United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Chief United States District Judge
the court is defendant Michael Horn's motion to vacate
his sentence pursuant to 28 U.S.C. § 2255 (Dkt. 26). He
argues that his prior Kansas aggravated battery conviction no
longer qualifies as a federal crime of violence after
Johnson v. United States, 135 S.Ct. 2551 (2015),
thus the enhancement of his base offense level under U.S.S.G.
§ 2K2.1 was unconstitutional. The government counters
that the Tenth Circuit's decision in United States v.
Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005), controls
and mandates denying the requested relief. For the reasons
stated below, the court denies defendant's motion.
February 18, 2014, a jury found defendant guilty of one count
of possessing a firearm by a prohibited person in violation
of 18 U.S.C. § 922(g)(1) and one count of possessing
ammunition by a prohibited person in violation of 18 U.S.C.
§ 922(g)(1). On April 14, 2014, the sentencing court
adopted the Presentence Investigation Report (PSR) and
determined the base offense level was 20 after treating
defendant's prior Kansas aggravated battery as a felony
crime of violence. Because the firearm was stolen, two points
were added to the offense level, making the total offense
level 22. With a criminal score of 7, defendant's
guideline range was 63 to 78 months. The court sentenced
defendant to 68 months in prison and three years of
supervised release. Defendant did not seek a direct appeal of
his conviction or sentence.
initial matter, the government maintains that
Johnson should not apply retroactively to the
Guideline. But it argues it's unnecessary for the court
to make this determination, because the Tenth Circuit has
already rejected defendant's underlying argument that a
conviction for aggravated burglary under Kan. Stat. Ann.
§ 21-3414(a)(1)(C) (2003) does not constitute a felony
crime of violence. Treto-Martinez, 421 F.3d at
1158-60. Because appeal of the underlying argument is likely,
the court sees no reason to render a piecemeal decision. And
because the government offers no new arguments, the court
declines to depart from its previous conclusion that the
Johnson rule retroactively applies to Guideline
cases on collateral review. See United States v.
Aldershof, Case No. 07-10034-01-JTM, 2016 WL 7210717 (D.
Kan. Dec. 13, 2016) (adopting analysis in United States
v. Daugherty, Case No. 07-87, 2016 WL 4442801 (N.D.
Okla. Aug. 22, 2016)).
the underlying issue, in Treto-Martinez, the Tenth
Circuit analyzed the same version of the Kansas statute at
issue in this case and concluded that it constituted a crime
of violence with the following analysis:
Under Kan. Stat. Ann. § 21-3414(a)(1)(C) aggravated
battery occurs when a person intentionally causes physical
contact with another either with a deadly weapon in “a
rude, insulting or angry manner” or “in any
manner whereby great bodily harm, disfigurement or death can
be inflicted.” § 21-3414(a)(1)(C). In order to
apply a sentencing enhancement under § 2L1.2(b)(1)(A), a
court must find that an offense includes as an element the
“use, attempted use, or threatened use of physical
force.” Concerning the first disjunct of this statute
which proscribes contact with a deadly weapon, Kansas courts
have defined “ ‘deadly weapon, ' in the
context of aggravated battery, as an instrument which, from
the manner in which it is used, is calculated or likely to
produce death or serious bodily injury.” State v.
