United States v. Fagatele

944 F.3d 1230

UNITED STATES of America, Plaintiff - Appellee,

v.Feuu FAGATELE, Defendant - Appellant.

No. 18-4004

United States Court of Appeals, Tenth Circuit.

FILED November 5, 2019

Motion to Publish Granted December 13, 2019 Nunc Pro Tunc to November 5, 2019

Jessica Stengel, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, District of Utah, with her on the briefs), Salt Lake City, Utah, for the Defendant-Appellant.

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, District of Utah, with him on the brief), Salt Lake City, Utah, for the Plaintiff-Appellee.

Before MORITZ, McKAY, and CARSON, Circuit Judges.

ORDER

This matter is before the court on the United States’ Motion to Publish Opinion, which asks us to convert our unpublished November 5, 2019 Order and Judgment into a published opinion. Upon careful consideration, the motion is granted. The Clerk shall replace the November 5, 2019 Order and Judgment with the attached published opinion effective nunc pro tunc to the date the Order and Judgment was filed.

MORITZ, Circuit Judge.

Feuu Fagatele appeals his 46-month prison sentence, arguing the district court erred in classifying Utah third-degree aggravated assault as a crime of violence under § 4B1.2 of the United States Sentencing Guidelines (U.S.S.G.). For the reasons discussed below, we conclude third-degree aggravated assault "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). Accordingly, we affirm Fagatele’s sentence.

Background

Fagatele pleaded guilty to one count of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Based in part on Fagatele’s 2013 Utah conviction for third-degree aggravated assault—an offense the Presentence Investigation Report (PSR) classified as a crime of violence—the PSR calculated a base offense level of 20. See U.S.S.G. § 2K2.1(a)(4) (assigning base offense level of 20 if "defendant committed any part of the instant offense subsequent to sustaining one felony conviction [for] a crime of violence"); Utah Code Ann. § 76-5-103 (2012) (defining third-degree aggravated assault as assault committed by person who uses dangerous weapon or "other means or force likely to produce death or serious bodily injury").

Fagatele objected, arguing in relevant part that third-degree aggravated assault does not constitute a crime of violence under § 4B1.2(a) ’s elements clause. See § 4B1.2(a)(1) (defining crime of violence as offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another"). In support, he advanced three arguments. First, he asserted that third-degree aggravated assault "can be committed recklessly" and that only those statutes requiring proof of intentional force can satisfy the elements clause. R. vol. 1, 25. Second, he alleged that an individual can commit third-degree aggravated assault by "using force against property ," id. at 27 (emphasis added), and pointed out that an offense only satisfies the elements clause if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1) (emphasis added). Third, he noted that third-degree aggravated assault encompasses assault committed by individuals who use "other means or force," § 76-5-103(1)(b) (emphasis added), and argued that to the extent "Utah law allows for ‘other means’ to form the basis of conviction," third-degree aggravated assault can necessarily "occur without the use of force," R. vol. 1, 92.

The district court rejected all three arguments. First, it ruled that contrary to Fagatele’s assertion, reckless offenses can satisfy the elements clause. Second, it rejected Fagatele’s assertion that an individual can commit third-degree aggravated assault by directing violent force against property , reasoning that § 76-5-103(1)(b) instead "puts the requisite person at the forefront." R. vol. 1, 111 (emphasis added).¹ Third, the district court concluded that Fagatele’s other-means argument failed because (1) third-degree aggravated assault has simple assault as an element; (2) Utah’s definition of simple assault requires proof of "threats, attempts, or acts, to do, cause, or create the risk of force to another," id. at 110 (citing Utah Stat. Ann. § 76-5-102 (2012)); and (3) an individual who commits any of these acts by using "other means or force likely to produce death or serious bodily injury" under § 76-5-103(1)(b) necessarily "at least attempt[s] or threaten[s] the use of physical force," id. (quoting United States v. Pam , 867 F.3d 1191, 1210 (10th Cir. 2017) ). Thus, the district court ruled that third-degree aggravated assault constitutes a crime of violence under § 4B1.2(a)(1).

