FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:16-CR-00022-R-1)
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.
TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
TYMKOVICH, Chief Judge.
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).
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).
jurisdiction under 28 U.S.C. § 1291, we affirm
Kendall's sentence because all three of his convictions
constitute crimes of violence.
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. USSG § 4B1.1.
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).
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
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 ...