U.S. v. Krejcarek

• Decision Date: 11 July 2006
• Docket Number: No. 04-1531.,04-1531.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse John KREJCAREK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

453 F.3d 1290

UNITED STATES of America, Plaintiff-Appellee, v. Jesse John KREJCAREK, Defendant-Appellant.

No. 04-1531.

United States Court of Appeals, Tenth Circuit.

July 11, 2006.

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Andrew A. Vogt, Assistant United States Attorney (William J. Leone, United States Attorney, with him on the brief), Denver, CO, for the Plaintiff-Appellee.

Michael J. Norton, Englewood, CO, for the Defendant-Appellant.

Before TACHA, Chief Judge, HOLLOWAY and HARTZ, Circuit Judges.

HOLLOWAY, Circuit Judge.

Jesse John Krejcarek challenges the classification of his two prior Colorado state third degree assault misdemeanor convictions as "crimes of violence" under the United States Sentencing Guidelines (U.S.S.G.) by the United States District Court for the District of Colorado. The classification resulted in Mr. Krejcarek having an enhanced base offense level of 26 instead of 20 as would have been the case without the enhancement. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The underlying facts are essentially undisputed. On May 4, 2004, a two-count indictment was filed in the United States District Court for the District of Colorado, charging Mr. Krejcarek in Count 1 with possession of a firearm by a restrained and prohibited person, in violation of 18 U.S.C. § 922(g)(1), and in Count 2 with possession of an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861.

On September 7, 2004, pursuant to a plea agreement, Mr. Krejcarek entered a plea of guilty to Count 1 of the indictment premised upon the Government's dismissal of Count 2 of the indictment; the filing by the Government of a motion to award a third point for acceptance of responsibility pursuant to United States Sentencing Guideline § 3E1.1(b); and the filing by the Government of a motion for a downward departure pursuant to 18 U.S.C. § 3553(e) and United States Sentencing Guideline § 5K1.1 for substantial assistance provided to the Government.

On December 6, 2004, the trial court accepted Mr. Krejcarek's plea of guilty as to Count 1 of the indictment and adjudged him guilty of violating 18 U.S.C. § 922(g)(1). The trial court also granted the Government's motion to dismiss Count 2 of the indictment and the Government's motion for a downward departure. However, even though Mr. Krejcarek received a reduction in the offense level calculation due to his acceptance of responsibility and for his substantial assistance, the reduction in offense level occurred after the trial court had increased Mr. Krejcarek's offense level by 6 points based upon the trial court's classification of his two prior third degree assault misdemeanor convictions under Colorado law as "crimes of violence" under the U.S.S.G. The classification of the two prior convictions as "crimes of violence" resulted in Mr. Krejcarek having an enhanced base offense level of 26¹ rather than 20, as Mr. Krejcarek argued to the trial court should be the case. The trial court overruled Mr. Krejcarek's objections and sentenced him to a term of imprisonment of 62 months under the U.S.S.G. for violating 18 U.S.C. § 922(g)(1) (Possession of a Firearm by a Restrained and Prohibited Person).

On appeal, Mr. Krejcarek alleges three errors by the District Court. First, he contends that the crimes involved in the two prior state convictions were not "crimes of violence," as defined by U.S.S.G. § 4B1.2(a), and that the trial court erred by classifying them as such. Second, he contends that the two prior third degree assault misdemeanor convictions should not have been used to enhance his base offense level because the pleas to the two misdemeanors were pursuant to a streamlined program in El Paso County, Colorado, known as the FAST TRACK program and he did not have the assistance of an attorney when he agreed to plead guilty to either of the two misdemeanor convictions. Thus he argues that his pleas of guilty were not voluntary and intelligent choices by him. Third, he contends that the district court committed Booker² error by using the two prior state convictions to enhance his sentence. We address each of these arguments in turn.

