UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross-Appellant,
DUSTIN E. ASH, Defendant-Appellant/Cross-Appellee.
from the United States District Court No. 2:15-CR-20054-CM-1
for the District of Kansas
T. Hansmeier (Melody Brannon, with him on the briefs), Kansas
Federal Public Defender, Kansas City, Kansas, for Defendant -
A. Brown (Stephen R. McAllister, with him on briefs), United
States Attorney's Office, Topeka, Kansas, for Plaintiff -
TYMKOVICH, Chief Judge, LUCERO and MATHESON, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
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.
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. Paired with a
criminal history category of V, the PSR determined his
Guidelines range was 84 to 105 months' imprisonment.
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. It argued
Ash's base offense level should have been 24 pursuant to
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
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).
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).
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).
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, ...