by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that a conviction for assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is not a qualifying predicate “crime of violence” for purposes of U.S. Sentencing Guidelines (“USSG”) § 2K2.1(a)(3).

Kenneth Devereaux pleaded guilty to being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The U.S. District Court for the District of Colorado, against the recommendation of the U.S. Probation Office and the Government, ruled that § 113(a)(6) is “divisible,” – that is, the statute proscribes two offenses: (1) intentional and (2) reckless assault resulting in serious injury. The District Court then used the “modified categorical approach” to “peek” at Devereaux’s indictment and plea agreement in accordance with Shepard v. United States, 544 U.S. 13 (2005), to determine he had committed intentional assault.

The District Court further determined the intentional assault “had as an element the use, attempted use, or threatened use of physical force against the person of another” that qualified as a predicate crime of violence under USSG § 2K2.1(a)(3). Applying the Guideline, the District Court increased Devereaux’s base offense level from 20 to 22, which increased his advisory imprisonment range from 57 to 71 months to 70 to 87 months. The District Court then imposed a 60-month term of imprisonment. Devereaux timely appealed.

The Tenth Circuit observed the “question we address is whether the alternate mentes reae that can violate § 113(a)(6) – intentional (purposeful and knowing) and reckless – are elements of separate assault offenses or are instead different factual means to commit a single, indivisible assault offense.” (Note: “mentes reae” is the plural of “mens rea.”)

Section 113(a) reads: “Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows….” There are then seven separate subsections proscribing assault within various different attendant circumstances. Of relevance here is subsection (6): “Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.” § 113(a)(6).

To determine if a prior conviction is a qualifying predicate crime of violence, courts use the categorical approach. United States v. Maloid, 71 F.4th 795 (10th Cir. 2023). “The categorical approach focuses on the elements of the prior offense of conviction and not on the defendant’s actual conduct underlying that prior conviction.” Mathis v. United States, 579 U.S. 500 (2016). “Elements” are the “constituent parts” of a crime’s legal definition – the things that the “prosecution must prove to sustain a conviction.” Id. “If some conduct that would be a crime under the statute [of prior conviction] would not be a ‘crime of violence’ under § 4B1.2(a), then any conviction under that statute will not qualify as a ‘crime of violence’ for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to a defendant’s prior conviction was in fact violent.” Maloid.

However, “[w]hen a criminal statute ‘lists elements in the alternative, and thereby define[s] multiple crimes,’ a court applies the modified categorical approach.” Mathis. “Under that approach, a sentencing court [first] looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. “After making that determination, the court can then apply the categorical approach to determine whether that offense of conviction qualifies as a ‘crime of violence.’” Id.

However, the U.S. Supreme Court has recognized a type of criminal statute that “sets forth, not ‘multiple elements’ that create separate offenses, but instead ‘enumerates various factual means of committing a single element.’” Mathis. For example, a statute may proscribe the “use of a deadly weapon” in committing a particular offense and then enumerate a “knife, gun, bat, or similar weapon” that would qualify as a “deadly weapon.” Id. In that situation, only the categorical approach would be used, regardless of the “factual means” the defendant employed to commit the “single indivisible offense.” Mathis.

To determine whether a statute is divisible – proscribing more than one offense and calling for the modified categorical approach – or whether a statute is indivisible – proscribing only one offense but enumerating multiple methods by which the offense may be committed and calling for the categorical approach, Mathis suggests, inter alia, that courts look to case law interpreting the statute, the Court explained.

The Tenth Circuit has recognized that a § 113(a)(6) assault is an offense that can be committed either intentionally or recklessly via mentes reae of “(1) purpose, (2) knowledge, (3) recklessness, and (4) negligence.” United States v. Benally, 19 F.4th 1250 (10th Cir. 2021); see also United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006). Consequently, only the categorical approach applies because the statute can be violated with a mens rea of recklessness, and thus, a conviction under it does not qualify as a “crime of violence.” See Borden v. United States, 141 S. Ct. 1817 (2021) (plurality). That is, a qualifying predicate “crime of violence” must involve force “directed at the person of another,” but “recklessness” is conduct not directed at anyone in particular. Id.

Thus, the Court concluded that § 113(a)(6) provides for a single indivisible assault offense that can be violated by different mentes reae, “a § 113(a)(6) conviction categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another … as required by USSG §§ 4B1.2(a)(1), which § 2K2.1(a)(3) incorporates.” The Court ruled that the District Court erred in treating Devereaux’s prior § 113(a)(6) conviction as a “crime of violence.”

Accordingly, the Court vacated Devereaux’s sentence and remanded for resentencing consistent with the Court’s opinion. See: United States v. Devereaux, 91 F.4th 1361 (10th Cir. 2024).

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