United States v. Adams

40 F.4th 1162

UNITED STATES, Plaintiff - Appellee,

v.Briar Clayton Eugene ADAMS, Defendant - Appellant.

No. 21-3043

United States Court of Appeals, Tenth Circuit.

FILED July 20, 2022

Melody Brannon, Kansas Federal Public Defender (Daniel T. Hansmeier, Appellate Chief, with her on the briefs), Kansas City, Kansas, for Defendant-Appellant.

Bryan C. Clark, Assistant United States Attorney, District of Kansas (Duston J. Slinkard, Acting United States Attorney, and James A. Brown, Assistant United States Attorney, with him on the briefs), Kansas City, Kansas, for Plaintiff-Appellee.

Before BACHARACH, EBEL, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal involves a challenge to a criminal sentence for unlawfully possessing a firearm. In deciding the sentence, the district court started with the federal sentencing guidelines. Under the guidelines, a prior conviction for a crime of violence would increase the base-offense level. U.S.S.G. § 2K2.1(a)(4).

The district court applied this guideline provision to the defendant, Mr. Briar Adams, who had a prior conviction in Kansas for aggravated battery. In considering that conviction, the court classified aggravated battery as a crime of violence and sentenced Mr. Adams to 51 months’ imprisonment.¹

Mr. Adams challenges this classification, arguing that Kansas's crime of aggravated battery includes conduct that wouldn't create a crime of violence under the sentencing guidelines. We agree. In Kansas an aggravated battery could stem from battery against a fetus, and the guidelines’ definition of a crime of violence wouldn't cover battery against a fetus. Because the Kansas crime of aggravated battery doesn't constitute a crime of violence, we vacate the sentence and remand for resentencing.

I. We must decide whether aggravated battery in Kansas constitutes a crime of violence under the applicable sentencing guideline.

Mr. Adams was convicted of aggravated battery. Under Kansas law, aggravated battery takes place when someone "knowingly caus[es] physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted." Kan. Stat. Ann. § 21-5413(b)(1)(C) (emphasis added).² A separate definitional provision for the term person includes an "unborn child." Kan. Stat. Ann. § 21-5419(c). The term unborn child is itself defined as "a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth." Id.

Given these definitional provisions, we must determine whether the statutory definition of person creates separate crimes for batteries against fetuses and individuals born alive. If these definitional provisions create separate crimes, we would need to decide

• which crime was reflected in Mr. Adams's judgment and

• whether that crime qualified as a "crime of violence."

If the definitional provisions do not create separate crimes, we would need to decide whether every conviction under the Kansas aggravated-battery statute would necessarily qualify as a crime of violence .

We conclude that the definitional provisions do not create separate crimes. So we must consider whether some aggravated batteries would fall outside the guidelines’ definition of a crime of violence . We answer yes . The guidelines define a crime of violence 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." U.S.S.G. § 4B1.2(a)(1) (emphasis added). Under this guideline definition, we conclude that the term person refers only to individuals born alive; fetuses aren't included. So some aggravated batteries in Kansas would fall outside the federal sentencing guidelines’ definition of a crime of violence .

II. We compare the guidelines’ definition of a crime of violence to the elements of Mr. Adams's crime.

To determine whether the state conviction matches the federal sentencing guidelines’ definition of a crime of violence , we apply the categorical approach. United States v. Taylor , 843 F.3d 1215, 1220 (10th Cir. 2016). Under this approach, the court identifies the elements of the statute of conviction. Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; United States v. Kendall , 876 F.3d 1264, 1268 (10th Cir. 2017). The court then "compare[s] the scope of conduct covered by the elements of the crime ... with § 4B1.2(a) ’s definition of ‘crime of violence.’ " United States v. O'Connor , 874 F.3d 1147, 1151 (10th Cir. 2017). "If some conduct that would be a crime under the statute would not be a ‘crime of violence’ under § 4B1.2(a), then any conviction under that statute will not qualify as a ‘crime of violence’ for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to a defendant's prior conviction was in fact violent." Id .

