United States v. Devereaux, 91 F.4th 1361

Kenneth Devereaux was convicted of being a felon in possession of a firearm and sentenced to 60 months in prison.
In setting his sentence, the district court treated Devereaux’s prior conviction under 18 U.S.C. § 113(a)(6) (assault resulting in serious bodily injury) as a “crime of violence,” which increased his base offense level under the guidelines.
The court concluded that the prior assault conviction qualified as a crime of violence because it involved the use, attempted use, or threatened use of physical force.
Devereaux, the government, and the probation officer all argued that § 113(a)(6) does not constitute a crime of violence for guideline purposes because it can be committed recklessly, not just intentionally.
On appeal, both Devereaux and the government agreed the district court erred.
The Tenth Circuit reviewed the standard de novo and ultimately vacated Devereaux’s sentence, remanding for resentencing.

Issue	Devereaux's Argument	Government's Argument	Held
Whether a conviction under § 113(a)(6), which may be committed intentionally or recklessly, qualifies as a "crime of violence" for sentencing purposes	§ 113(a)(6) can be violated recklessly; reckless offenses don't qualify as crimes of violence under the guidelines	Agreed with Devereaux; reckless conduct does not meet the guidelines’ elements clause	No, § 113(a)(6) does not categorically require use of violent force and cannot be deemed a crime of violence
Whether § 113(a)(6) is divisible by mens rea, allowing use of the modified categorical approach	Not divisible; intentional and reckless assaults are means of violating a single offense	Agreed it is indivisible	Held that § 113(a)(6) is a single indivisible offense; only categorical approach applies
Whether the modified categorical approach should be applied to Devereaux’s prior conviction	Categorical approach only; no need to examine underlying facts	Agreed categorical approach controls	Categorical approach applies; modified categorical approach was error
Whether Devereaux's sentence should be vacated and remanded	Yes, with correction of base offense level	Agreed	Sentence vacated and remanded for resentencing

Mathis v. United States, 579 U.S. 500 (2016) (Outlines categorical vs. modified categorical approach for prior convictions)
Borden v. United States, 593 U.S. (2021) (Holding that crimes committed recklessly do not have as an element the use of physical force against another)
United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006) (Interpreted § 113(a)(6) as allowing conviction for intentional or reckless conduct)
United States v. Mann, 899 F.3d 898 (10th Cir. 2018) (Lists elements of § 113(a)(6), overruled in part by Borden)