Second Circuit Clarifies the “Offense-Guideline Exception” to the Official-Victim Enhancement – Commentary on United States v. Cooke (2025)

I. Introduction

In United States v. Cooke, No. 24-1967 (2d Cir. July 10, 2025), the United States Court of Appeals for the Second Circuit addressed an ostensibly narrow but frequently recurring question of federal sentencing: when may a district court apply the six-level “official-victim” enhancement under § 3A1.2(b) of the United States Sentencing Guidelines (“Guidelines”) in cases where the underlying offense guideline also contains language mentioning the victim’s governmental status?

The answer matters because § 3A1.2(b) can add years to a defendant’s sentence. After James (spelled “Jamees” in some filings) Cooke pled guilty to violently assaulting members of a U.S. Marshals Service fugitive task force, the district court imposed that enhancement and sentenced him to 84 months. On appeal, Cooke accepted that he punched and bit federal officers but argued that § 3A1.2(b) could not apply because his base offense guideline (§ 2A2.2, Aggravated Assault) already includes its own officer-related enhancement at subsection (b)(7).

The Second Circuit affirmed, drawing a bright line: the “offense-guideline exception” to § 3A1.2 applies only to Guideline § 2A2.4 (Obstructing or Impeding Officers). Where a defendant, like Cooke, is sentenced under § 2A2.2, courts remain free—indeed instructed—to stack § 3A1.2(b) on top of any overlapping subsection (b)(7) increase.

II. Summary of the Judgment

Holding. Section 3A1.2(b) is inapplicable only when the Chapter 2 offense guideline “specifically incorporates” the official-victim factor. The commentary identifies one—and only one—such guideline: § 2A2.4. Because Cooke was sentenced under § 2A2.2, the enhancement was proper.
Procedural Posture. Review was for plain error because Cooke did not raise his textual argument below. The panel nevertheless found no error at all, so the heightened standard was not outcome-determinative.
Result. Judgment of conviction and sentence of 84 months affirmed.

III. Analysis

A. Precedents Cited and Their Influence

The panel leaned on several strands of case law:

Guideline Interpretation Cases
- Stinson v. United States, 508 U.S. 36 (1993) – Establishes that Guideline commentary is “authoritative” unless it conflicts with the text or federal law.
- United States v. Roberts, 442 F.3d 128 (2d Cir. 2006) – Emphasizes ordinary-meaning, statutory-construction principles in Guideline interpretation.
- United States v. Pedragh, 225 F.3d 240 (2d Cir. 2000) – Commands courts to harmonize guideline text with commentary where possible.
These cases framed the interpretive methodology, allowing the panel to give dispositive weight to Application Note 2 of § 3A1.2.
Plain-Error Review Line
- United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008); Moore, Villafuerte – Provide the four-part plain-error framework.
- Davis v. United States, 589 U.S. 345 (2020) – Implicitly narrowed any “relaxed” sentencing-error exception, a point the panel noted but sidestepped.
Because the panel ultimately discerned no Guideline misinterpretation, it found no error, plain or otherwise.
Substantive Sentencing Precedent
- United States v. Gamez, 577 F.3d 394 (2d Cir. 2009) – Cited by Cooke for a lenient plain-error standard in sentencing; the panel questioned its continued vitality.

B. Legal Reasoning of the Court

Textual Anchor in Application Note 2. Note 2 explicitly states:
“The only offense guideline in Chapter Two that specifically incorporates this factor is § 2A2.4.”
From this declarative statement, the panel reasoned that any broader, judge-made extension would be inconsistent with both the text and the Stinson deference principle.
Harmonization with § 2A2.2 Commentary. Application Note 4 to § 2A2.2 says: “If subsection (b)(7) applies, § 3A1.2 also shall apply.” Cooke’s reading would render that instruction meaningless—an interpretive result the canon against surplusage disfavors.
Rejection of the “Postal-Employee Example” as Expansive. The defendant relied heavily on Note 3’s example—robbery of a postal worker. The panel responded that the example deals with § 2B3.1 (Chapter 2, Part B), not with § 3A1.2(b) at all, and therefore cannot create a cross-part exception.
No Conflict with Constitutional or Statutory Provisions. Because the commentary’s limitation to § 2A2.4 is neither unconstitutional nor in statutory conflict, Stinson makes it binding.

C. Potential Impact on Future Litigation and Sentencing Practice

Increased Sentences in Assault-on-Officer Cases. Defendants prosecuted under § 2A2.2 will almost invariably face both subsection (b)(7) and the § 3A1.2(b) enhancement, cumulatively adding up to 10 offense levels (4 + 6) before other adjustments.
Clarification Reduces Circuit Splits. While no other circuit has expressly limited the exception to § 2A2.4, some district courts elsewhere had begun to follow Cooke-like arguments. This decision provides persuasive authority narrowing the exception nationwide.
Guideline Amendment Pressure. The Sentencing Commission may face calls to resolve the seeming overlap between § 2A2.2(b)(7) and § 3A1.2(b). Until amended, courts in the Second Circuit are bound to apply both.
Plain-Error Strategy. The opinion underscores the risk of raising complex guideline-interpretation arguments for the first time on appeal. Defense counsel will likely present such objections at sentencing henceforth.

IV. Complex Concepts Simplified

Official-Victim Enhancement (§ 3A1.2): Adds either 3 or 6 offense levels when a defendant targets law-enforcement or other government officials because of their status.
Offense Guideline (§ 2A2.2 vs. § 2A2.4): Each federal crime maps to one primary “Chapter 2” guideline. § 2A2.2 covers aggravated assaults (serious injury or weapon). § 2A2.4 covers obstruction or impeding officers (generally less serious conduct).
“Specifically Incorporates” Exception: If the base offense guideline already factors in the victim’s government status, § 3A1.2 should not be double-counted. The commentary says only § 2A2.4 qualifies.
Plain-Error Review: An appellate standard applied when an argument wasn’t preserved below. The appellant must show (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) seriously affecting the fairness or integrity of proceedings.

V. Conclusion

United States v. Cooke delivers a precise textual holding with broad practical reach: save for § 2A2.4, district courts must apply the “official-victim” enhancement even when the underlying offense guideline already acknowledges the governmental status of a victim. By rooting its analysis in the plain language of Application Note 2 and maintaining fidelity to Stinson and harmonization canons, the Second Circuit provides welcome clarity to sentencing courts and litigants alike.

Key takeaways: (1) defense attorneys should preserve guideline arguments at sentencing; (2) overlapping enhancements are not necessarily impermissible double-counting when the commentary instructs otherwise; and (3) textual commentary—unless inconsistent with the guideline or law—remains binding. In the broader context, Cooke reinforces the primacy of the Sentencing Commission’s commentary and signals that perceived redundancies must be corrected by the Commission, not the courts.