877 F.3d 935
10th Cir.2017Background
- Defendant Abeyta pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- The PSR counted a prior Denver ordinance conviction (Den. § 38-71: damaging/defacing/destroying private property) as a countable conviction under U.S.S.G. § 4A1.2(c) because the district court found it also violated Colorado law.
- Counting the Den. § 38-71 conviction added 1 criminal-history point and, because Abeyta committed the federal offense while on probation for that conviction, an additional 2 points — raising his CHC from IV to V and increasing the guideline range.
- Abeyta objected, arguing the Denver ordinance is broader than the Colorado statutes cited by the government, so the ordinance is a local ordinance violation not covered by state criminal law and thus should be excluded under U.S.S.G. § 4A1.2(c)(2).
- The district court applied a “common sense” comparison and counted the conviction; the Tenth Circuit held the district court erred, applied the categorical approach, found Den. § 38-71 indivisible and broader than Colorado law, and concluded the conviction should not have been counted.
Issues
| Issue | Plaintiff's Argument (Gov’t) | Defendant's Argument (Abeyta) | Held |
|---|---|---|---|
| Whether a Den. § 38-71 municipal conviction is "also a violation under state criminal law" so it counts under U.S.S.G. § 4A1.2(c)(2) exception | Den. § 38-71 is equivalent to Colorado criminal mischief/defacing statutes and thus countable | Den. § 38-71 is broader (e.g., treats only written permission as a defense) and therefore is a local ordinance not necessarily covered by state law | The conviction does not necessarily violate Colorado law and therefore should not be counted |
| Proper method for comparing ordinance to state law: common-sense vs categorical approach | Urged common-sense comparison (similarity test) | Argued categorical comparison required (compare statutory elements) | Categorical approach applies; common-sense approach was improper |
| Whether Den. § 38-71 is divisible so the modified categorical approach can be used | Gov’t relied on municipal docket to show particular element (destruction) to justify modified approach | Denied divisibility and challenged reliance on docket entries as Shepard-inadequate | Den. § 38-71 is indivisible; docket sheet is not a Shepard-approved document, so modified approach not available |
| Effect on sentencing (harmless error?) | Counting was proper — sentence stands | Error affected guideline range and was not harmless | Error affected guideline calculation; remand to vacate and resentence |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes categorical approach for prior-offense comparisons)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means for divisible statutes)
- Descamps v. United States, 133 S. Ct. 2276 (modified categorical approach applies only to divisible statutes)
- Shepard v. United States, 544 U.S. 13 (limits documents usable to identify the factual basis of a prior plea)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (requires realistic probability, not mere possibility, when showing state would punish nongeneric conduct)
- United States v. Titties, 852 F.3d 1257 (applies categorical/Shepard analysis to municipal ordinance vs. state law comparison)