Case Information
*1 Before KELLY , HOLMES , and BACHARACH , Circuit Judges.
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KELLY , Circuit Judge.
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Defendant-Appellant, Tito Ontiveros, appeals from the district court judgment
resentencing him following the vacation of his original sentence as a result of the
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Supreme Court’s decision in Johnson v United States (“Johnson II”),
Background
Mr. Ontiveros was convicted by a jury of being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1), and possessing an unregistered firearm, 26 U.S.C.
§ 5861(d). After finding that Mr. Ontiveros qualified as an armed career criminal
under the Armed Career Criminal Act (ACCA) for having committed three prior
violent felonies, one of which fell under the “residual clause,” the district court
sentenced Mr. Ontiveros to 382 months’ imprisonment.
In 2015, the Supreme Court held that the ACCA’s residual clause is
unconstitutionally vague. Johnson II,
At resentencing, the new presentence report (PSR) recommended a base
offense level of 22 under § 2K2.1(a)(3) of the Sentencing Guidelines because Mr.
Ontiveros had one prior felony conviction that counted as a crime of violence. 2 R.
122. The government objected, arguing that the base offense level should be 26
under § 2K2.1(a)(1) because Mr. Ontiveros had two prior crimes of violence. 1 R.
347–48. It argued that Mr. Ontiveros’s 2007 conviction for Colorado second-degree
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assault, in violation of Colo. Rev. Stat. § 18-3-203(1)(g), also counted as a crime of
violence.
controlled the case.
The district court agreed with the government and, based on the higher offense level, sentenced Mr. Ontiveros to two concurrent 110-month sentences with a three- year term of supervised release. Mr. Ontiveros now appeals, arguing that Colorado second-degree assault is not a “crime of violence.”
Discussion
We review de novo whether a prior conviction is a “crime of violence” under
U.S.S.G. § 4B1.1(a). United States v. Williams,
On appeal, Mr. Ontiveros contends that Colorado second-degree assault does not
require the “use . . . of physical force,” so our analysis is twofold. First “we must identify
the minimum ‘force’ required by Colorado law for the crime of [second-degree assault],”
and second “determine if that force categorically fits the definition of physical force.”
United States v. Harris,
In Perez-Vargas, we considered whether Colorado third-degree assault qualified as
a crime of violence under the guidelines. We held that it did not because Colorado third-
degree assault focuses on the result (bodily injury) and not the means of inflicting injury.
Perez-Vargas,
[W]hile it is likely most third[-]degree assaults will involve the use or threatened use of physical force, thus qualifying the crime as a violent one under the [g]uidelines, the language of the statute allows for other possibilities. Indeed, at oral argument, Perez-Vargas’s counsel provided several examples of third[-]degree assault that would not use or threaten the use of physical force: recklessly shooting a gun in the air to celebrate, intentionally placing a barrier in front of a car causing an accident, or intentionally exposing someone to hazardous chemicals. One can imagine a number of other hypotheticals.
Id. at 1286. We held that “Colorado’s third[-]degree assault statute does not
necessarily include the use or threatened use of ‘physical force’ as required by the
[g]uidelines.” Id. at 1287. We adhered to Perez-Vargas in Rodriguez-Enriquez,
when we “reject[ed] the view that the word physical relates to the effect of the
force.”
The government argues, and we agree, that Perez-Vargas and Rodriguez- Enriquez relied on reasoning that is no longer viable in light of Castleman. In Castleman, the defendant was charged with being in possession of a firearm after being convicted of a misdemeanor crime of domestic violence. Castleman, 134 S. Ct. at 1408. During sentencing, the district court found that his prior conviction under Tennessee law for “having ‘intentionally or knowingly cause[d] bodily injury to’ the mother of his child” did not constitute a misdemeanor crime of domestic violence as used in 18 U.S.C. § 922(g)(9) because it did not have “as an element, the use . . . of physical force.” Id. at 1409. The Supreme Court disagreed and found that “knowing or intentional causation of bodily injury necessarily involves the use of physical force.” Id. at 1414 (emphasis added). The Court specifically rejected the contention that “one can cause bodily injury without the use of physical force—for example, by deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind.” Id. (internal quotation marks omitted). In so doing, it rejected our logic in Perez:
*7 [U]se of force . . . is not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under [petitioner’s] logic, after all, one could say that pulling the trigger on a gun is not a use of force because it is the bullet, not the trigger, that actually strikes the victim.
