United States v. Armijo
2011 U.S. App. LEXIS 14219
| 10th Cir. | 2011Background
- Armijo pled guilty to one count of felon in unlawful possession of a firearm (18 U.S.C. § 922(g)(1)).
- PSR set base offense level at 24 under § 2K2.1(a)(2) for two prior felonies for crimes of violence: 1998 felony menacing and 2002 manslaughter.
- District court held both Colorado convictions are crimes of violence for § 2K2.1(a)(2).
- Armijo argued neither conviction qualified as a crime of violence; district court rejected.
- On appeal, Armijo challenged the classification of both convictions and raised a first-time stale-conviction issue regarding the menacing conviction; court remanded for resentencing.
- Court to resolve whether the manslaughter conviction is a crime of violence and whether the menacing conviction is stale on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado felony menacing is a crime of violence under § 4B1.2(a)(1). | Armijo; argues menacing may not qualify given Rodriguez-Enriquez/Shawn distinctions. | Armijo; contends Herron controls but Rodriguez-Enriquez and Shawn limit the classification. | Yes; Colorado felony menacing is a crime of violence for § 4B1.2(a)(1). |
| Whether Colorado manslaughter is a crime of violence under § 4B1.2(a). | Armijo; asserts manslaughter is encompassed by application note 1 or 4B1.2(2). | Armijo; relies on Zuniga-Soto and text to argue recklessness-based manslaughter is not violence. | No; Colorado manslaughter is not a crime of violence under § 4B1.2(a). |
| Whether Armijo's felony menacing conviction is stale for purposes of § 2K2.1 and § 4A1.2(e). | State-conviction timing may render it stale; US agrees it may be stale. | Argues timing could make it count if not stale under the revocation/continuation scenario. | Remanded to resolve staleness on full record; issue not decided here. |
Key Cases Cited
- United States v. Herron, 432 F.3d 1127 (10th Cir. 2005) (Colorado felony menacing is a crime of violence under § 4B1.2(a))
- Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) (drugging victim not engaging physical force; limited to surreptitious drugging cases)
- People v. Shawn, 107 P.3d 1033 (Colo. App. 2004) (HIV as deadly weapon; constitution of deadly weapon in context of menacing)
- United States v. McConnell, 605 F.3d 822 (10th Cir. 2010) (guideline interpretation of crime of violence; reliance on § 4B1.2(a))
- United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) (recklessness not enough for ‘use of force’ in § 4B1.2; mens rea requirements)
- United States v. Williams, 559 F.3d 1143 (10th Cir. 2009) (residual clause requires purposeful/violent conduct)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (requires purposeful, violent conduct for residual clause; risk-based approach)
- United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (record of state action not binding; real-world effect governs)