United States v. Bettcher

911 F.3d 1040

UNITED STATES of America, Plaintiff - Appellant,

v.Anthony Wayne BETTCHER, Defendant - Appellee.

No. 16-4165

United States Court of Appeals, Tenth Circuit.

FILED December 21, 2018

William Glaser, Attorney, Criminal Division, Appellate Section, Department of Justice, Washington, D.C. (John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, Salt Lake City, Utah, on the briefs), for Plaintiff-Appellant.

Benjamin C. McMurray, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with him on the brief), Salt Lake City, Utah, for Defendant-Appellee.

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

We must decide whether Utah’s second-degree aggravated-assault offense categorically qualifies as a "crime of violence" under the elements clause provided in the federal sentencing guidelines.¹ See U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (U.S. Sentencing Comm’n 2015). Because we hold that the Utah offense does qualify, we reverse the district court’s contrary decision and remand for resentencing.

BACKGROUND

In May 2016, Anthony Bettcher pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). Afterward, a probation officer reviewed Bettcher’s past, including his criminal history, and prepared a Presentence Investigation Report (PSR).

The PSR informed the district court that in 2013, the State of Utah had charged Bettcher with second-degree aggravated assault. At the time,² Utah law defined simple assault as follows:

(a) an attempt, with unlawful force or violence, to do bodily injury to another;

(b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or

(c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.

Utah Code Ann. § 76-5-102(1) (LexisNexis 2012).³ To convict Bettcher of second-degree aggravated assault, prosecutors had to prove the simple assault, plus two additional elements: (1) that he used either "(a) a dangerous weapon as defined in Section 76-5-601[ ] or (b) other means or force likely to produce death or serious bodily injury," id. § 76-5-103(1), and (2) that his conduct "result[ed] in serious bodily injury," id. § 76-5-103(2)(b).

In the PSR, the probation officer recommended treating this earlier conviction as a crime of violence, which if adopted would enhance Bettcher’s base offense level.⁴ See U.S.S.G §§ 2K2.1(a)(4)(A), 4B1.2(a)(1) (2015). At his sentencing hearing, Bettcher objected to the crime-of-violence enhancement. He argued that crimes capable of being committed recklessly don’t categorically have as an element the use of physical force against another person, so they can’t be crimes of violence under U.S.S.G. § 4B1.2(a)(1). And because the Utah legislature didn’t specify a mens rea (or provide strict liability) for second-degree aggravated assault, "intent, knowledge, or recklessness ... suffice to establish criminal responsibility." Utah Code Ann. § 76-2-102 (LexisNexis 2012) ; see State v. McElhaney , 579 P.2d 328, 328–29 (Utah 1978) (applying § 76-2-102 ’s gap-filler mens rea to an earlier version of the aggravated-assault statute). Thus, everyone at the hearing agreed, Utah permits second-degree aggravated-assault convictions based on reckless conduct.⁵

The government recognized that this circuit’s precedents favored Bettcher’s position that reckless crimes categorically aren’t crimes of violence under the elements clause. But the government argued that our court’s precedents had relied on a mistaken interpretation of Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) —as recently revealed in Voisine v. United States , ––– U.S. ––––, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016). In the end, the district court agreed with Bettcher that a reckless assault isn’t a crime of violence under U.S.S.G. § 4B1.2(a)(1), and so it declined to apply the crime-of-violence enhancement.

The government appealed. It asks us to examine the viability of our earlier precedents and their foundations.

DISCUSSION

We review de novo whether the elements of an earlier offense establish a categorical crime of violence. United States v. Williams , 893 F.3d 696, 699 (10th Cir. 2018). We apply the categorical approach, examining the elements of the Utah statute to see whether they meet the requirements of U.S.S.G. § 4B1.2(a)(1) ’s crime-of-violence definition. Kendall , 876 F.3d at 1267 (citing United States v. Titties , 852 F.3d 1257, 1268 (10th Cir. 2017) ).

In Leocal v. Ashcroft , the Court first addressed what level of mens rea must attend the "use" of physical force against another person to qualify as a crime of violence. 543 U.S. at 7–9, 125 S.Ct. 377. In that case, the government removed from the United States a lawful permanent resident, Josue Leocal, after a Florida jury found him guilty of driving under the influence resulting in bodily injury. Id. at 4–6, 125 S.Ct. 377. At issue in Leocal was whether this state offense qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which in turn depended on whether the offense qualified as a "crime of violence" under 18 U.S.C. § 16. Id. at 4–5, 125 S.Ct. 377. Section 16(a) has an elements clause nearly identical to U.S.S.G. § 4B1.2(a)(1) ’s.⁶ See id. at 4–5, 125 S.Ct. 377.

