United States v. Kendall
876 F.3d 1264
10th Cir.2017Background
- Defendant Anthony Kendall pleaded guilty to 18 U.S.C. § 111(b) for forcibly assaulting a federal officer and inflicting bodily injury.
- He had two prior felonies: a federal aggravated-assault-with-a-firearm conviction and a D.C. Code § 22-405(c) conviction for assault on a police officer causing significant bodily injury or creating a grave risk.
- The district court applied the Sentencing Guidelines’ career-offender enhancement (USSG § 4B1.1), treating the § 111(b) conviction and both prior convictions as “crimes of violence.”
- Kendall challenged the classification of § 111(b) and D.C. § 22-405(c) as crimes of violence, arguing each can be violated without the use, attempted use, or threatened use of violent physical force.
- The Tenth Circuit applied the categorical and modified categorical approaches, concluded both statutes (as charged) meet the Guidelines’ definition of a crime of violence, and affirmed the career-offender designation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18 U.S.C. § 111(b) is a "crime of violence" under USSG § 4B1.2 | § 111(b) can be violated without the use/attempted use/threatened use of violent physical force | § 111(b) (assault causing bodily injury or with a deadly weapon) necessarily requires violent physical force | § 111(b) (as charged) is a crime of violence; assault causing bodily injury and assaults with deadly weapons satisfy Johnson’s definition of violent force |
| Whether D.C. Code § 22-405(c) is a "crime of violence" | § 22-405(c) can be violated by indirectly causing injury, so may not require violent physical force | Causing significant bodily injury or committing a violent act creating a grave risk always involves violent physical force | § 22-405(c) is a crime of violence; both prongs (causing significant injury; violent act creating grave risk) require violent force |
| Whether the court should use the categorical or modified categorical approach for these statutes | Kendall argued indivisibility of statutes (limiting modified categorical use) | Court: statutes are divisible as a whole; subsections at issue are indivisible, so the modified categorical approach identifies which subsection was charged, then the categorical comparison applies | The court applied the modified categorical approach to identify the charged subsections and the categorical approach thereafter |
| Whether pre-Johnson/related precedent (e.g., Perez-Vargas) allows indirect-force convictions to avoid the crime-of-violence label | Relied on Perez-Vargas to argue indirect causation can avoid use of violent force | The Supreme Court’s later guidance in Castleman and Johnson rejects Perez-Vargas’s distinction; indirect application of force can still be a use of force | Perez-Vargas’s contrary rule is effectively abrogated by Castleman and Johnson; indirect force can satisfy the violent-force requirement |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (defining "physical force" as "violent force")
- Mathis v. United States, 136 S. Ct. 2243 (categorical/element-vs-means analysis for divisible statutes)
- Descamps v. United States, 133 S. Ct. 2276 (modified categorical approach limits)
- United States v. Castleman, 134 S. Ct. 1405 (knowing or intentional application of force qualifies even if harm occurs indirectly)
- United States v. Feola, 420 U.S. 671 (intent-to-assault requirement under § 111)
- United States v. Taylor, 843 F.3d 1215 (10th Cir.) (assault with deadly weapon qualifies as a crime of violence)
- United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir.) (pre-Johnson decision distinguishing indirect injury; discussed and deemed abrogated)
- United States v. Hathaway, 318 F.3d 1001 (10th Cir.) (§ 111 contains separate offenses and is divisible as a whole)