505 F. App'x 755
10th Cir.2012Background
- Neal was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- District court treated Neal’s 2002 Colorado theft-from-the-person conviction as a crime of violence for § 4B1.2(a)(2) purposes, increasing his base offense level.
- District court relied on Patillar to classify the Colorado theft as a crime of violence.
- Neal argued Patillar should be reconsidered in light of Sykes v. United States; district court rejected the challenge.
- Jury trial occurred; Neal was sentenced to 102 months in prison after the court affirmed the § 4B1.2(a)(2) classification.
- This panel affirmed the district court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft from the person under Colorado law is a crime of violence. | Neal contends the Colorado offense is not a crime of violence. | District court, following Patillar, held it is a crime of violence. | Yes, it qualifies as a crime of violence. |
| How Sykes v. United States affects Begay-based analysis for the residual clause. | Patillar should not control post-Sykes. | Patillar remains valid; analysis under 4B1.2(a)(2) supports crime of violence. | Both Begay and Sykes analyses lead to the same conclusion—crime of violence. |
| Whether the residual-clause analysis under § 4B1.2(a)(2) supports Neal’s classification. | Residual-clause classification should be reevaluated. | Residual-clause risk analysis aligns with Sykes and supports classification. | Yes, the theft-from-a-person offense presents a serious risk and fits the residual clause. |
Key Cases Cited
- United States v. Patillar, 595 F.3d 1138 (10th Cir. 2010) (larceny from the person creates risk of confrontation; supports crime of violence)
- Begay v. United States, 553 U.S. 137 (2008) (purposeful, violent, and aggressive inquiry for certain crimes; influenced residual-clause analysis)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (categorical risk comparison; analogous risk to enumerated offenses governs residual clause)
- United States v. Rooks, 556 F.3d 1145 (10th Cir. 2009) (cites statutory-element-based approach to residual clause)
- James v. United States, 550 U.S. 192 (2007) (burglary risk of confrontation as a reason for inclusion in listed offenses)
- United States v. Sandoval, 696 F.3d 1011 (10th Cir. 2012) (post-Sykes treatment of non-strict-liability offenses)
- United States v. Smith, 652 F.3d 1244 (10th Cir. 2011) (reiterates risk-based approach after Sykes)
- People v. Warner, 801 P.2d 1187 (Colo. 1990) (Colorado court on danger/potential for confrontation in theft from a person)