United States v. Bettcher
911 F.3d 1040
10th Cir.2018Background
- Anthony Bettcher pleaded guilty to being a felon in possession of a firearm; at sentencing the PSR identified a prior Utah second-degree aggravated-assault conviction.
- Utah second-degree aggravated assault (as charged) required proof of simple assault plus (1) use of a dangerous weapon or other means likely to produce death/serious injury and (2) resulting serious bodily injury.
- Utah law supplied no specific mens rea for aggravated assault; state gap-filler mens rea (intent, knowledge, or recklessness) allowed convictions based on recklessness.
- The probation officer recommended a Guidelines enhancement treating the Utah conviction as a "crime of violence" under U.S.S.G. § 4B1.2(a)(1); Bettcher objected, arguing reckless offenses are not categorically crimes of violence under the elements clause.
- The district court agreed with Bettcher and declined the enhancement; the government appealed, arguing recent Supreme Court authority undermines Tenth Circuit precedent that excluded reckless offenses.
- The Tenth Circuit panel reviewed de novo, concluded Voisine changed the interpretation of Leocal, held that offenses punishable as reckless can qualify under the Guidelines elements clause, reversed and remanded for resentencing.
Issues
| Issue | Bettcher's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Utah second-degree aggravated assault categorically is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) | Reckless mens rea means the statute reaches non‑violent/accidental conduct and thus cannot categorically satisfy the "use of physical force" element | Voisine shows "use" can encompass reckless (volitional) conduct; prior Tenth Circuit cases excluding recklessness are no longer controlling | The conviction qualifies as a crime of violence; reversal and remand for resentencing |
| Whether Voisine is limited to misdemeanor domestic‑violence context or applies broadly to elements clauses | Voisine should be confined; does not control other elements‑clause contexts | Voisine interprets Leocal and its reasoning extends to Guidelines and other federal elements clauses | Voisine governs; Tenth Circuit precedent classifying recklessness with negligence is overruled to the extent inconsistent |
| Whether this panel can depart from prior Tenth Circuit precedent (e.g., Zuniga‑Soto, Duran) | Panel cannot overturn prior panel precedent; rule of stare decisis and lenity favor excluding recklessness | Supreme Court intervening decisions (Voisine) undermined the foundation of prior panel precedent, allowing change without en banc review | Voisine is an intervening Supreme Court decision that invalidates prior circuit reasoning; panel applies Voisine and departs from Duran/Zuniga‑Soto |
| Whether the rule of lenity requires resolving ambiguity in favor of Bettcher | Statutory ambiguity favors defendant | Voisine and subsequent circuit decisions make the law sufficiently plain that lenity does not apply | Lenity rejected; Voisine leads to clear result that reckless assaults qualify |
Key Cases Cited
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (interpreting "use" of physical force in § 16 and excluding negligent/accidental conduct)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (holding reckless domestic assaults qualify as "use" of physical force for federal firearms prohibition)
- Castleman v. United States, 572 U.S. 157 (2014) (construing "physical force" to encompass acts causing bodily injury)
- United States v. Zuniga‑Soto, 527 F.3d 1110 (10th Cir. 2008) (prior Tenth Circuit holding that recklessness falls with accidental conduct under Leocal)
- United States v. Duran, 696 F.3d 1089 (10th Cir. 2012) (applied Zuniga‑Soto to exclude reckless mens rea from § 4B1.2(a))
- United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017) (overruling earlier circuit precedent where Supreme Court decisions undermined their reasoning)
- United States v. Mann, 899 F.3d 898 (10th Cir. 2018) (applying Voisine to hold reckless assaults can be crimes of violence under related federal provisions)