

II.

The Federal Rules of Appellate Procedure require a notice

of appeal in a criminal case to be filed within fourteen days of

entry of the judgment being appealed. Fed. R. App. P.

4(b)(1)(A)(i). The filing date of Denney’s notice of appeal falls

outside this period. Even so, Rule 4(b) is a claims-processing

rule that “is not jurisdictional,” adherence to which “may

therefore [be] forfeit[ed]” by the Government. United States v.

Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008) (citation

omitted); cf. Klayman v. Jud. Watch, Inc., 6 F.4th 1301, 1310

(D.C. Cir. 2021) (stating that the parallel time limit for civil

appeals in Rule 4(a) “is a claims-processing rule instead of a

jurisdictional rule”); Eberhart v. United States, 546 U.S. 12, 19

(2005) (“These claim-processing rules thus assure relief to a

party properly raising them, but . . . where the Government

failed to raise a defense of untimeliness . . . , it forfeited that

defense.”). Accordingly, we interpret the Government’s

statement that it opposes dismissal of Denney’s appeal as a

waiver of any untimeliness objection. See Appellee Br. at 2

n.2.

6

III.

We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). See In re Sealed Case, 449 F.3d 118, 121

(D.C. Cir. 2006) (“Although we agree that § 1291 provides

jurisdiction for us to hear Appellant’s challenge to his

conviction . . . § 1291 is not a sufficient basis to allow us to

consider challenges to a sentence[,] [f]or that, we look to 18

U.S.C. § 3742, which we have held is ‘the statute conferring

jurisdiction on the appellate courts to review sentences.’”

(citations omitted)). When evaluating a district court’s

application of the USSG, we review legal questions “de novo”;

accept factual findings unless clearly erroneous; and “‘give due

deference to the district court’s application of the [sentencing]

guidelines to facts,’” which “‘falls somewhere between de

novo and clearly erroneous.’” United States v. Bikundi, 926

F.3d 761, 796–97 (D.C. Cir. 2019) (citations omitted)

(emphasis in original); see also United States v. Mellen, 393

F.3d 175, 183 (D.C. Cir. 2004) (“[W]here as here the relevant

conduct issue involves not only a factual question, but ‘the

district court’s application of the guidelines to the facts,’ the

proper standard is due deference—one between clear error and

de novo review.” (citing 18 U.S.C. § 3742) (emphasis in

original)); United States v. Kim, 23 F.3d 513, 517 (D.C. Cir.

1994) (“Recognizing, then, that we must afford the district

judge’s determination due deference, we turn to the question

whether the crime can be thought to have involved more

planning than is typical.”).

A.

In objecting to the “more than minimal planning”

enhancement, Denney asserts that planning for January 6th was

not “for the purpose of preparing to assault federal law

enforcement at the Capitol – or anywhere else for that matter.”

7

Reply Br. 5. Rather, Denney claims the planning was for a

“political protest where the potential for violence – from

counter-protestors – could not be ruled out.” Appellant Br.

13 (emphasis in original). The district court permissibly

rejected that view of the evidence. The court’s conclusion that

Denney in fact engaged in more than minimal planning for

violent altercations with law enforcement officers was

supported by ample record evidence. We owe that conclusion

due deference. See Kim, 23 F.3d at 517.

The Guidelines apply a two-level enhancement where an

aggravated assault involved “more than minimal planning.”

USSG § 2A2.2(b)(1). An application note of the commentary

of § 2A2.2 defines “more than minimal planning” as “more

planning than is typical for commission of the offense in a

simple form.” USSG § 2A2.2 cmt. n.2.3 Based on the record,

we find no error in the district court’s finding that Denney’s

aggravated assault of Sgt. K.K. involved “more planning than

is typical for commission of” assault in simple form.

Denney observes that the D.C. Circuit lacks precedent

directly on-point in the context of aggravated assaults. But

attempting to demonstrate “a direct connection between the

planning” and the assault of Sgt. K.K. was necessary to trigger

the enhancement, Denney cites to the following opinions from

other circuits: Eleventh Circuit cases United States v. Simpson,

760 F. App’x 931 (11th Cir. Jan. 31, 2019), and United States

3

The commentary also provides the following examples: while

“luring [a] victim to a specific location or wearing a ski mask to

prevent identification would constitute more than minimal

planning,” simply “waiting to commit the offense when no witnesses

were present would not alone constitute more than minimal

planning.” USSG § 2A2.2 cmt. n.2.

8

v. Tapia,4 59 F.3d 1137 (11th Cir. 1995); a Tenth Circuit

decision United States v. Coombs, 823 F. App’x 613 (10th Cir.

2020); and the Fifth Circuit opinion United States v. Kanu-

Bradley, No. 21-20244, 2022 WL 1055179 (5th Cir. 2022).

Appellant Br. 15–18.

