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United States v. Kendall

United States Court of Appeals, Tenth Circuit

December 11, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANTHONY KENDALL, also known as Cameron Anthony Kendall, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:16-CR-00022-R-1)

          Kyle E. Wackenheim, Research and Writing Attorney (William P. Earley, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, for Appellant.

          William E. Farrior, Assistant United States Attorney (Mark A. Yancey, United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Appellee.

          Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.

          TYMKOVICH, Chief Judge.

         Anthony Kendall pleaded guilty to forcibly assaulting a federal officer and inflicting a bodily injury in violation of 18 U.S.C. § 111(b). Kendall had two prior felony convictions: a federal conviction for aggravated assault while carrying a firearm and a conviction for assault on a District of Columbia police officer in violation of a local provision, D.C. Code 22-405(c).

         At sentencing, the district court held all three of these convictions supported a career offender sentence enhancement because each constituted a crime of violence under the United States Sentencing Guidelines (USSG). Kendall contends the district court erred in so classifying his conviction under 18 U.S.C. § 111(b) in this case and his prior conviction under D.C. Code 22-405(c).

         Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Kendall's sentence because all three of his convictions constitute crimes of violence.

         I. Background

         The Guidelines classify a defendant as a career offender if his current conviction constitutes a felony crime of violence and he has two prior convictions that likewise qualify as crimes of violence.[1] USSG § 4B1.1.

         This case arises from Kendall's conviction under 18 U.S.C. § 111(b) for forcibly assaulting a federal officer and inflicting a bodily injury. The presentence investigation report revealed that Kendall had two prior convictions, one for aggravated assault while armed and another for assault on a police officer in violation of D.C. Code § 22-405(c).

         Section 111 provides in relevant part,

(a) In general.--Whoever--
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 111 (emphasis added).

The D.C. Code provides,
(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1, 000, or both.
(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10, 000, or both.

D.C. Code § 22-405 (2009) (emphasis added).[2]

         II. Analysis

         Kendall concedes aggravated assault while armed qualifies as a crime of violence, but argues 18 U.S.C. § 111 and D.C. Code § 22-405 do not constitute crimes of violence. Specifically, Kendall claims one can violate both statutes without the use, attempted use, or threatened use of violent physical force-the degree of force required to commit a crime of violence. Without those two convictions, he cannot qualify as a career offender. As we ...


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