Id. at 1415 (internal quotation marks and brackets omitted). It concluded that “[i]t is impossible to cause bodily injury without applying force in the common-law sense.” Id. (emphasis added).
Mr. Ontiveros argues that Castleman’s logic is inapplicable because it concerned common-law battery in the context of a misdemeanor crime of violence. He distinguishes Perez-Vargas as involving “physical force” in the violent felony context, something that the Court in Castleman specifically refused to address. Id. at 1413.
Almost every circuit that has looked at this issue has determined that
Castleman’s logic is applicable to the “physical force” requirement as used in a
felony crime of violence. See United States v. Hill,
As the Fourth Circuit explained in Reid:
To be sure, Castleman did not construe ACCA’s force clause, and it expressly reserved the question of whether the causation of “bodily injury,” a term defined broadly under Tennessee law, would “necessitate violent force under Johnson’s definition of that phrase” in ACCA.134 S. Ct. at 1414 . But the Court’s formal reservation does not foreclose application of the relevant aspects of its reasoning, which did not rest on any distinction between § 922(g)(9) and ACCA’s force clause, § 924(e)(2)(B)(i). Indeed, the Court relied significantly on Johnson in rejecting a proffered limitation on the term “physical force.” See Castleman,134 S. Ct. at 1414 (“[A]s we explained in Johnson, ‘physical force’ is simply ‘force exerted by and though concrete bodies’”); cf. id. at 1416–17 (Scalia, J., concurring in part and concurring in the judgment) (“[I]t is impossible to cause bodily injury without using force ‘capable of’ producing that result”). Accordingly, by applying the combination of Johnson and Castleman, we conclude that ACCA’s phrase “use of physical force” includes force applied directly or indirectly.
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Reid,
Mr. Ontiveros next argues that even if Castleman applies, Colorado second-
degree assault requires no “use . . . of physical force” because one can be convicted
for a failure to act. Mr. Ontiveros relies principally on People v. Madison, 176 P.3d
793 (Colo. App. 2007), which affirmed a second-degree assault conviction of a son
for neglecting to care for his father. Id. at 798–99. We are not persuaded.
In Castleman, the Court was concerned with the common-law crime of battery
which can be committed “by simply omission to act where there is a duty to act.” 2
W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003) (treatise favorably
cited by the Court at
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B. Colorado Second-Degree Assault Requires “Violent Force”
The final part of our analysis is whether the minimum physical force required
for a conviction under Colorado second-degree assault is “violent force.” Johnson I,
Although the government also argues that Colorado second-degree assault is an enumerated offense under the career-offender enhancement, it is unnecessary to consider this argument because we affirm on the grounds stated above.
AFFIRMED.
Notes
[1] “‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” Commentary to U.S.S.G. § 2K2.1 (Definitions).
[2] Mr. Ontiveros’s citations to the First and Sixth Circuits as contrary authority are
unavailing. The First Circuit has yet to rule on this issue, United States v. Edwards,
[3] Although Castleman applied the modified categorical approach, the analysis does
not change because the element of conviction in that case was “intentionally or
knowingly caus[ing] bodily injury to” another, the same as in the current case. See
Castleman,
[4] When determining whether an offense is a crime of violence under § 4B1.2(a)(1),
the court may apply cases analyzing a violent felony under the ACCA. United States
v. Wray,
[5] Mr. Ontiveros’s reliance on United v. Mason, No. 17-7011,