from the United States District Court for the District of
Colorado (D.C. No. 1:17-CR-00434-RM-1)
A. Pincus, Office of the Federal Public Defender, Denver
Colorado, for Defendant-Appellant.
Farley, Assistant United States Attorney, (Jason R. Dunn,
United States Attorney, with him on the brief), Office of the
United States Attorney, Denver, Colorado, for
HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
Mendez appeals the sentence imposed after he pled guilty in
2018 to violating 18 U.S.C. § 922(g)(1), which prohibits
felons from possessing firearms. On appeal, he contends his
sentence was improperly inflated because the district court
held that a prior conviction for attempted robbery in
Colorado qualified as a "crime of violence" under
§ 4B1.2(a) of the United States Sentencing Guidelines
("U.S.S.G." or "the guidelines"). We
Mendez entered an unconditional guilty plea but objected to
the probation officer's presentence report, which
calculated a recommended sentence of 30-37 months under the
sentencing guidelines. Specifically, Mr. Mendez disputed the
determination that a 2001 conviction for attempted robbery in
Colorado qualified as a prior "crime of violence,"
which resulted in an enhanced base offense level of 20 under
U.S.S.G. § 2K2.1(a)(4)(A). Arguing that the conviction
did not qualify, Mr. Mendez asked the court to impose a
sentence of 15-21 months using a base offense level of 14,
the level applicable to Mr. Mendez absent the
crime-of-violence enhancement. After briefing and oral
argument on the matter, the district court imposed a sentence
of 30 months, holding that Mr. Mendez's 2001 conviction
was a crime of violence.
a prior conviction qualifies as a crime of violence for
purposes of the sentencing guidelines is a matter of
statutory interpretation. United States v. Charles,
576 F.3d 1060, 1066 (10th Cir. 2009). Accordingly, our review
is de novo. Id.
apply a categorical approach to determine whether a prior
conviction falls within U.S.S.G. § 4B1.2(a),
which provides that an offense is a "crime of
violence" if (1) its elements include "the use,
attempted use, or threatened use of physical force against
the person of another", or (2) the offense is any of
several crimes enumerated in the guideline itself. See
United States v. O'Connor, 874 F.3d 1147, 1151-52
(10th Cir. 2017). Under the categorical approach, it is not
the particular defendant's conduct that counts but the
scope of conduct that may be prosecuted under the statute of
his conviction. Id. at 1151. Violation of the
underlying statute must categorically constitute a crime of
violence for the enhancement to apply. If a course of conduct
would be criminal under the statute but the same conduct
would not satisfy either prong of § 4B1.2(a), then no
conviction under the statute will serve as a predicate. The
test is all or nothing. O'Connor, 874 F.3d at
case appears, on first blush, deceptively easy to resolve.
The application note appended to the guideline defining
"crime of violence" clarifies that the term
includes "attempting to commit" such a crime.
§ 4B1.2 cmt. n.1. Moreover, we have previously held that
Colorado's definition of robbery is a crime of violence
under § 4B1.2 because it involves the use or threatened
use of physical force. See United States v. Crump,
674 Fed.Appx. 802 (10th Cir. 2017) (unpublished); cf.
United States v. Harris, 844 F.3d 1260 (10th Cir. 2017)
(holding that a conviction under Colorado's robbery
statute triggers enhancement under 18 U.S.C. §
924(e)(1)). This, however, does not end our enquiry.
4B1.2 offers no definition of what constitutes
"attempt." If criminal attempt as defined by
Colorado law covers a broader scope of conduct than
"attempt" for the purposes of the guidelines, then
attempted robbery under Colorado law is not categorically a
crime of violence and Mr. Mendez is not subject to the
enhancement. The operative portion of Colorado's
criminal-attempt statute provides as follows:
A person commits criminal attempt if, acting with the kind of
culpability otherwise required for commission of an offense,
he engages in conduct constituting a substantial step toward
the commission of the offense. A substantial step is any
conduct . . . which is strongly corroborative of the firmness