III. Kansas's statute on aggravated battery creates only a single crime that can be committed against either a fetus or an individual born alive.

To apply the categorical approach, we must determine the scope of the applicable state statute. On appeal, the government argues that Kansas's aggravated-battery statute ( § 21-5413 ) and the definitional provision ( § 21-5419 ) create two separate crimes: (1) § 21-5413 criminalizes battery of individuals born alive, and (2) § 21-5419 criminalizes battery of fetuses. We reject this argument, concluding that the aggravated-battery statute creates only a single crime.

A. The government has justified consideration of its new argument as to the existence of two separate crimes.

The government didn't make this argument in district court. But we have discretion to consider this argument as a basis to affirm. Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). In deciding how to exercise this discretion, we consider

1. "whether the [argument] was fully briefed and argued here and below,"

2. "whether the parties have had a fair opportunity to develop the factual record," and

3. "whether, in light of factual findings to which we defer or uncontested facts, [the court's] decision would involve only questions of law."

Id . The first factor weighs against consideration of the government's new argument as a basis to affirm, but the second and third factors support consideration.

The first factor weighs against consideration because the government did not brief the issue in district court. See United States v. Black , 25 F.4th 766, 777 (10th Cir. 2022) (stating that the first factor weighs against consideration when the argument was fully briefed on appeal but hadn't been briefed in district court); Brown v. Perez , 835 F.3d 1223, 1236 (10th Cir. 2016) ("Because the [appellees] did not raise this argument before the district court, the first factor weighs against reaching it on appeal.").

But the second and third factors support consideration. When the appellate argument involves a pure issue of law, this factor would support consideration. See p. 1166, above. But if the Kansas statute created two separate crimes, we'd need to decide which crime Mr. Adams had committed. That inquiry would ordinarily involve either a question of fact or a mixed question of law and fact. Lucio-Rayos v. Sessions , 875 F.3d 573, 583 (10th Cir. 2017) ; see also Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 765, 209 L.Ed.2d 47 (2021) ("Really, this Court has never doubted that the who, what, when, and where of a conviction ... pose questions of fact.").

But here, Mr. Adams hasn't suggested a factual dispute over the nature of his conviction. In its response brief, the government had argued that Mr. Adams's conviction involved battery against his girlfriend rather than a fetus. Mr. Adams responded that he didn't need to address the government's characterization of his conviction. That's true because he contended only that aggravated battery constitutes a single crime that covers harm to a fetus or an individual born alive.

Though Mr. Adams had a chance to address the government's characterization of his conviction, he didn't need to. He could instead do what he did, focusing on the characterization of the crime itself. And that characterization creates a legal issue. See, e.g. , United States v. Lerma , 877 F.3d 628, 632 (5th Cir. 2017) (stating that "the district court's divisibility determination would generally represent a question of law"). Given the legal nature of that issue, we see no deficiency in the record on the government's characterization of Mr. Adams's conviction. So the second and third factors support consideration of the government's new argument.

Because two of the three factors support consideration, we exercise our discretion to consider the government's new argument for affirmance.

B. We reject the government's argument on the merits.

Though we consider the government's new argument, we reject it because aggravated battery in Kansas constitutes a single crime that can be committed against either a fetus or individual born alive.

The parties agree that the Kansas law criminalizes batteries against both fetuses and individuals born alive. But are batteries against individuals and fetuses two separate crimes or just different means of committing the same crime? The answer to this question turns on the distinction between elements and means. United States v. Cantu , 964 F.3d 924, 927–28 (10th Cir. 2020). Elements are what the prosecution must prove to obtain a conviction; means are just ways that someone can commit a crime. Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

To determine whether statutory terms are elements or means, we start by considering the state statute and state caselaw. If they definitively show that the terms are elements or means, the inquiry ends. Id. , 136 S. Ct. at 2256. If the status...