Denney points to various facts supporting application of

the planning enhancement in Coombs, Simpson, and Kanu-

Bradley that he argues are absent here. See Kanu-Bradley,

2022 WL 1055179, at *1 (bringing guns, discussing the plan,

and signaling the start of a robbery suggested more than

minimal planning); Coombs, 823 F. App’x at 618 (placing

oneself in the wrong restroom and breaking into an occupied

stall while concealing his face showed more than minimal

planning in an assault); Simpson, 760 F. App’x at 935 (planning

and continuous coordination of a robbery pointed to more than

minimal planning). But none of those cases adopted or applied

the tight nexus rule that Denney advances. They simply

affirmed application of the enhancement based on different

facts than we have here.

Tapia is the only case Denney cited in which the court

sustained an objection to the “more than minimal planning”

enhancement. In Tapia, the Eleventh Circuit found the

enhancement was inapplicable to an assault in a prison cell

because the assailant did not engage in repeated acts over some

time, act to have the victim placed in the cell, or conceal the

crime. Tapia, 59 F.3d at 1144. As the Eleventh Circuit

explained in a later unreported case, nothing in Tapia or the

“more than minimal planning” enhancement requires a

4

We note that Denney attributed quoted language from United States

v. Tapia to a Second Circuit decision identified as United States v.

Ray, while providing Tapia’s cite information. See Appellant Br.17–

18. United States v. Tapia is the correct case name for both the

citation and the quotation.

9

“‘sophisticated’ or ‘elaborate’ scheme,” only evidence of

planning, coordination, and concealment.” Simpson, 760 F.

App’x at 935.

Unlike Tapia, there is plentiful evidence of planning,

coordination, and concealment in this case. The district court

explained why Denney’s pre-January 6th activities—veiled

communications, cooperation with the Proud Boys, statement

of intention to march on the Capitol, procurement of helmets,

body protective gear, and pepper spray, and recruitment of

others to join his Patriot Boys of North Texas—establish “more

than minimal planning” in relation to the aggravated assault of

Sgt. K.K. See J.A. 34–42. While Denney contends his actions

related to “self-defense,” see J.A. 39 ll. 6–8, the record supports

the district court’s conclusion that these claims are

“implausible” because Denney “planned to commit…violence

on January 6”—i.e., “to fight”—to “tak[e] back the country”

and “ensure ‘Trump w[ould] stay President.’” Appellee Br. 21.

Denney was more than prepared to commit violence at the

Capitol on January 6th, even if he did not specifically plan to

assault Sgt. K.K. with the PVC pipe. As part of that extensive

planning, Denney was of the view that the Capitol Police

“ha[d] joined forces” with ANTIFA, and so Denney’s plans for

“[c]ivil war” included law enforcement from the outset.

Statement of Offense at 15 ¶ 47. As a result, even assuming

without deciding that the minimal-planning enhancement

requires the tight nexus between planning and the offense of

conviction, the record in this case directly ties Denney’s plans

to assaults on police officers.

In addition, during the assault itself, Denney engaged in

additional planning. After trying and failing to manually pull

the crowd-control-spray from Sgt. K.K.’s hands, Denney

looked around for an alternative approach and found a

weapon—the PVC pipe—and swung that at Sgt. K.K. When

10

that failed, Denney tried another tack: He joined with another

rioter and launched a large tube toward the place where Sgt.

K.K. had been standing. Regardless of whether that on-the-

scene planning would suffice to establish minimal planning,

the facts surrounding the assault itself undergird the district

court’s rejection of Denney’s suggestion that the entire incident

was spontaneous. Similarly, Denney’s continued assaultive

behavior toward law enforcement throughout the day

reinforces the district court’s conclusion that Denney planned

to violently confront and assault law enforcement.

In the end, we considered the record and afford the district

court’s findings due deference on the application of USSG §

2A2.2(b)(1). See Kim, 23 F.3d at 516–17 (applying due

deference to more-than-minimal-planning enhancement under

USSG § 1B1.1). We likewise accept the district court’s factual

findings as supported by the record and not clearly erroneous.

Id. Accordingly, we affirm the district court’s findings of

“more than minimal planning” and application of a two-level

enhancement.

B.

