United States of America 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

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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).

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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”

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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

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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.

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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.”

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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.

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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.

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“‘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

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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

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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).

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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.

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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

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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.

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