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United States v. Ontiveros

United States Court of Appeals, Tenth Circuit

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
TITO ONTIVEROS, Defendant-Appellant.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:11-CR-00214-PAB-1)

          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"), 135 S.Ct. 2551 (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, 134 S.Ct. 1405 (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, 133 S.Ct. 2276, 2281-82 (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, 135 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. ยง 4B1.2(a)(1). ...


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