United States v. Devereaux

91 F.4th 1361

UNITED STATES of America, Plaintiff - Appellee, v. Kenneth DEVEREAUX, Defendant - Appellant.

No. 22-1203

United States Court of Appeals, Tenth Circuit

FILED February 6, 2024

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CR-00352-RM-1)

Submitted on the briefs:^*

Virginia L. Grady, Federal Public Defender and Jacob Rasch-Chabot, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant Kenneth Devereaux.

Cole Finnegan, U.S. Attorney and J. Bishop Grewell, Assistant U.S. Attorney, Denver, Colorado, for Plaintiff-Appellee United States of America.

Before CARSON, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant Kenneth Devereaux challenges his sixty-month sentence for being a felon in possession of a firearm. Devereaux contends that, in calculating his sentence under the guidelines, the district court erred in treating his prior conviction under 18 U.S.C. § 113(a)(6) for assault resulting in serious bodily injury as a "crime of violence" and then using that prior conviction to increase Devereaux's base offense level. The district court deemed Devereaux's prior § 113(a)(6) conviction to be a "crime of violence" after determining that it had as an element the use, attempted use, or threatened use of physical force against the person of another.

A § 113(a)(6) assault can be committed either intentionally or recklessly. The question here is whether those alternate mentes reae are elements of two different offenses proscribed by § 113(a)(6) or are instead different means to commit a single indivisible offense. Applying Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), we conclude they are different means to commit a single indivisible offense. In light of that and because the least criminalized conduct § 113(a)(6) proscribes is recklessness, a § 113(a)(6) conviction categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another. See Borden v. United States, 593 U.S. 420, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021) (plurality). The district court, therefore, erred in treating Devereaux's prior § 113(a)(6) conviction as a "crime of violence." Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we VACATE Devereaux's sentence and REMAND for resentencing.

I. BACKGROUND

Devereaux pled guilty to being a previously convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In preparation for sentencing, a probation officer prepared a presentence report ("PSR"), which used U.S.S.G. § 2K2.1(a) to calculate Devereaux's base offense level.¹ Section 2K2.1 applies to a variety of firearm offenses; § 2K2.1(a) provides different base offense levels depending on the circumstances of a given case. Here, the PSR originally calculated Devereaux's base offense level to be 20, based on the fact that Devereaux admitted possessing an unlawful short-barreled shotgun. See U.S.S.G. § 2K2.1(a)(4)(B)(i)(II).

Devereaux's base offense level would have, instead, been 22 if, in addition to his possessing the short-barreled shotgun, one of his prior convictions qualified as a "crime of violence." See id. § 2K2.1(a)(3). Before sentencing, the district court raised the possibility that Devereaux's prior conviction under 18 U.S.C. § 113(a)(6) for assault resulting in serious bodily injury qualified as a "crime of violence."²

Devereaux, the Government, and the probation officer all responded that Devereaux's prior § 113(a)(6) felony conviction did not qualify as a "crime of violence." The district court disagreed and increased Devereaux's base offense level to 22.³ In doing so, the court concluded that Devereaux's prior § 113(a)(6) assault conviction qualified as a "crime of violence" because it "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).⁴

A court applies the now familiar categorical approach to determine whether a prior conviction qualifies as a "crime of violence" under U.S.S.G. § 4B1.2(a). See Maloid, 71 F.4th at 804-05. The categorical approach focuses on the elements of the prior offense of conviction and not on the defendant's actual conduct underlying that prior conviction. See Mathis, 579 U.S. at 504, 136 S.Ct. 2243.

If some conduct that would be a crime under the statute [of prior conviction] 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."

Maloid, 71 F.4th at 805 (quoting United States v. O'Connor, 874 F.3d 1147, 1151 (10th Cir. 2017)).

