Fifth Circuit Announces Louisiana Aggravated Assault With Firearm Still Not ‘Crime of Violence’ After 2012 Amendment for Purposes of Sentencing Guidelines
by Matt Clarke
The U.S. Court of Appeals for the Fifth Circuit held that a prior conviction for aggravated assault with a firearm under Louisiana state law, La. R.S. 14:37.4 is not categorically a “crime of violence” as defined by U.S. Sentencing Guidelines § 4B1.2(a) and therefore could not be used to increase the base offense level in a federal prosecution pursuant to Guidelines § 2K2.1(a)(4), despite the 2012 amendment to the state statute.
In the U.S. District Court for the Western District of Louisiana, Kinte Vaness Garner, Jr., pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). His pre-sentencing report “set his base offense level at twenty, pursuant to U.S.S.G. § 2K2.1(a)(4), because it designated his prior conviction under La. R.S. 14:37.4 a ‘crime of violence’ as defined by U.S.S.G. § 4B1.2(a).” Garner objected, citing United States v. Young, 809 F. App’x 203 (5th Cir. 2020), which held that because “Louisiana aggravated assault with a firearm can be achieved through negligent conduct, it does not constitute a violent felony” for purposes of the sentencing enhancement. As such, Garner argued his base level should be 14.
The Government disagreed, arguing that the 2012 amendment to La. R.S. 14:37.4 negated “any negligence element that may have been possible” under the statute. It added that Young involved a pre-2012 conviction, so it and cases based upon it are “irrelevant” to the present case. The District Court agreed with the Government’s position and sentenced Garner to 42 months’ imprisonment, using the base offense level of 20. Garner appealed.
The Court observed that the sole issue for it to resolve is “[w]hether L.a. R.S. 14:37.4, after its 2012 amendment, no longer constitutes a ‘crime of violence’ as defined in U.S.S.G. § 4B1.2(a).” To determine whether the statute satisfies the definition of “crime of violence,” the Court stated that it must apply the categorical approach, which looks “only to the statutory — i.e., the elements — of a defendant’s prior offenses, and not to the particular facts underlying those convictions.” Descamps v. United States, 570 U.S. 254 (2013). If the statute criminalizes a broader range of conduct than the Sentencing Guidelines, then the statute is not categorically a crime of violence and, thus, can’t be used as a predicate offense in calculating an advisory sentence, the Court stated. Id.
An offense that can be committed negligently or recklessly isn’t categorically one that requires “the use of physical force against the person of another.” Borden v. United States, 141 S. Ct. 1817 (2021); see United States v. Greer, 20 F.4th 1071 (5th Cir. 2021). The Court explained that the Young Court held that L.a. R.S. 14:37.4 criminalized negligent conduct. The 2012 amendment to the statute changed the definition of “aggravated assault with a firearm” from “an assault committed by the discharge of a firearm” to “an assault committed with a firearm.” 2012 La. Act 320. The Government argued that by deleting the specific discharge element, the Legislature removed “the only requirement … that a defendant could negligently commit.”
The Court rejected that argument, stating that Louisiana courts haven’t interpreted the amendment in that manner. For example, in State v. Williams, 236 So. 3d 604 (La Ct. App. 1 Cir. 2017), the court stated that negligent discharge still satisfies the statute even after the 2012 amendment. Thus, the Court concluded that that the “2012 amendment thus does not appear to have altered Louisiana courts’ application of the statute to negligent and reckless conduct” and ruled that a conviction under the statute, as amended, still does not constitute a crime of violence for purposes of the Sentencing Guidelines.
Accordingly, the Court vacated Garner’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Garner, 28 F.4th 678 (5th Cir. 2022).
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