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United States v. Ash

United States Court of Appeals, Tenth Circuit

March 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross-Appellant,
v.
DUSTIN E. ASH, Defendant-Appellant/Cross-Appellee.

          Appeal from the United States District Court No. 2:15-CR-20054-CM-1 for the District of Kansas

          Daniel T. Hansmeier (Melody Brannon, with him on the briefs), Kansas Federal Public Defender, Kansas City, Kansas, for Defendant - Appellant/Cross-Appellee.

          James A. Brown (Stephen R. McAllister, with him on briefs), United States Attorney's Office, Topeka, Kansas, for Plaintiff - Appellee/Cross-Appellant.

          Before TYMKOVICH, Chief Judge, LUCERO and MATHESON, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         In this cross-appeal, the parties challenge two district court rulings that considered whether certain offenses are crimes of violence under U.S.S.G. § 4B1.2(a). Intervening authority resolves both challenges. First, the Supreme Court recently determined that robbery qualifies as a crime of violence if the offense requires the perpetrator to overcome victim resistance. Stokeling v. United States, 139 S.Ct. 544, 549 (2019). We thus hold that Dustin Ash's Missouri conviction for second-degree robbery is a crime of violence. Second, our court recently reversed its prior precedent and rejected Ash's argument that offenses with a mens rea of recklessness cannot qualify as crimes of violence. United States v. Bettcher, 911 F.3d 1040, 1046 (10th Cir. 2018). We accordingly conclude that Ash's Kansas conviction for reckless aggravated battery is a crime of violence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse in part, affirm in part, and remand for resentencing.

         I

         Ash pled guilty to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His Presentence Investigation Report ("PSR") identified a 2012 Kansas conviction for reckless aggravated battery as a "crime of violence" under U.S.S.G. § 4B1.2(a). Concluding that Ash had one such prior conviction, the PSR set his base offense level at 20 pursuant to § 2K2.1(a)(4)(A). After making several adjustments, the PSR indicated Ash's total offense level was 23.[1] Paired with a criminal history category of V, the PSR determined his Guidelines range was 84 to 105 months' imprisonment.

         Both parties objected to the PSR. Ash contended the Kansas statute under which he was convicted does not categorically satisfy the definition of "crime of violence" because it can be committed with a mens rea of recklessness. He thus argued his base offense level should have been 14 under § 2K2.1(a)(6). The government countered that Ash had at least two prior convictions for crimes of violence: his Kansas conviction (already included in the PSR), and a 2001 Missouri conviction for second-degree robbery.[2] It argued Ash's base offense level should have been 24 pursuant to § 2K2.1(a)(2).

         The district court overruled both objections. It determined Ash's Kansas reckless aggravated battery conviction qualifies as a crime of violence, but his Missouri second-degree robbery conviction does not. The court agreed with the PSR that the appropriate advisory Guidelines range was 84 to 105 months. It imposed a 94-month sentence. Ash appeals the district court's ruling as to the Kansas offense. The government cross-appeals as to the Missouri offense.

         II

         "Our review of whether a defendant's prior conviction constitutes a crime of violence under U.S.S.G. § 4B1.2 is de novo." United States v. Wray, 776 F.3d 1182, 1184 (10th Cir. 2015). That provision defines "crime of violence" in part as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1). We refer to this portion of the definition as the "elements clause." United States v. Taylor, 843 F.3d 1215, 1220 (10th Cir. 2016).

         Our inquiry under the elements clause demands application of "the categorical approach, examining the elements of the [state] statute to see whether they meet the requirements of U.S.S.G. § 4B1.2(a)(1)'s crime of violence definition." Bettcher, 911 F.3d at 1043. To determine if an offense satisfies "the elements clause's 'physical force' component . . . we must identify the minimum 'force' required by [state law] law for the crime of [conviction] and then determine if that force categorically fits the definition of physical force." United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017) (emphasis omitted).[3]

         "Federal law defines the meaning of the phrase 'use, attempted use, or threatened use of physical force.'" Harris, Id. In analyzing an identically worded elements clause contained in 18 U.S.C. § 16, the Supreme Court held that the word "'use' requires active employment" rather "than negligent or accidental conduct." Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The modifier "physical" limits the elements clause to "force exerted by and through concrete bodies" as opposed to, "for example, intellectual or emotional force." Johnson v. United States, 559 U.S. 133, 138 (2010). And "physical force" means "violent force-that is, force capable of causing physical pain or injury to another person." Id. at 140 (emphasis omitted).

         We look to state law to define "the substantive elements of the crime of conviction." Harris, 844 F.3d at 1264. In identifying the "minimum force" required for the crime of conviction, such "minimum culpable conduct . . . only includes that in which there is a realistic probability, not a theoretical possibility the state statute would apply." Id. (quotations omitted). "Decisions from the state supreme court best indicate a realistic probability, ...


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