United States v. Ontiveros

• Decision Date: 07 November 2017
• Docket Number: No. 16-1362,16-1362
• Citation: 875 F.3d 533
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tito ONTIVEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 533

UNITED STATES of America, Plaintiff-Appellee,

v.Tito ONTIVEROS, Defendant-Appellant.

No. 16-1362

United States Court of Appeals, Tenth Circuit.

FILED November 7, 2017

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Emily M. May, Assistant United States Attorney, and Robert C. Troyer, Acting United States Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before KELLY, HOLMES, and BACHARACH, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant, Tito Ontiveros, appeals from the district court judgment resentencing him following the vacation of his original sentence as a result of the Supreme Court’s decision in Johnson v. United States ("Johnson II"), ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

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. 1 R. 340. The sentence was affirmed on direct appeal. United States v. Ontiveros, 550 Fed.Appx. 624 (10th Cir. 2013).

In 2015, the Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. Johnson II, 135 S.Ct. at 2563. Mr. Ontiveros filed a 28 U.S.C. § 2255 motion to vacate his prior sentence. 1 R. 327–31. The district court vacated his sentence, and scheduled him for resentencing. 1 R. 340–41.

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 assault, in violation of Colo. Rev. Stat. § 18-3-203(1)(g), also counted as a crime of violence. 1 R. at 349. Mr. Ontiveros conceded that one of his prior convictions constituted a crime of violence but argued, relying on our decision in United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), that his Colorado second-degree assault conviction did not. 1 R. 379–84. The government countered that the Supreme Court’s decision in United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), 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, 559 F.3d 1143, 1146 (10th Cir. 2009).¹ Section 2K2.1(a)(1) of the guidelines indicates a base level of 26 for a firearm conviction "subsequent to sustaining at least two felony convictions of ... crime[s] of violence." U.S.S.G. § 2K2.1(a)(1). The guidelines define a "crime of violence" as any federal or state offense "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...." Id. § 4B1.2(a)(1).

To determine whether a prior conviction qualifies as a crime of violence, we apply the categorical approach if the criminal statute under which the defendant was charged contains only one set of elements. Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281–82, 186 L.Ed.2d 438 (2013). A person commits second-degree assault in Colorado if "[w]ith intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another." Colo. Rev. Stat. § 18-3-203(1)(g) (2016). Given only one set of elements, we therefore apply the categorical approach. Thus, we consider only the statutory definition, not the underlying facts of conviction. Descamps, 133 S.Ct. at 2283. Our inquiry is confined to whether Colorado second-degree assault statute "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). "The meaning of ‘physical force’ ... is a question of federal law," while state law provides the elements of the crime of conviction. Johnson v. United States (Johnson I ), 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

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, 844 F.3d 1260, 1264 (10th Cir. 2017). When construing the minimum culpable conduct required for a conviction, "such conduct only includes that in which there is a ‘realistic probability, not a theoretical possibility’ the state statute would apply." Id. State supreme court decisions provide the best indication of a " ‘realistic probability,’ supplemented by decisions from the intermediate-appellate courts." Id.

A. Colorado Second-Degree Assault Requires Physical Force

Mr. Ontiveros first argues that because the elements of Colorado second-degree assault focus on the result of the conduct (serious bodily injury), not the conduct itself, the offense does not necessarily require a showing of physical force. He relies upon our decisions in United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), and United States v. Rodriguez–Enriquez, 518 F.3d 1191 (10th Cir. 2008). We have previously questioned Perez-Vargas and Rodriguez-Enriquez, see United States v. Hammons, 862 F.3d 1052, 1056 n.5 (10th Cir. 2017), but we now hold that Perez-Vargas’s logic on this point is no longer good law in light of Castleman.

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, 414 F.3d at 1285. As we explained,

[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." 518 F.3d at 1194. We held that "the adjective physical must refer to the mechanism by which the force is imparted." Id.

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:

[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.

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