United States v. Bettcher
Opinion
We must decide whether Utah's second-degree aggravated-assault offense categorically qualifies as a "crime of violence" under the elements clause provided in the federal sentencing guidelines. 1 See *1042 U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (U.S. Sentencing Comm'n 2015). Because we hold that the Utah offense does qualify, we reverse the district court's contrary decision and remand for resentencing.
BACKGROUND
In May 2016, Anthony Bettcher pleaded guilty to possessing a firearm as a felon.
See
The PSR informed the district court that in 2013, the State of Utah had charged Bettcher with second-degree aggravated assault. At the time, 2 Utah law defined simple assault as follows:
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.
In the PSR, the probation officer recommended treating this earlier conviction as a crime of violence, which if adopted would enhance Bettcher's base offense level.
4
See
*1043
U.S.S.G §§ 2K2.1(a)(4)(A), 4B1.2(a)(1) (2015). At his sentencing hearing, Bettcher objected to the crime-of-violence enhancement. He argued that crimes capable of being committed recklessly don't categorically have as an element the use of physical force against another person, so they can't be crimes of violence under U.S.S.G. § 4B1.2(a)(1). And because the Utah legislature didn't specify a mens rea (or provide strict liability) for second-degree aggravated assault, "intent, knowledge, or recklessness ... suffice to establish criminal responsibility."
The government recognized that this circuit's precedents favored Bettcher's position that reckless crimes categorically aren't crimes of violence under the elements clause. But the government argued that our court's precedents had relied on a mistaken interpretation of
Leocal v. Ashcroft
,
The government appealed. It asks us to examine the viability of our earlier precedents and their foundations.
DISCUSSION
We review de novo whether the elements of an earlier offense establish a categorical crime of violence.
United States v. Williams
,
In
Leocal v. Ashcroft
, the Court first addressed what level of mens rea must attend the "use" of physical force against another person to qualify as a crime of violence.
*1044
In examining the meaning of "use" of physical force against another under
Twelve years later, in
Voisine v. United States
, the Court faced that question in deciding whether Maine reckless domestic assaults categorically included the use of physical force as defined within the meaning of "misdemeanor crime of domestic violence" in
The Court rejected Mr. Voisine's argument that Leocal "marks a dividing line between reckless and knowing conduct." Id. at 2279. Commenting on what mens rea the word "use" requires, the Court said that "use" "does not demand that the person applying force have the purpose [i.e., intent] or practical certainty [i.e., knowledge] that [the use of force] will cause harm, as compared with the understanding that it is substantially likely to do so [i.e., reckless]." Id. Significantly, in broad language in a section not particular to misdemeanor crimes of domestic violence, the Voisine Court pointedly addressed the issue Leocal reserved-whether the Court would group reckless harm (voluntary acts "undertaken with awareness of their substantial risk of causing injury") with intentional and knowing harm or, instead, with negligent and accidental harm. Id. at 2278-80. The Court chose the former, for a *1045 simple reason: "The harm such [reckless] conduct causes is the result of a deliberate decision to endanger another-no more an 'accident' than if the 'substantial risk' were 'practically certain.' " Id. at 2279.
Voisine
's application and understanding of
Leocal
overrides our contrary precedents classifying reckless harm with negligent or accidental harm. In our seminal case,
United States v. Zuniga-Soto
, we read
Leocal
to categorically exclude crimes capable of being committed recklessly from meeting the use-of-physical-force requirement.
Following that same approach, we held in
United States v. Duran
that crimes permitting a mens rea of recklessness could not categorically be crimes of violence under U.S.S.G. § 4B1.2(a).
Bettcher would have us confine
Voisine
to the misdemeanor-crime-of-domestic-violence context. By his account, "the fact that
Voisine
construed the word 'use' to include reckless conduct in the context of § 921 has no bearing on how the elements clause[s] of § 16, the ACCA, and § 4B1.2 should be interpreted." Br. for the Appellee at 18. Yet as noted in the preceding paragraph, our court has already extended
*1046
Voisine
's recklessness reasoning outside of the
Bettcher also argues that this panel has no authority to overrule its own precedent. We acknowledge that unlike the panels in
Pam
and
Mann
, which were subject to no governing precedent, our position on U.S.S.G. § 4B1.2(a) differs from
Duran
's.
See
Duran
,
And
Pam
itself eroded
Duran
. There, we applied
Voisine
to U.S.S.G. § 4B1.2(a) 's fraternal twin in the Armed Career Criminal Act,
*1047 See Ramey , 880 F.3d at 449 ("We see no reason why 'use' of force under the guidelines would mean something different from 'use' of force under the ACCA.").
Moreover, our approach is consistent with that taken in
United States v. Ontiveros
,
Finally, Bettcher invokes the rule of lenity. But this argument is unavailing. In
Voisine
, the Supreme Court rejected the same claim.
CONCLUSION
For the reasons given, we reverse and remand for resentencing consistent with this opinion.
On appeal, Bettcher has abandoned his district-court argument that Utah's second-degree aggravated assault is not categorically a crime of violence because it can include convictions for indirect uses of physical force, such as poisoning. Though this argument once had force, it no longer does.
See
United States v. Perez-Vargas
,
The Utah legislature has since amended its assault statutes.
See
S.B. 115, 61st Leg., Gen. Sess.,
The criminal information charges Bettcher with violating subsection (c). Bettcher later pleaded guilty to this offense and, in his written plea statement, admitted that on August 5, 2012, in Salt Lake County, he had held a throwing star in his hand and struck another man in the neck, causing serious bodily injury. But as we explain below, these facts are irrelevant to our analysis-applying a categorical approach, we focus solely on the elements of the underlying crime.
See
United States v. Kendall
,
The resulting six-level enhancement would have increased Bettcher's advisory-guideline range from 30-37 months to 57-71 months.
Compare
U.S.S.G. § 2K2.1(a)(4)(A) (setting a base offense level of 20 if the current offense followed an earlier crime-of-violence conviction),
with
Accordingly, we do not consider whether the element of serious bodily injury caused by the "use" of a dangerous weapon or other means or force likely to produce death or serious bodily injury,
Section 16(b), like U.S.S.G. § 4B1.2(a)(2) (2015), also contains a residual clause. But the government has not argued that Bettcher's Utah conviction qualifies as a crime of violence under the residual clause then found at U.S.S.G. § 4B1.2(a)(2). See U.S.S.G. § 4B1.2(a)(2) (2015) ("The term 'crime of violence' means any offense ... [that] involves conduct that presents a serious potential risk of physical injury to another.").
With one small difference-some crime-of-violence provisions require that the use of physical force be against the person
or property
of another-the otherwise-identical elements clause applies across a broad swath of federal statutes and sentencing guidelines.
See, e.g.
,
Though Mr. Leocal voluntarily drove his car while intoxicated, the Florida crime had no mens rea element tied to his causing bodily injuries.
Circuits have also done so with other sentencing provisions.
See, e.g.
,
United States v. Mendez-Henriquez
,
Pam
is particularly instructive given the definitional kinship between crimes of violence under U.S.S.G. § 4B1.2(a)(1), (2) and violent felonies under
Post-
Voisine
, other circuits have concluded that U.S.S.G. § 4B1.2(a)(1) does not categorically exclude crimes capable of being committed recklessly.
See, e.g.
,
United States v. Ramey
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellant, v. Anthony Wayne BETTCHER, Defendant - Appellee.
- Cited By
- 10 cases
- Status
- Published