United States District Court, D. Kansas
MEMORANDUM
ERIC
F. MELGREN UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on the Government's
Objection Number 1 to the Presentence Investigation Report
(“PSR”) (Doc. 38) prepared in this case. The
Government objects to Paragraph 25 of the PSR, which
classifies Williams's base offense level as 14 pursuant
to U.S.S.G. § 2K2.1(a)(6)(A). The Government argues that
that Williams's base offense level should be 20 based on
application of § 2K2.1(a)(4)(A), because his prior
conviction for aggravated battery constituted a “crime
of violence” under the U.S. Sentencing Commission
Guidelines Manual (“Guidelines”). The Court
reviewed the parties' arguments contained in the addendum
to the PSR, and heard the parties' oral arguments at the
sentencing hearing held on March 31, 2017. At the hearing,
the Court sustained Government's Objection Number 1 to
the PSR. The memorandum that follows states the Court's
reasons for sustaining the Government's objection.
I.
Factual and Procedural Background
On
August 22, 2016, Defendant Trayon L. Williams entered a plea
of guilty to possession of a firearm after having been
convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§
922(g)(1) & 924(a)(2). Before Williams's sentencing,
the U.S. Probation Office prepared a PSR, which calculated
Williams's base offense level as 14 pursuant to U.S.S.G.
§ 2K2.1(a)(6)(A). Section 2K2.1(a) describes the
applicable base offense levels for offenses under 18 U.S.C.
§ 922(g)(1), and provides a base level of 14 if the
defendant “was a prohibited person at the time the
defendant committed the instant offense . . . .” The
PSR detailed Williams's criminal history, which included
a 2014 conviction for aggravated battery in Sedgwick County
District Court. The journal entry for that case stated that
Williams pleaded guilty to aggravated battery, in violation
of K.S.A. § 21-5413(b)(1)(B)(g)(2)(B), a “Felony,
Severity Level 7.” The PSR did not classify this
offense as a “crime of violence, ” so
Williams's base offense level was 14. The Government
objected to this calculation, arguing that the aggravated
battery conviction constitutes a “crime of violence,
” and therefore Williams's base offense level
should be 20.[1]
II.
Discussion
The
Government contends that Williams's conviction under
K.S.A. § 21-5413(b)(1)(B) qualifies as a “crime of
violence” under the Guidelines because it “has as
an element the use, attempted use, or threatened use of
physical force against the person of
another.”[2] In making this argument, the Government
relies heavily on United States v. Treto-Martinez,
[3]
which held that an offender's violation of Kansas's
earlier aggravated battery statute, K.S.A. §
21-3414(a)(1)(C), involves the use or threatened use of
physical force and thereby qualified as a “crime of
violence” under the Guidelines.[4]
Williams
disagrees with the Government's position for two reasons.
First, Treto-Martinez considered the predecessor
version of the statute under which Williams was convicted.
According to Williams, the revised statute at issue here
“contains a diluted scienter requirement, permitting
conviction based on ‘knowing' conduct.” He
contends that the Tenth Circuit “has consistently held
that intentional conduct is required to support a federal
enhancement, and that a ‘knowing' scienter element
does not meet that standard.” Second, Williams asserts
that the Supreme Court's decision in Mathis v. United
States[5] “dooms the rationale of cases like
Treto-Martinez.” Under Williams's
interpretation of Mathis, the Supreme Court
“abrogated Tenth Circuit law concerning the definition
of an “element, ” which requires this Court to
focus only on the elements of the state offense.”
“Treto-Martinez violates that rule by
speculating how the offense might be committed in an ordinary
case instead of examining only the elements of the state
offense.”
The
parties agree that if Williams's conviction for
aggravated battery qualifies as a “crime of violence,
” it does so only under the “elements
clause” of the Guidelines. Under that clause, an
offense is considered a “crime of violence” if it
is punishable by imprisonment for a term exceeding one year,
and it “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.”[6] The parties further agree that the Kansas
aggravated battery statute, K.S.A. § 21-5413, is a
divisible statute that lists multiple alternative elements
defining multiple crimes such that the Court may consult
state court documents to determine the specific crime of
conviction.[7] The Government cites the Journal Entry of
Judgment, which states that Williams pleaded guilty to a
violation of K.S.A. § 21-5413(b)(1)(B)(g)(2)(B), a
“Felony, Severity Level 7.”
The
journal entry's reference to “(g)(2)(B)”
corresponds to § 21-5413(g)(2)(B), which specifies that
aggravated battery “as defined in . . . subsection
(b)(1)(B) . . . is a severity level 7, person felony.”