Whittington, 260 Kan. 873, 926 P.2d 237, 241 (1996)
(quotation omitted). First, we conclude that physical force
is involved when a person intentionally causes physical
contact with another person with a deadly weapon. Although
not all physical contact performed in a rude, insulting or
angry manner would rise to the level of physical force, we
conclude that all intentional physical contact with a deadly
weapon done in a rude, insulting or angry manner does
constitute physical force under § 2L1.2(b)(1)(A). Thus,
a person who intentionally touches another with a deadly
weapon in a “rude, insulting or angry manner, ”
uses physical force by means of an instrument calculated or
likely to produce bodily injury which goes well beyond other,
less violent, forms of touching such as grabbing a police
officer's arm. Second, we conclude that a person who
touches a police officer with a deadly weapon in “a
rude, insulting or angry manner, ” has at the very
least “threatened use of physical force” for
purposes of § 2L1.2(b)(1)(A). Even if the physical
contact does not produce bodily injury, the manner in which
the physical contact with a deadly weapon must occur to
violate the Kansas statute clearly has as an element the
“threatened use of physical force.” Causing
physical contact with a deadly weapon in “a rude,
insulting or angry manner, ” if not sufficient in
itself to constitute actual use of physical force under
§ 2L1.2(b)(1)(A), could always lead to more substantial
and violent contact, and thus it would always include as an
element the “threatened use of physical force.”
Physical contact with a deadly weapon under this statute will
always constitute either actual or threatened use of physical
As to the other disjunct under § 21-3414(a)(1)(C) -
“physical contact ... whereby great bodily harm,
disfigurement or death can be inflicted, ” - it is
clear that a violation of this provision is also sufficient
to satisfy § 2L1.2(b)(1)(A)'s meaning for
“physical force.” No matter what the
instrumentality of the contact, if the statute is violated by
contact that can inflict great bodily harm, disfigurement or
death, it seems clear that, at the very least, the statute
contains as an element the “threatened use of physical
Treto-Martinez, 421 F.3d at 1159-60.
urges this court to ignore Treto-Martinez because
the Tenth Circuit allegedly employed the wrong analysis by
focusing on the likely result in an ordinary case, rather
than focusing on the means used to commit the crime. Dkt. 26
at 15. Defendant suggests that the Tenth Circuit has
abandoned Treto-Martinez and has adopted a stricter
elements test as posited in United States v.
Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005) and
United States v. Zuniga-Soto, 527 F.3d 1110 (10th
Cir. 2008). These exact arguments were raised and rejected in
United States v. McMahan, Case No.
12-20120-01-JWL, 2016 WL 6083710 (D. Kan. Oct. 17, 2016).
This court agrees with Judge Lungstrum that: 1)
Zuniga-Soto and Perez-Vargas are both
distinguishable from Treto-Martinez, and 2) the
Circuit has not clearly repudiated Treto-Martinez.
the court finds defendant's reliance upon this
court's decision in United States v. Flores,
Case No. 15-10089-JTM-01 (D. Kan. August 23, 2016) (order
sustaining defendant's objection to proposed enhancement
pursuant to U.S.S.G. § 2K2.1(a)(4)(A)), misplaced. In
Flores, the court examined a prior Kansas conviction
for conspiracy to commit aggravated battery under Kan. Stat.
Ann. § 21-5413(b)(1)(A) (2013), which is the equivalent
of Kan. Stat. Ann. § 21-3414(a)(1)(A) (2003). That
subsection requires “intentionally causing great bodily
harm to another person or disfigurement of another
person” and fails to mention physical contact or force.
The conviction at issue here and in Treto-Martinez
was under a different subsection, Kan. Stat. Ann. §
21-3414(a)(1)(C), which required “intentionally causing
physical contact” coupled with a deadly weapon or in a
manner capable of causing great bodily harm. Physical contact
necessarily requires, at a minimum, the use or threatened use
of physical force.
court declines defendant's invitation to reverse the
Tenth Circuit's decision in Treto-Martinez.
Although there is a split in circuit authority, this court is
bound by Tenth Circuit precedent. See Larin-Ulloa v.
Gonzales, 462 F.3d 456 (5th Cir. 2006). The court
concludes defendant's conviction for aggravated battery
under Kan. Stat. Ann. § 21-3414(a)(1)(C) constitutes a
“felony crime of violence” under USSG §
4B1.2 and that the enhancement pursuant to § 2K2.1 still
applies to Mr. Horn. Accordingly, the court denies
defendant's motion to vacate his sentence.