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United States v. Benton

United States Court of Appeals, Tenth Circuit

December 8, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WAYNE C. BENTON, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CR-20075-CM-1)

          Kirk 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.

          James 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.

          Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         This is 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, we affirm.

         I

         On 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.

         In 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 63 months.

         II

         Whether 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)).

         U.S.S.G. § 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."

         Turning 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 Kansas ...


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