One problem with treating Devereaux's prior § 113(a)(6) assault conviction as a "crime of violence" is that a § 113(a)(6) assault can be committed recklessly, see United States v. Zunie, 444 F.3d 1230, 1232, 1233-35 (10th Cir. 2006), but a reckless offense categorically does not have "as an element the use, attempted use, or threatened use of physical force against the person of another," Borden, 141 S. Ct. at 1821-22 (quoting 18 U.S.C. § 924(e)(2)(B)(i)). Here, the district court avoided this problem by ruling that § 113(a)(6) is divisible; that is, it proscribes not one but two different offenses: 1) intentional and 2) reckless assault resulting in serious injury.⁵ Treating § 113(a)(6) as divisible, the district court applied the modified categorical approach and, reviewing the relevant Shepard⁶ documents—including charging and plea documents from Devereaux's prior assault case—determined that Devereaux's previous § 113(a)(6) conviction was for intentional, rather than reckless, assault resulting in serious bodily injury. On that basis, the district court determined that Devereaux's prior assault conviction qualified as a "crime of violence" that increased his base offense level from 20 to 22, which in turn raised his advisory imprisonment range from 57 to 71 months up to 70 to 87 months. The district court then imposed a below-guideline sentence of 60 months in prison.

Devereaux appeals the district court's decision to treat his prior § 113(a)(6) assault conviction as a "crime of violence." The Government agrees with Devereaux that the district court erred.

II. STANDARD OF REVIEW

This court reviews de novo the question of "[w]hether a prior conviction qualifies as a 'crime of violence' under the Guidelines." United States v. Gieswein, 887 F.3d 1054, 1058 (10th Cir. 2018).

III. DISCUSSION

The question we address is whether the alternate mentes reae⁷ that can violate § 113(a)(6)—intentional (purposeful and knowing) and reckless—are elements of separate assault offenses or are instead different factual means to commit a single, indivisible assault offense. Applying the Supreme Court's guidance in Mathis, we conclude that § 113(a)(6) sets forth a single offense—assault resulting in serious bodily injury—that can be committed by means of either intentional or reckless conduct. Thus, we assess whether a prior § 113(a)(6) conviction qualifies as a crime of violence using the categorical, rather than the modified categorical, approach.

A. Mathis' guidance

As we previously noted, the categorical approach focuses on the elements of the prior offense of conviction rather than on the actual conduct underlying that conviction. See Mathis, 579 U.S. at 504, 136 S.Ct. 2243.

"Elements" are the "constituent parts" of a crime's legal definition—the things the "prosecution must prove to sustain a conviction." Black's Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999); and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty, see McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Id.

When a criminal statute "list[s] elements in the alternative, and thereby define[s] multiple crimes," a court applies the modified categorical approach. Id. at 505, 136 S.Ct. 2243. "Under that approach, a sentencing court [first] looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. After making that determination, the court can then apply the categorical approach to determine whether that offense of conviction qualifies as a "crime of violence." Id. at 506-07, 136 S.Ct. 2243.

The Supreme Court recognizes there is a different type of criminal statute, one which sets forth, not "multiple elements" that create separate offenses, but instead "enumerates various factual means of committing a single element." Id. at 506, 136 S.Ct. 2243. The modified categorical approach does not apply to a conviction under that type of statute. Id. at 503, 506-07, 513, 517, 136 S.Ct. 2243. Instead, in that situation, only the categorical approach applies based on the offense's elements, regardless of what factual means the defendant employed to commit the single indivisible offense. See id. at 503, 513, 136 S.Ct. 2243.

As an example of a statute that sets forth several factual means to commit a single offense, Mathis cites the following:

[S]uppose a statute requires use of a "deadly weapon" as an element of a crime and further provides that the use of a "knife, gun, bat, or similar weapon" would all qualify. See Descamps[ v. United States], 570 U.S. [254,] 271, 133 S.Ct. 2276, 186 L.Ed.2d 438 [(2013)]; Richardson, 526 U.S. at 817, 119 S.Ct. 1707. Because that kind of list merely specifies diverse means of satisfying a single element of a single crime—or otherwise said, spells out various factual ways of committing some component of the

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