In objecting to the “dangerous weapon” enhancement,

Denney complains the district court lacked sufficient evidence

to support “an intent to do bodily harm” as required “to support

the additional +4 level enhancement for having used a

‘weapon[]’ or ‘otherwise dangerous instrument with intent to

do bodily injury.’” Appellant Br. 19–20. The Guidelines apply

a four-level enhancement when “a dangerous weapon

(including a firearm) was otherwise used”5 in the commission

5

“‘Otherwise used’ with reference to a dangerous weapon

(including a firearm) means that the conduct did not amount to the

discharge of a firearm but was more than brandishing, displaying, or

11

of an aggravated assault. USSG § 2A2.2(b)(2). The

commentary to section 2A2.2 then defines “dangerous

weapon” by reference to USSG § 1B1.1, Application Note 1,

and it further clarifies that the term “includes any instrument

that is not ordinarily used as a weapon,” such as a car, chair, or

an ice pick, “if such an instrument is involved in the offense

with the intent to commit bodily injury.” USSG § 2A2.2 cmt.

n.1; see also id. § 1B1.1 cmt. n.1(E) (defining “dangerous

weapon”). A “bodily injury” is “any significant injury”—i.e.,

a “painful and obvious” injury, or one where “medical attention

ordinarily would be sought.” Id. § 1B1.1 cmt. n.1(B).

“[W]hether an object qualifies as a dangerous weapon” is

“a question of fact,” United States v. Taoufik, 811 F. App’x

835, 840 (4th Cir. 2020), and such a factual finding is “affirmed

unless ‘clearly erroneous.’” Kim, 23 F.3d at 517. The district

court addressed this factual issue during the following colloquy

with Denney at his plea hearing:

THE COURT: So did you in fact assault, resist, oppose,

impede, intimidate or interfere with an

officer or employee of the United States

in the performance of that officer or

employee's official duties?

DENNEY: Yes, sir.

THE COURT: And did you do so forcibly?

DENNEY: Yes, sir.

THE COURT: And am I correct that based on what Mr.

Shipley said, my understanding is that

the way you did so was by swinging a

long pole of some type at a police

officer?

possessing a firearm or other dangerous weapon.” USSG § 1B1.1

cmt. n.1(J) (emphasis in original).

12

DENNEY: Yes, sir. It was a plastic pole, it was like

a PVC tube.

THE COURT: And did you in fact swing that at an

officer or an employee --

DENNEY: Yes, sir.

THE COURT: And was that for purposes of assaulting

or resisting that officer or employee of

the United States -- or person assisting

an officer or employee of the United

States?

DENNEY: The purpose was to block the pepper

spray, but I did in that hit -- he did get

hit, yes.

THE COURT: So you did hit an officer. And was that a

Metropolitan Police Department

officer?

DENNEY: I don't know, sir.

THE COURT: But you acknowledge that it was either

an officer of the United States or a

person assisting such an officer of the

United States?

DENNEY: Yes, sir.

THE COURT: And you forcibly hit that individual, is

that correct?

DENNEY: Yes, sir.

THE COURT: And did you do so while that officer or

person was -- I'm sorry, did you do so

while the officer or person who was

assisting the officer was engaged in his

or her official duties?

DENNEY: Yes, sir.

THE COURT: And did you do so intentionally?

DENNEY: Yes, sir.

13

THE COURT: And do you also acknowledge that the

pipe that you hit the officer with was

a dangerous weapon?

DENNEY: Yes, sir.

Denney, (D.D.C. July 26, 2022), ECF No. 55 (Plea Hr’g Tr.) at

24:23–26:14 (emphasis added).

Relying on Denney’s admissions in open court, the district

court determined that Denney used a dangerous weapon in the

assault on Sgt. K.K. We find that conclusion is not clearly

erroneous. Cf. In re Sealed Case, 936 F.3d 582, 589 (D.C. Cir.

2019) (“[B]ecause of what he already agreed to in his plea,

Appellant may not relitigate before us what he did or did not

do. His arguments on appeal must be based on the facts

established through his plea.”).

In addition, given that colloquy, we need not decide

Denney’s argument that a showing of intent is required for the

enhancement to apply when a dangerous weapon is used. Even

if there were such a requirement, Denney openly admitted that

he struck Sergeant K.K. “forcibly” and “intentionally” with a

PVC pipe. Plea Hr’g Tr. at 26:2–11. Denney argues that his

admission only extended to his use of a dangerous weapon for

the purposes of 18 U.S.C. § 111(b), and not for the Guidelines

enhancement. As to the latter, he argues an intent to cause

bodily injury was required. However, we need not decide

whether the relevant Guidelines provision requires an intention

to cause bodily injury. The district court found as a factual

matter that, even assuming Denney’s primary intention was to

knock the crowd-control spray from Sgt. K.K.’s hands, that

would nonetheless mean Denney intended to hit Sgt. K.K.’s

body with the pole with sufficient force to dislodge the weapon

and thereby meant to cause him injury. That factual finding

was not clearly erroneous, and indeed is amply corroborated by

14

Denney’s repeated assaults on Sgt. K.K. and other officers

throughout the day.

We therefore affirm the district court’s application of a

four-level enhancement to Denney’s offense level because the

aggravated assault of Sgt. K.K. involved the use of a

“dangerous weapon” under Guidelines § 2A2.2(b)(2)(B).

*****

Accordingly, we affirm the district court’s judgment.

So ordered.