674 F. App'x 802
10th Cir.2017Background
- Crump pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); probation treated a 2009 Colorado robbery conviction as a prior "crime of violence" for Guidelines calculations.
- Probation assigned a base offense level of 24 under USSG § 2K2.1 based on two or more convictions qualifying as crimes of violence or controlled-substance offenses.
- Crump objected, arguing his Colorado robbery conviction did not categorically qualify as a "crime of violence" under USSG § 4B1.2(a)(1)’s elements clause.
- The district court sustained Crump’s objection, ruling Colorado robbery did not necessarily require the use or threatened use of physical force as defined in Johnson v. United States.
- The Tenth Circuit majority reversed, following its decision in United States v. Harris, concluding Colorado robbery has as an element the use or threatened use of physical force and thus qualifies under USSG § 4B1.2(a)(1); the case was remanded for resentencing.
- A dissenting opinion argued Colorado’s statutory terms "threats" and "intimidation" can encompass non-physical coercion, so the conviction does not categorically meet the Guidelines’ definition; the dissent also rejected relying on the Guidelines’ application note to resolve the issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado robbery categorically qualifies as a "crime of violence" under USSG § 4B1.2(a)(1) (elements clause) | Crump: Colorado robbery can be committed by threats/intimidation that need not involve force capable of causing physical pain/injury, so it does not categorically qualify. | Government: Colorado robbery requires a violent taking consistent with common law and thus involves the use or threatened use of physical force. | Held: Reversed district court — Colorado robbery qualifies under the elements clause per Tenth Circuit precedent in Harris. |
| Whether USSG § 4B1.2 application note enumerating "robbery" can be used to classify a state robbery as a "crime of violence" when the elements clause is not met | Crump: Application notes cannot override or contradict the guideline text; if the elements clause is not met, the note cannot be used to categorize the offense. | Government: Alternatively, robbery is listed in Application Note 1 and thus is an enumerated crime of violence. | Held: Majority did not reach this alternate argument because it resolved the case under the elements clause; dissent would reject using the application note to contradict the guideline text. |
Key Cases Cited
- United States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (held Colorado robbery involves use/threat of physical force)
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as force capable of causing physical pain or injury)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (articulated the "realistic probability" test for categorical analysis)
- United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011) (Guidelines commentary is authoritative unless inconsistent with the guideline)
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary binding unless unconstitutional, statutorily precluded, or inconsistent)
- United States v. Rollins, 836 F.3d 737 (7th Cir. 2016) (refused to rely on application note to categorize state robbery as a crime of violence when elements clause not met)
- United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016) (similar holding on limits of application note)
- United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (applied limits on using application note to classify state robbery)