United States v. Devereaux.
No. 22-1203. 2/6/2024. D.Colo. Judge Ebel. US Sentencing Guidelines—Base Offense Level—Prior Conviction—Categorical Versus Modified Categorical Approach—Crime of Violence.
February 6, 2024
Devereaux pleaded guilty to being a previously convicted felon in possession of a firearm, in violation of 18 USC § 922(g)(1). His presentence report (PSR) used US Sentencing Guideline (USSG) § 2K2.1(a) to calculate his base offense level, which provides different base offense levels depending on specific case circumstances. The PSR originally calculated Devereaux’s base offense level to be 20, based on his admitted possession of an unlawful short-barreled shotgun. Before sentencing, the district court raised whether Devereaux’s prior felony conviction under 18 USC § 113(a)(6) for assault resulting in serious bodily injury qualified as a “crime of violence,” which would raise his base offense level to 22. Devereaux, the government, and the probation officer all responded that Devereaux’s prior felony conviction did not qualify as a crime of violence. However, the district court treated § 113(a)(6) as divisible and proscribing two different offenses: (1) intentional assault resulting in serious injury and (2) reckless assault resulting in serious injury. The court applied the modified categorical approach and deemed Devereaux’s prior 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. The court sentenced Devereaux to 60 months’ imprisonment.
On appeal, Devereaux contended that the district court erred in calculating his sentence by treating his prior conviction under 18 USC § 113(a)(6) for assault resulting in serious bodily injury as a “crime of violence” and then using that prior conviction to increase his base offense level. The Tenth Circuit concluded that § 113(a)(6)’s language and the case law applying that statute indicate that § 113(a)(6) sets forth a single indivisible assault offense that can be violated by different mentes reae. Because § 113(a)(6) sets forth a single indivisible assault offense, the categorical, not the modified categorical, approach applies to determine whether a prior conviction qualifies as a crime of violence under USSG § 4B1.2(a). Employing the categorical approach, which focuses on the elements of the prior offense of conviction rather than on the actual conduct underlying that conviction, the Tenth Circuit concluded that because § 113(a)(6) sets forth a single indivisible assault offense that may be committed recklessly, 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. Therefore, the district court erred.
The sentence was vacated and the case was remanded for resentencing.