The district court then adopted the PSR’s proposed base offense level of 20; reduced the offense level by three points because Fagatele accepted responsibility for his offense, see U.S.S.G. § 3E1.1(a) –(b); and calculated a resulting Guidelines range of 51 to 63 months. But the district court ultimately varied downward from the Guidelines range and imposed a 46-month prison sentence. Fagatele now appeals his sentence.

Analysis

According to Fagatele, the district court erred in classifying third-degree aggravated assault as a crime of violence under § 4B1.2(a)(1) ’s elements clause. In support, he advances two general arguments. First, he asserts that under the plain language of § 76-5-103(1), third-degree aggravated assault necessarily encompasses assaults committed by "means" other than force, and therefore force is not an element of the offense. § 76-5-103(1)(b). Second, he alleges that third-degree aggravated assault does not satisfy the elements clause because it can "be committed with a state of mind less than recklessness" and because only those offenses that require proof of "at least reckless[ness]" can satisfy the elements clause. Aplt. Br. 4, 31.

Before turning to these specific arguments, we begin by laying out a few general principles. As noted above, § 4B1.2 ’s elements clause defines a crime of violence as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1). For purposes of the elements clause, the phrase "physical force" means force that is both (1) physical and (2) violent. Id. ; see also United States v. Ontiveros , 875 F.3d 533, 536–39 (10th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 2005, 201 L.Ed.2d 270 (2018). Physical force is "force exerted by and through concrete bodies—distinguishing physical force, from, for example, intellectual force or emotional force." Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 552, 202 L.Ed.2d 512 (2019) (quoting Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). Violent force, on the other hand, is "force capable of causing physical pain or injury to another person." Id. at 553 (quoting Johnson , 559 U.S. at 140, 130 S.Ct. 1265 ).

With this understanding of what physical force is , we can turn to our next task: determining whether a particular offense has such physical force "as an element." § 4B1.2(a)(1). Notably, this inquiry goes beyond the question of whether the relevant statute requires proof that an offender actually used physical force. Instead, in determining whether a particular offense satisfies the elements clause, we ask whether that offense "has as an element" (1) the actual use of physical force, (2) the attempted use of physical force, or (3) the threatened use of physical force. Id.

To answer this question, we apply either the "pure categorical approach" or "the modified categorical approach." United States v. Degeare , 884 F.3d 1241, 1246 (10th Cir. 2018). Under the pure categorical approach, "we examine the statute—and only the statute—and ask whether ‘it can be violated without the "use, attempted use, or threatened use of physical force." ’ " Id. (quoting United States v. Titties , 852 F.3d 1257, 1273 (10th Cir. 2017) ). If so, then the proscribed offense does not satisfy the elements clause. See id. (discussing 18 U.S.C. § 924(e)(2)(B)(i) ’s elements clause); United States v. Hammons , 862 F.3d 1052, 1054 (10th Cir. 2017) (explaining that "we look to the least of the acts criminalized by" relevant statute in determining whether that statute "realistically reaches any conduct that" does not satisfy § 924(e)(2)(B)(i) ), cert. denied , ––– U.S. ––––, 138 S. Ct. 702, 199 L.Ed.2d 588 (2018).²

"This pure categorical approach applies to statutes that aren’t divisible, i.e., those that contain ‘a single, indivisible set of elements.’ " Degeare , 884 F.3d at 1246 (quoting Descamps v. United States , 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). But "if the statute in question is divisible, i.e., if it ‘contains more than one crime,’ " we apply the modified categorical approach instead. Id. at 1246 (quoting Titties , 852 F.3d at 1265 ). Under the modified categorical approach, we may go beyond the language of the statute "to determine which of the statute’s alternative crimes the defendant was actually convicted of committing." Id. "Once we make that threshold determination, we can then apply the categorical approach to the relevant statutory alternative." Id.

Here, the district court ruled that § 76-5-103(1) —which proscribes assault committed by a person who uses "(a) a dangerous weapon" or "(b) other means or force likely to produce death or serious bodily injury"—is indivisible. Notably, Fagatele does not challenge this aspect of the district court’s ruling on appeal. Indeed, he concedes the district court was correct in this regard. Thus, for purposes of this appeal, we assume without deciding that § 76-5-103(1) is indivisible, apply the pure categorical approach, and ask whether "the least of the acts criminalized by" § 76-5-103(1)...