from the United States District Court for the District of
Colorado (D.C. No. 1:11-CR-00214-PAB-1)
R. Smith, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
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.
KELLY, HOLMES, and BACHARACH, Circuit Judges.
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.
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).
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.
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.
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
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). 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).
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. § 4B1.2(a)(1). ...