Thus, it appears that Williams was convicted under §
21-5413(b)(1)(B), and the journal entry's reference to
(g)(2)(B) was simply to indicate that the offense is a
severity level 7, person felony. Because the parties agree
that this is the correct analysis, the Court concludes that
Williams was convicted under § 21-5413(b)(1)(B). That
provision prohibits “knowingly causing bodily harm to
another person with a deadly weapon, or in any manner whereby
great bodily harm, disfigurement or death can be
inflicted.”[8]
Subsection
(b)(1)(B) is therefore divisible because it sets out elements
of the offense in the alternative, creating two distinct
offenses. First, § 21-5413(b)(1)(B) criminalizes
“knowingly causing bodily harm to another person with a
deadly weapon” (“aggravated battery with a deadly
weapon”).[9] Second, it criminalizes “knowingly
causing bodily harm to another person . . . in any manner
whereby great bodily harm, disfigurement or death can be
inflicted.”[10] Unfortunately, the parties did not
provide any additional records pertaining to Williams's
conviction. Therefore, the Court must “turn to the
plain language of the [Kansas] statute itself to determine
if, standing alone, it would support the crime of violence
enhancement.”[11] In other words, the Court must
separately analyze both offenses: (1) aggravated battery with
a deadly weapon, and (2) aggravated battery in any manner
whereby great bodily harm can be inflicted.
To
support the crime of violence enhancement, both offenses must
have as an element “the use, attempted use, or
threatened use of physical force” against another
person. This analysis has two components. First, the offense
must have as an element the “use” of force. And
second, the amount of force must be sufficient to constitute
“physical force.”
A.
Aggravated Battery With a Deadly Weapon
1.
The “Use” of Force
Williams
argues that his conviction cannot qualify as a “crime
of violence” because both aggravated battery offenses
under K.S.A. § 21-5413(b)(1)(B) have a mens rea
of “knowingly.” He contends that the “Tenth
Circuit has squarely and repeatedly held that only offenses
with an intent element are crimes of violence under the
guidelines. Because the prior conviction at issue here did
not have intent as an element, it is not a crime of
violence.”
Under
the elements clause, an offense is a “crime of
violence” if it “has as an element the
use, attempted use, or threatened
use of physical force . . . .”[12] In Leocal
v. Ashcroft, [13] the U.S. Supreme Court interpreted the
word “use” in the elements clause of 18 U.S.C.
§ 16. Noting that a crime of violence must be one that
involves the “use . . . of physical force, ” the
Court observed that “ ‘use' requires active
employment.”[14] The Court then held that
“use” requires “a higher degree of intent
than negligent or merely accidental
conduct.”[15] In light of Leocal, the Tenth
Circuit further clarified that the word “use”
requires a higher degree of intent than
recklessness.[16]And with these principles in mind, the
Tenth Circuit has “unequivocally held that the text of
[U.S.S.G.] § 4B1.2 only reaches purposeful or
intentional behavior.”[17]
To
date, the Tenth Circuit has not addressed whether an offense
with a mens rea of knowingly can satisfy the use of
physical force requirement in order to be classified as a
crime of violence under § 4B1.2's elements clause.
However, the Tenth Circuit has provided some guidance, albeit
in the context of violent felonies under the Armed Career
Criminal Act (“ACCA”).[18] First, the Tenth Circuit
has previously found offenses with a mens rea of
knowingly to be violent felonies under the ACCA's
elements clause. For example, in United States
v. Hernandez, [19] the court concluded that a Texas
conviction for “knowingly discharg[ing] a
firearm at or in the direction of . . . one or more
individuals” qualified as a violent felony under the
elements clause of the ACCA.[20] Second, in United States
v. Ramon Silva, [21] the court concluded that the
“presence or absence of an element of specific intent
does not dispositively determine whether a prior conviction
qualifies as a violent felony under the
ACCA.”[22] The court then held that an offense
requiring proof of general criminal intent is sufficient to
satisfy the ACCA's elements clause.[23]
Under
this framework, the Court concludes that the word
“use” in the elements clause of the Guidelines
encompasses offenses (such as Williams's aggravated
battery conviction) with a mens rea of knowingly. To
begin, “knowingly causing bodily harm to another
person” necessarily requires “active
employment.”[24] The Kansas Supreme Court has stated that
in order to obtain an aggravated battery conviction, the
State must prove “that the accused acted when
he or she was aware that his or her conduct was reasonably
certain to cause the result.”[25] Thus, unlike accidental,
negligent, and reckless-“knowingly” requires the
offender to take action, aware that his or her conduct was
reasonably certain to cause the result. Put another way,
aggravated battery only encompasses malfeasance,
[26]
while accidental, negligent, and reckless conduct can
encompass nonfeasance, or the failure to act.[27] Accordingly,
“knowingly causing bodily harm to another person”
necessarily requires an offender to take action when he or
she was aware that his or her action was reasonably certain
to cause bodily harm. Unlike in Leocal, the degree
of intent here-knowingly-does in fact require “active
employment.”