In examining the meaning of "use" of physical force against another under 18 U.S.C. § 16(a) ’s elements clause,⁷ the Leocal Court noted that though the Florida statute "requires proof of causation of injury, [it] does not require proof of any particular mental state." Id. at 7–8, 125 S.Ct. 377 (citing State v. Hubbard , 751 So.2d 552, 562–64 (Fla. 1999) ). Employing its earlier rule that "use" requires "active employment," the Court rejected any reading allowing even the "elastic" word "use" to include accidental or negligent conduct. Id. at 9, 125 S.Ct. 377 (citing Bailey v. United States , 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), superseded by statute on other grounds , 18 U.S.C. § 924(c)(1)(A), as recognized in United States v. O’Brien , 560 U.S. 218, 232–33, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) ). Lacking a mens rea requirement for causing bodily injury, the Florida offense reached even negligent uses of force against another person, disabling it from being a crime of violence under 18 U.S.C. § 16. Id. at 11–12, 125 S.Ct. 377. But the Court declined to address—as unpresented—"whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16." Id. at 13, 125 S.Ct. 377.

Twelve years later, in Voisine v. United States , the Court faced that question in deciding whether Maine reckless domestic assaults categorically included the use of physical force as defined within the meaning of "misdemeanor crime of domestic violence" in 18 U.S.C. §§ 921(a)(33) and 922(g)(9). 136 S.Ct. at 2277–80. In Voisine , the Court considered two steps implicit in Leocal : (1) was the defendant’s conduct volitional, not "merely accidental"? and (2) did the level of mens rea required by the state crime involve a "use" of physical force against another person?⁸ Id. at 2278–79 (quoting Leocal , 543 U.S. at 9, 125 S.Ct. 377 ).

The Court rejected Mr. Voisine’s argument that Leocal "marks a dividing line between reckless and knowing conduct." Id. at 2279. Commenting on what mens rea the word "use" requires, the Court said that "use" "does not demand that the person applying force have the purpose [i.e., intent] or practical certainty [i.e., knowledge] that [the use of force] will cause harm, as compared with the understanding that it is substantially likely to do so [i.e., reckless]." Id. Significantly, in broad language in a section not particular to misdemeanor crimes of domestic violence, the Voisine Court pointedly addressed the issue Leocal reserved—whether the Court would group reckless harm (voluntary acts "undertaken with awareness of their substantial risk of causing injury") with intentional and knowing harm or, instead, with negligent and accidental harm. Id. at 2278–80. The Court chose the former, for a simple reason: "The harm such [reckless] conduct causes is the result of a deliberate decision to endanger another—no more an ‘accident’ than if the ‘substantial risk’ were ‘practically certain.’ " Id. at 2279.

Voisine ’s application and understanding of Leocal overrides our contrary precedents classifying reckless harm with negligent or accidental harm. In our seminal case, United States v. Zuniga-Soto , we read Leocal to categorically exclude crimes capable of being committed recklessly from meeting the use-of-physical-force requirement. 527 F.3d 1110, 1113, 1124 (10th Cir. 2008) (considering misdemeanor crimes of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and cmt. n.1(B)(iii) (2006) ). As did the other circuit courts after Leocal , we grouped reckless conduct with accidental and negligent conduct. Id. at 1124 ("In light of the persuasive reasoning of our sister circuits, we are convinced that recklessness falls into the category of accidental conduct that the Leocal Court described as failing to satisfy the use of physical force requirement under either of § 16 ’s definitions of ‘crime of violence.’ " (citing Leocal , 543 U.S. at 9, 125 S.Ct. 377 ) ).

Following that same approach, we held in United States v. Duran that crimes permitting a mens rea of recklessness could not categorically be crimes of violence under U.S.S.G. § 4B1.2(a). 696 F.3d 1089, 1095 (10th Cir. 2012). Until Voisine , Duran would have bound us to rule now in Bettcher’s favor. But Duran must now yield to Voisine ’s reading of Leocal . Indeed, under other sentencing provisions, we have since applied Voisine to include as "crimes of violence" crimes capable of being committed with a...