United States v. Venjohn

104 F.4th 179

UNITED STATES of America, Plaintiff - Appellee, v. Steven Robert VENJOHN, Defendant - Appellant.

No. 23-8028

United States Court of Appeals, Tenth Circuit

As corrected June 12, 2024

FILED June 10, 2024

Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:22-CR-00131-ABJ-1)

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Jonathan C. Coppom, Assistant United States Attorney (Nicholas Vassallo, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before PHILLIPS, SEYMOUR, and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Mr. Steven Robert Venjohn was indicted for, and pled guilty to, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 41 months' imprisonment. When calculating his sentence, the district court held that Mr. Venjohn's prior conviction for Colorado felony menacing categorically qualified as a "crime of violence" under § 4B1.2(a)(1) of the United States Sentencing Guidelines ("U.S.S.G"). Mr. Venjohn now appeals, arguing that the district court's ruling improperly inflated his sentencing range and asking us to determine if Colorado felony menacing qualifies as a "crime of violence" under the Sentencing Guidelines.

We hold that in light of the Supreme Court's recent decision in United States v. Taylor, 596 U.S. 845, 142 S. Ct. 2015, 213 L.Ed.2d 349 (2022), Colorado felony menacing no longer categorically qualifies as a "crime of violence" under the Sentencing Guidelines. We therefore reverse and remand for resentencing.

I.

The factual circumstances leading to Mr. Venjohn's arrest and indictment are largely irrelevant to the issues in his appeal. It is enough to say that in January 2023, Mr. Venjohn pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), (g)(3), and 924(a)(8).¹ In preparation for sentencing, the United States Probation Office prepared a presentence investigation report ("PSR"). In the PSR, the probation officer calculated Mr. Venjohn's base offense level at 20 by applying Sentencing Guideline § 2K2.1(a)(4)(A). That Guideline, which applies to defendants convicted of unlawfully possessing a firearm, generally sets a base offense level at 12. See U.S.S.G. § 2K2.1(a)(7). However, that base offense level increases to 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of [ ] a crime of violence." § 2K2.1(a)(4)(A) (emphasis added). A "crime of violence" is "any offense under federal or state law . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1).²

The probation officer found that Mr. Venjohn's previous conviction for Colorado felony menacing³ qualified as a § 4B1.2(a) "crime of violence" and increased his base offense level to 20 accordingly. During sentencing, the district court agreed and ultimately sentenced Mr. Venjohn to 41 months' imprisonment. Mr. Venjohn timely appealed.

II.

Mr. Venjohn contends the district court incorrectly calculated his sentencing range when it improperly determined that Colorado felony menacing categorically qualifies as a "crime of violence." Although he objected to the court's calculation of his base offense level, he did not do so on the same grounds he advances now. Thus, as he admits, our review is for plain error. "Under Federal Rule of Criminal Procedure 52(b), a plain error that affects substantial rights may be considered even though it was not brought to the court's attention." United States v. Cantu, 964 F.3d 924, 935 (10th Cir. 2020) (quoting United States v. Faulkner, 950 F.3d 670, 672 (10th Cir. 2019)). Per that standard, a defendant must show "(1) error, (2) that is plain, (3) which affects the party's substantial rights, and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Moore, 30 F.4th 1021, 1025 (10th Cir. 2022) (quoting United States v. Poe, 556 F.3d 1113, 1128 (10th Cir. 2009)).

A.

The first step in our plain error review is determining whether the district court committed reversible error. We must determine whether it was error for the court to characterize Mr. Venjohn's prior conviction for Colorado felony menacing as a § 4B1.2(a)(1) "crime of violence" and to increase his base offense level accordingly. Mr. Venjohn argues, and the government more or less concedes, that the court's application of § 4B1.2(a)(1) was error. We agree.

1.

