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United States v. Winder

United States Court of Appeals, Tenth Circuit

June 14, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RONALD DETRO WINDER, Defendant-Appellant.

          Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:17-CR-00057-ABJ-1)

          John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

          Jason M. Conder, Assistant United States Attorney (Mark A. Klaassan, United States Attorney, with him on the briefs), Lander, Wyoming, for Plaintiff-Appellee.

          Before HARTZ, MORITZ, and EID, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Defendant 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 affirm.

         The 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.").

         To 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.

         In this 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).

         The 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.

         In 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).

         In our 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." ...


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