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United States v. Venjohn.

No. 23-8028. 6/12/2024. D.Wyo. Judge Seymour. US Sentencing Guidelines—Colorado Felony Menacing—Crime of Violence—United States v. Taylor.

June 12, 2024

Venjohn pleaded guilty to being a felon in possession of a firearm in violation of 18 USC § 922(g). When calculating his sentence, the district court held that Venjohn’s prior conviction for Colorado felony menacing categorically qualified as a crime of violence under US Sentencing Guidelines (USSG) § 4B1.2(a)(1). The court sentenced Venjohn to 41 months’ imprisonment.

On appeal, Venjohn contended that the district court improperly determined that Colorado felony menacing categorically qualifies as a crime of violence and thus incorrectly calculated his sentencing range. Under § 4B1.2(a)(1), a “crime of violence” is any state or federal offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Before 2022, under Tenth Circuit precedent, Colorado felony menacing categorically qualified as a crime of violence under the USSG. However, in United States v. Taylor, 142 S. Ct. 2015 (2022), the US Supreme Court held that a “threatened use” of force requires some communication by the defendant to the victim. The threat does not have to be verbal and does not have to be communicated to the defendant’s intended target, but it must be communicated to a second person. The Tenth Circuit analyzed the Colorado felony menacing statute using the categorical approach, noting that in People v. Saltray, 969 P.2d 729 (Colo.App. 1998), the Colorado Court of Appeals interpreted the statute to mean that a defendant’s threat need not be communicated to the victim. Accordingly, following Taylor, the felony menacing statute criminalizes a broader range of conduct than § 4B1.2(a)(1), so no conviction under that statute can serve as a crime of violence for the purposes of § 4B1.2(a)(1). Further, Saltray has been the law of Colorado for over 25 years and has never been disturbed by the Colorado Supreme Court. Therefore, the district court plainly erred in determining that Colorado felony menacing was a categorical match to the crime of violence definition in § 4B1.2(a)(1) and in calculating Venjohn’s sentence.

The sentence was reversed and the case was remanded for resentencing.

The full opinion is available at

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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