We start by acknowledging that pre-2022, our circuit precedent would have easily disposed of Mr. Venjohn's appeal. In United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011), we analyzed the exact Colorado statute at issue here, Colo. Rev. Stat. § 18-3-206, and held that Colorado felony menacing categorically qualified as a "crime of violence" under the Sentencing Guidelines. 651 F.3d at 1233. Because we are bound by our own precedent and that of prior panels, United States v. Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020), Mr. Venjohn's prior conviction would have indisputably been a "crime of violence" for sentencing purposes. In 2022, however, the Supreme Court decided United States v. Taylor. There the Court held that a "threatened use" of force will require some communication by the defendant to his victim. Specifically, it opined that:

[I]n the criminal law the word "threat" and its cognates usually denote "a communicated intent to inflict physical or other harm on any person or on property." Of course, threats can be communicated verbally or nonverbally—pointing a gun at a cashier conveys a threat no less effectively than passing a note reading "your money or your life." But one way or another, some form of communication is usually required. Even the government concedes that the words "threatened force" in the Hobbs Act require proof that the defendant communicated a threat to a second person, whether or not that individual is the target of the threat.

Taylor, 142 S. Ct. at2022-23 (citations removed) (cleaned up).⁴ In light of Taylor, we must revisit Armijo's holding that Colorado felony menacing categorically qualifies as a "crime of violence" under U.S.S.G. § 4B1.2(a)(1).

2.

When determining whether a defendant's prior conviction is a "crime of violence" under U.S.S.G. § 4B1.2(a), we apply what is known as the "categorical approach." See United States v. Mendez, 924 F.3d 1122, 1124 (10th Cir. 2019). Under this approach, we compare the elements of the state crime and the definition of a "crime of violence." See United States v. Wilkins, 30 F.4th 1198, 1201 (10th Cir. 2022) ("Under the categorical approach, we compare the underlying state statute to the guidelines' definition of a 'crime of violence.' "); United States v. Titties, 852 F.3d 1257, 1265 (10th Cir. 2017). Crucially, we do not look to the "underlying facts" of a specific defendant's conviction; we look only to the predicate crime's elements. See United States v. Garcia, 877 F.3d 944, 948 (10th Cir. 2017); Taylor, 142 S. Ct. at 2020 ("And answering [the question of whether a crime has as an element the use, attempted use, or threatened use of physical force] does not require—in fact precludes—an inquiry into how any particular defendant may commit the crime."); United States v. Degeare, 884 F.3d 1241, 1246 (10th Cir. 2018) ("Under the [ ] 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." (cleaned up)). In doing so, "we look to the least of the acts criminalized by the [state] statute." United States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017) (emphasis added). See also Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (explaining that we presume that a defendant's conviction "rested upon nothing more than the least of the acts" criminalized by a state offense (quoting Johnson v. United States (Johnson I), 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010))).

The categorical approach thus demands that the elements of the state crime and the definition of a "crime of violence" in § 4B1.2(a) be a so-called "categorical match" for the sentencing enhancement to apply. See Mendez, 924 F.3d at 1124. "If a course of conduct would be criminal under the statute but the same conduct would not satisfy [the definition of "crime of violence"] of § 4B1.2(a), then no conviction under the statute will serve as a predicate." Id. See also Titties, 852 F.3d at 1266 ("If the statute [at issue] sweeps more broadly than the [Guideline] definition—that is, if some conduct would garner a conviction but would not satisfy the definition—then any conviction under that law cannot count as [a "crime of violence"]." (cleaned up)). Said another way, if the state statute always requires the prosecution to prove "the use, attempted use, or threatened use of force," then that crime will be a § 4B1.2(a)(1) "crime of violence"; if the statute criminalizes conduct that does not require such a showing, then no conviction under that statute can be deemed a crime of violence. "The test is all or nothing." Mendez, 924 F.3d at 1124.

Here, then, we ask whether one can violate the Colorado felony menacing statute without "the use, attempted use, or threatened use of physical force against the person of another" (as that is understood under Taylor). If so, then the Colorado statute and Guideline definition are a categorical mismatch, and Mr. Venjohn's Colorado conviction cannot be used to enhance his Sentencing Guideline range.

Such a categorical comparison between the Sentencing Guidelines and a state statute necessarily requires the "application of both federal law and [...