United States v. Ontiveros
875 F.3d 533
| 10th Cir. | 2017Background
- Defendant Tito Ontiveros was convicted of being a felon in possession of a firearm and possession of an unregistered firearm; originally sentenced as an Armed Career Criminal to 382 months.
- After the Supreme Court’s decision in Johnson v. United States (Johnson II) invalidated ACCA’s residual clause, Ontiveros moved under 28 U.S.C. § 2255; the district court vacated his sentence and ordered resentencing.
- At resentencing, the PSR recommended a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) based on one prior crime of violence; the government argued for level 26 under § 2K2.1(a)(1), asserting Ontiveros had two prior crimes of violence.
- The dispute turned on whether Ontiveros’s 2007 Colorado second-degree assault conviction (Colo. Rev. Stat. § 18-3-203(1)(g): intent to cause bodily injury causing serious bodily injury) qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a)(1).
- Ontiveros relied on Tenth Circuit precedent (Perez-Vargas, Rodriguez-Enriquez) arguing the statute focuses on result and need not involve physical force; the government relied on Supreme Court decisions (Castleman and Johnson) to argue the statute requires (violent) physical force.
- The district court adopted the government’s view, applied base level 26, and sentenced Ontiveros to concurrent 110-month terms; Ontiveros appealed and the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado second-degree assault is a “crime of violence” under U.S.S.G. § 4B1.2(a)(1) | Government: statute’s element (intentional causation of serious bodily injury) necessarily involves use of physical force, including indirect force; thus qualifies | Ontiveros: statute focuses on result (serious bodily injury) and can be satisfied without use of physical force (relying on Perez-Vargas and omissions) | The court held it is a crime of violence: Colorado second-degree assault requires physical force and that force is “violent force.” |
| Whether Castleman’s reasoning (that causation of bodily injury involves physical force) applies to felony violent-force analysis | Government: Castleman’s logic applies to violent-felony/ACCA/guidelines contexts; indirect force qualifies | Ontiveros: Castleman addressed misdemeanor battery and did not resolve violent-felony force requirement; Perez-Vargas still controls | The court applied Castleman (and Johnson) to hold indirect force counts; Perez-Vargas’s contrary reasoning is no longer good law. |
| Whether convictions based on omissions (failure to act) can avoid the physical-force requirement | Ontiveros: Colorado cases show convictions based on omission (e.g., neglect) so no force required | Government: Castleman recognized omissions can constitute battery but still held causing bodily injury necessarily applies force; omissions that cause injury still involve force in the common-law sense | The court rejected Ontiveros’s omission argument, holding that even omissions that cause serious bodily injury implicate physical force. |
| Whether the minimum force required meets Johnson’s “violent force” standard | Ontiveros: argues the statute might require less than violent force or none | Government: intentional causation of serious bodily injury exceeds mere offensive touching and meets Johnson’s violent-force standard | The court held the statute requires intentional causation of serious bodily injury, which satisfies Johnson’s “violent force” (force capable of causing pain or injury). |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Johnson v. United States, 559 U.S. 133 (2010) (held “physical force” means violent force)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (causing bodily injury necessarily involves use of physical force)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach controls when statute has a single set of elements)
- United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005) (earlier Tenth Circuit decision finding Colorado assault did not necessarily involve physical force; court here overruled that reasoning)
- United States v. Reid, 861 F.3d 523 (4th Cir. 2017) (applied Castleman and Johnson to hold indirect force counts for violent-felony analysis)