from the United States District Court for the District of
Wyoming (D.C. No. 1:17-CR-00057-ABJ-1)
C. Arceci, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
M. Conder, Assistant United States Attorney (Mark A.
Klaassan, United States Attorney, with him on the briefs),
Lander, Wyoming, for Plaintiff-Appellee.
HARTZ, MORITZ, and EID, Circuit Judges.
Ronald Detro Winder is serving a three-year prison sentence
for possession of firearms by a convicted felon. See
18 U.S.C. § 922(g)(1). He appeals his sentence, arguing
that the district court erred by concluding that his prior
conviction in Wyoming for felony interference with a peace
officer in 2012, see Wyo. Stat. Ann. §
6-5-204(b) (2012), was a crime of violence under §
4B1.2(a)(1) (2016) of the United States Sentencing
Guidelines. Our review is de novo. See United States v.
Ontiveros, 875 F.3d 533, 535 (10th Cir. 2017).
Exercising jurisdiction under 28 U.S.C. § 1291, we
Sentencing Guidelines define crime of violence to
include "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." USSG § 4B1.2(a)(1) (emphasis added).
This provision is commonly referred to as the "elements
clause." See, e.g., United States v.
Ash, 917 F.3d 1238, 1240 (2019). The Armed Career
Criminal Act (ACCA) uses almost identical language in
defining violent felony. See 18 U.S.C.
§ 924(e)(2)(B) (defining violent felony to
include "any crime 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"). We therefore may
consider our precedents construing the ACCA's definition
of violent felony when assessing whether a
conviction fits the guidelines definition of a crime of
violence. See Ontiveros, 875 F.3d at 538 n.4;
United States v. McConnell, 605 F.3d 822, 828 (10th
Cir. 2010) ("[T]he nearly identical language in those
two provisions allows us to consider precedent involving one
in construing the other.").
determine whether a defendant's prior conviction was for
a crime of violence (or violent felony) under the elements
clause, we apply the categorical approach. See Ash,
917 F.3d at 1240. That is, we do not examine the facts of the
prior offense to see whether they fit the guidelines (or
statutory) definition. See Ontiveros, 875 F.3d at
535. Rather, we focus on the elements of the offense of
conviction. See id.
case, therefore, the task before us is to assess whether Wyo.
Stat. Ann. § 6- 5-204(b) "has as an element the
use, attempted use, or threatened use of physical force
against the person of another." USSG § 4B1.2(a)(1).
Federal law defines the meaning of the phrase "use . . .
of physical force" under USSG § 4B1.2(a)(1),
whereas state law defines the elements of the state crime at
issue. See United States v. Bong, 913 F.3d 1252,
1260 (10th Cir. 2019).
Supreme Court has held that the term physical force
in the elements clause "refers to force exerted by and
through concrete bodies," as opposed to, "for
example, intellectual or emotional force." Johnson
v. United States, 559 U.S. 133, 138 (2010). Such
"physical force" requires more than mere offensive
touching; it means "violent force-that is,
force capable of causing physical pain or injury to another
person." Id. at 140. But this force does not
need to be particularly strong or likely to cause pain or
injury. See Stokeling v. United States, 139 S.Ct.
544, 554 (2019) ("Johnson . . . does not
require any particular degree of likelihood or probability
that the force used will cause physical pain or injury; only
potentiality."). For example, the minor degree of
"force necessary to overcome a victim's physical
resistance" is inherently "capable of causing
physical pain or injury" and thus constitutes
"violent" force. Id. at 553 (internal
quotation marks omitted). Further, "violent force"
can be applied indirectly, such as through poison or even
through physically harmful neglect. See Ontiveros,
875 F.3d at 537-38.
determining whether a state statute satisfies the
violent-force requirement, we look to "the words of the
statute and judicial interpretations of it."
McConnell, 605 F.3d at 825 (internal quotation marks
omitted). "[W]e must presume that the conviction rested
upon nothing more than the least of the acts criminalized,
and then determine whether even those acts are encompassed by
the [guidelines definition]." Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (brackets and
internal quotation marks omitted). But we also need to be
mindful that "our focus on the minimum conduct
criminalized by the state statute is not an invitation to
apply legal imagination to the state offense; there must be a
realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct that falls
outside the [guidelines] definition." Id. at
191 (internal quotation marks omitted).
view, § 6-5-204(b) is a violent felony within the
meaning of the guidelines. The statute states:
A person who intentionally and knowingly causes or
attempts to cause bodily injury to a peace officer
engaged in the lawful performance of his official duties is
guilty of a felony punishable by imprisonment for not more
than ten (10) years.
Wyo. Stat. Ann. § 6-5-204(b) (emphasis added). At the
time of Defendant's offense, bodily injury was
defined to mean "physical pain, illness or any
impairment of physical condition." ...