United States v. Dallas Maynard
Opinion
Dallas Maynard pleaded guilty to possessing an explosive as a felon. The previous felony? Assault under extreme emotional disturbance in Kentucky. The consequence? An increased base offense level under the Sentencing Guidelines. Agreeing with the district court that this prior conviction qualifies as a crime of violence, we AFFIRM Maynard's sentence.
I.
Maynard and others stole over 700 pounds of blasting agent from a Revelation Energy job site. A grand jury indicted him on multiple counts and he pleaded guilty to one-possessing an explosive as a felon, under
Maynard contested this scoring. The base offense level should be 16, he argued, because neither of the two underlying felony convictions is a "crime of violence." Although the district court sustained Maynard's objection to the West Virginia offense, it overruled his objection regarding the Kentucky one. With one felony conviction for a crime of violence instead of two, Maynard's base offense level dropped to 20, see U.S.S.G. § 2K1.3(a)(2) ; the court ultimately sentenced him to a below-Guidelines 108 months' imprisonment. Maynard appeals the district court's treating his Kentucky assault under extreme emotional disturbance as a crime of violence and asks us to remand for resentencing.
II.
We give fresh review to the district court's determination that a prior conviction constitutes a crime of violence.
United States v. Denson
,
*775
To determine whether the Sentencing Guidelines' elements clause covers the Kentucky assault Maynard challenges, we apply a categorical approach and focus on the statutory definition of the offense.
See
Patterson
,
That's what we have here. Kentucky's assault under extreme emotional disturbance statute reads:
(1) In any prosecution under KRS 508.010 [first-degree assault], 508.020 [second-degree assault] or 508.030 [fourth-degree assault] in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.
Ky. Rev. Stat. § 508.040. Maynard argues that a defendant need not have used force to be convicted of this crime. But the statute's plain language requiring that the defendant intentionally cause a physical injury in committing the underlying assault reads otherwise.
We also make quick work of Maynard's contention that the statute excuses the intentional nature of the assault and therefore somehow does not qualify as a crime of violence. Holding that assault under extreme emotional disturbance is a violent felony under the ACCA,
United States v. Colbert
explained that "extreme emotional disturbance does not negate the intent elements of first or second degree assault under Kentucky law."
United States v. Knox
closes the door.
III.
We AFFIRM.
CONCURRENCE
HELENE N. WHITE, Circuit Judge, concurring.
I concur because I believe Maynard's arguments are foreclosed by the majority decision in
*776
United States v. Anderson
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Dallas T. MAYNARD, Defendant-Appellant.
- Cited By
- 6 cases
- Status
- Published