II. DISCUSSION

1. Colorado third degree assault misdemeanor as a "crime of violence"

Mr. Krejcarek contests the applicability of § 2K2.1(a)(1)³ of the Guidelines because, according to him, the offenses of which he was convicted are not crimes of violence as defined by U.S.S.G. § 4B1.2(a). However, he does not contest that the firearm involved in his offense was a sawed-off (i.e., short-barreled) shotgun of dimensions which are prohibited under 26 U.S.C. §§ 5845(a) and 5861. He also does not contest that his two convictions for third degree assault in Colorado fall within the definition of "felony conviction" (i.e., "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed").⁴ See U.S.S.G. § 2K2.1, Comment. n. 5.

Whether a statute defines a "crime of violence" for purposes of the Guidelines is a question of statutory construction, which this Court reviews de novo. United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003) (citing United States v. Riggans, 254 F.3d 1200, 1203 (10th Cir.), cert. denied, 534 U.S. 932, 122 S.Ct. 297, 151 L.Ed.2d 220 (2001); United States v. Spring, 80 F.3d 1450, 1463 (10th Cir. 1996)). U.S.S.G. § 4B1.2(a) defines "crime of violence" as follows:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year that —

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

In determining whether a state offense constitutes a crime of violence for purposes of the Guidelines, we "generally consider only the statutory elements of the crime." Vigil, 334 F.3d at 1217 (citing United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir.2001)). A "categorical" approach is employed that "omits consideration of the particular facts of the case." United States v. Munro, 394 F.3d 865, 870 (10th Cir.) (quoting Vigil, 334 F.3d at 1218), cert. denied, 544 U.S. 1009, 125 S.Ct. 1964, 161 L.Ed.2d 790 (2005); Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (determining whether burglary constitutes a predicate crime of violence under 18 U.S.C. § 924(e) "mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions"). See also U.S.S.G. § 4B1.2, Comment. n. 1.

However, if the statute's language "is ambiguous or broad enough to encompass both violent and nonviolent crimes, a court may look beyond the statute to certain records, such as `the terms of the charging document, the terms of a plea agreement or transcript of a colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.'" Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005); see also Vigil, 334 F.3d at 1218; United States v. Hernandez-Rodriguez, 388 F.3d 779, 783 (10th Cir., 2004); United States v. Smith, 10 F.3d 724, 734 (10th Cir.1993); United States v. Asberry, 394 F.3d 712, 715 (9th Cir.2005).

In the instant case, Mr. Krejcarek was twice convicted of third degree assault in violation of 18-3-204, Colorado Revised Statutes, which provides in pertinent part, "a person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person...." Bodily injury is defined in the Colorado Criminal Code as "physical pain, illness, or any impairment of physical or mental condition." Colo.Rev.Stat. § 18-1-901. According to the Colorado Supreme Court, the statutory definition of bodily injury encompasses any non-trifling injury that involves "at least some physical pain, illness or physical or mental impairment, however slight ..." People v. Hines, 572 P.2d 467, 470, 194 Colo. 284 (1978) (en banc).

Mr. Krejcarek argues that the facts of this case do not show that his prior convictions were for acts of violence. He also contends that the prior convictions did not involve the "intentional use of force" by him. See Aplt. Br. at 18. However, this court has held that a Colorado third degree assault is categorically a crime of violence under U.S.S.G. § 4B1.2(a). See United States v. Paxton, 422 F.3d 1203 (10th Cir.2005). As this court noted in Paxton, under the second prong of U.S.S.G. § 4B1.2(a), a prior conviction is also for a crime of violence if it involves conduct that "presents a serious potential risk of physical injury to another." Paxton at 1207 (citing U.S.S.G. § 4B1.2(a)(2)). Thus, the inquiry under this prong concerns the likelihood that the conduct necessary for conviction under the statute may cause physical harm to another.

The statute speaks in terms of probability — a "risk" — not certainty. Risk is by definition probable not certain; hence potential rather than actual. Thus, physical injury need not be a certainty for a crime to pose a serious risk of physical injury. Accordingly, the possibility that a crime may be completed without injury is irrelevant to the determination of whether it constitutes a crime of violence within the meaning of § 4B1.2.

Paxton at 1206 (quoting United States v. Vigil, 334 F.3d 1215, 1223 (10th Cir.2003)) (internal citations and quotation marks omitted).

Based on the Colorado statute and the Colorado Court's definition of third degree assault, it is clear that a third degree assault presents...