United States v. Ash, 917 F.3d 1238

Dustin Ash pled guilty to two counts of being a felon in possession of a firearm; the PSR treated him as having one prior "crime of violence" and set a Guidelines base level accordingly, producing an 84–105 month range and a 94-month sentence.
The PSR treated a 2012 Kansas conviction for reckless aggravated battery as a crime of violence under U.S.S.G. § 4B1.2(a)(1); Ash objected because the Kansas statute permits reckless mens rea.
The government contended Ash had at least two qualifying prior crimes of violence, adding a 2001 Missouri second-degree robbery conviction and arguing for a higher base offense level; the district court rejected the robbery qualification but accepted the Kansas conviction as a crime of violence.
Both parties appealed: Ash appealed the Kansas ruling; the government cross-appealed the Missouri robbery ruling.
The Tenth Circuit reviewed de novo whether each prior conviction qualifies under the Guidelines’ elements clause (use/attempted use/threatened use of physical force against another).
The panel applied recent Supreme Court and circuit authority (notably Stokeling and Bettcher) to resolve whether Missouri second-degree robbery and Kansas reckless aggravated battery are categorically crimes of violence.

Issue	Ash's Argument	Government's Argument	Held
Whether Missouri second-degree robbery is a § 4B1.2(a)(1) crime of violence	Missouri statute can be satisfied by mere touching/snatch; thus not categorically violent	Statute requires overcoming victim resistance or use/threat of physical force; qualifies under Stokeling	Robbery qualifies as a crime of violence; conviction is categorically covered under elements clause
Whether Kansas reckless aggravated battery is a § 4B1.2(a)(1) crime of violence	Reckless mens rea falls below the "use" of force requirement and therefore cannot qualify	Voisine and intervening authority allow reckless mental state to satisfy "use" of force	Reckless aggravated battery qualifies as a crime of violence under the elements clause
Whether district court’s Guidelines calculation was correct given qualifying priors	Ash: only one qualifying prior → lower base level	Gov: at least two qualifying priors → higher base level	Court reversed in part: both prior convictions qualify → district court miscalculated range; remand for resentencing
Whether the Missouri statute can be met by mere snatching without resistance	Ash: caselaw shows convictions without resistance	Government: Missouri caselaw requires overcoming resistance or taking property attached to person	Court: Missouri cases distinguish snatching from robberies that overcome resistance; statute requires sufficient force to overcome resistance per Stokeling

Stokeling v. United States, 139 S. Ct. 544 (2019) (elements clause covers robbery requiring overcoming victim resistance)
Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless domestic assault can satisfy statutory "use" of force)
United States v. Bettcher, 911 F.3d 1040 (10th Cir. 2018) (Voisine compels treating reckless crimes as crimes of violence under § 4B1.2)
Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing pain or injury)
Leocal v. Ashcroft, 543 U.S. 1 (2004) ("use" of force requires active employment, not mere negligence)
United States v. Wray, 776 F.3d 1182 (10th Cir. 2015) (de novo review and application of the categorical approach to § 4B1.2)
United States v. Harris, 844 F.3d 1260 (10th Cir. 2016) (framework for identifying the minimum force required by state statute)
United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (Missouri second-degree robbery requires proof of physical force consistent with elements clause)
United States v. Bong, 913 F.3d 1252 (10th Cir. 2019) (application of Stokeling to distinguish robbery statutes that permit mere snatching from those that require overcoming resistance)