from the United States District Court for the District of
Kansas (D.C. No. 2:15-CR-20075-CM-1)
Redmond, Assistant Federal Public Defender (Melody Brannon,
Federal Public Defender, with him on the briefs), Office of
the Federal Public Defender for the District of Kansas,
Topeka, Kansas, appearing for Appellant.
A. Brown, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Office of the
United States Attorney for the District of Kansas, Topeka,
Kansas, appearing for Appellee.
BRISCOE, EBEL, and MATHESON, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
a direct criminal appeal in which Defendant-Appellant Wayne
C. Benton challenges his sentence. Benton pled guilty to one
count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The Presentence Investigation Report (PSR) concluded that
Benton's prior conviction for aggravated assault with a
deadly weapon, in violation of Kan. Stat. Ann. §
21-3410(a) (2006), was a crime of violence as defined in
United States Sentencing Guidelines (U.S.S.G.) §
4B1.2(a). Benton objected to this classification, which, if
applied, would result in a six-level enhancement. The
district court overruled his objection and sentenced him
under U.S.S.G. § 2K2.1(a)(4), which incorporates §
4B1.2(a). Benton now appeals. Exercising jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291,
December 15, 2015, Benton pled guilty to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The PSR concluded that
Benton's 2006 Kansas conviction for aggravated assault
with a deadly weapon was a crime of violence under §
4B1.2(a)(1) and that, as a consequence, Benton had a prior
offense which satisfied § 2K2.1(a)(4). Based on this and
the other findings in the PSR, Benton's total offense
level was 23 and his criminal history category was VI,
corresponding to a Guidelines range of 92 to 115 months.
rejecting Benton's objections to the PSR's
classification of his Kansas conviction for aggravated
assault with a deadly weapon as a crime of violence, the
district court held that his Kansas conviction
"necessarily require[d]" physical force, and was
therefore a crime of violence as defined by §
4B1.2(a)(1). Vol. II at 24. The district court sentenced
Benton to 115 months in prison and three years of supervised
release. Benton argues his aggravated assault with a deadly
weapon conviction does not qualify as a crime of violence
under § 4B1.2(a)(1), and that he should have had a base
offense of 14 and a corresponding Guidelines range of 51 to
a prior conviction qualifies as a "crime of
violence" under the Sentencing Guidelines is a question
of statutory interpretation that we review de novo.
United States v. Maldonado-Palma, 839 F.3d 1244,
1246 (10th Cir. 2016). "In interpreting a guideline, we
look at the language in the guideline itself, as well as the
interpretative and explanatory commentary to the guideline
provided by the Sentencing Commission." Id.
(quoting United States v. Reyes-Alfonso, 653 F.3d
1137, 1141 (10th Cir. 2011)).
§ 2K2.1(a) sets the base offense level for unlawful
possession of firearms at 20 if "the defendant committed
any part of the instant offense subsequent to sustaining one
felony conviction of either a crime of violence or a
controlled substance offense." § 2K2.1(a)(4)(A).
Application Note 1 of the Commentary to § 2K2.1 states
that: "'Crime of violence' has the meaning given
that term in § 4B1.2(a) and Application Note 1 of the
Commentary to § 4B1.2."
to that guideline provision, U.S.S.G. § 4B1.2(a)(1)
defines "crime of violence" as "any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that . . . has as an element the
use, attempted use, or threatened use of physical force
against the person of another." Benton contends his