Next,
this decision accords with the Tenth Circuit's
pronouncement that “§ 4B1.2 only reaches
purposeful or intentional behavior.”[28] Although an
offense cannot constitute a crime of violence if it reaches
behavior that is not “purposeful” or
“intentional, ”[29] there is no requirement that
the offense be a specific intent crime. Rather, a general
intent crime can constitute a crime of violence under the
elements clause. In Ramon Silva, the court
effectively eliminated any perceived distinction between
specific intent and general intent crimes. There, the court
held that a plea of no contest to aggravated assault, which
requires proof of general criminal intent, “was an
admission of intentional conduct.”[30] In reaching
this decision, the court noted that proof of general criminal
intent has “consistently” been defined by New
Mexico courts “as conscious wrongdoing or the
purposeful doing of an act that the law declares to be a
crime.”[31]
Not
only did Ramon Silva equate “general criminal
intent” with “intentional conduct, ” but it
expressly disavowed the notion that an offense must have an
element of specific intent in order to constitute a crime of
violence or violent felony.[32] Here, an aggravated battery
conviction under K.S.A. § 21-5413(b)(1)(B) requires
proof of general criminal intent, [33] which the Kansas Supreme
Court has defined as “the intent to do what the law
prohibits.”[34] And because general intent crimes fall
under the same umbrella as specific intent crimes, the Court
concludes that aggravated battery only encompasses
“purposeful or intentional behavior.”
Furthermore,
the Circuit Courts of Appeal that have addressed this precise
issue have unanimously held that general intent crimes still
constitute crimes of violence under the Guidelines'
elements clause.[35] For example, in United States v.
Melchor-Meceno, [36] the Ninth Circuit found a conviction
for felony menacing under Colorado law categorically
qualified as a crime of violence. The Colorado statute
required a threat that knowingly placed another in fear of
imminent serious bodily injury. The Ninth Circuit stated,
“menacing is a general intent crime that requires the
defendant to knowingly place another person in fear . . . .
Therefore, the predicate offense of menacing includes the
requisite mens rea of intent for a crime of
violence.”[37] Indeed, “[k]nowledge is a
sufficiently culpable mental state to qualify as crime of
violence.”[38] The Court is unaware of any Circuit
Courts of Appeal that have held otherwise.
Thus,
Williams's plea of no contest to aggravated battery,
which required proof of general criminal intent, was an
admission of purposeful or intentional conduct. Accordingly,
the Court concludes that the offense of knowingly causing
bodily harm to another person with a deadly weapon
necessarily requires the “use” of force.
2.
Use of “Physical Force”
Having
concluded that aggravated battery with a deadly weapon
requires the “use” of force (active employment),
the Court turns its analysis to whether “knowingly
causing bodily harm with a deadly weapon” requires the
use of a sufficient level of force. Under the Guidelines, an
offense must have as an element the use, threatened use, or
attempted use of “physical force.” “The
Supreme Court has clarified that the amount of force required
to satisfy the elements clause is ‘violent
force-that is, force capable of causing physical pain or
injury to another person.' ”[39]
A
conviction under K.S.A. § 21-5413(b)(1)(B) requires
proof that the defendant caused “bodily harm.” In
Kansas, “bodily harm” is defined as “any
touching of the victim against the victim's will, with
physical force, in an intentional hostile and aggravated
manner.”[40] It can constitute “slight,
trivial, minor, or moderate harm, ” and can include
“mere bruising.”[41] This does not rise to the
level of violent force prescribed by
Johnson.[42] Therefore, the Court must decide whether
§ 21-5413(b)(1)(B) satisfies the requisite violent force
necessary because it contains the additional element of a
“deadly weapon.”
To
answer this question, United States v.
Treto-Martinez[43] is instructive. In
Treto-Martinez the Tenth Circuit analyzed
Kansas's previous aggravated battery statute which
contained nearly identical language to the statute in this
case.[44] There, the court conclusively determined
that “intentionally causing bodily harm to another
person with a deadly weapon”[45]qualified as a crime of
violence. The court wrote: “There is no dispute that
[K.S.A. § 3414(a)(1)(B)] contains the requisite language
to support a finding that Treto-Martinez's conviction was
for a ‘crime of violence.' ”[46]
Unfortunately, that was the extent of the court's
analysis of § 3414(a)(1)(B) before moving on to §
3414(a)(1)(C).
The
provision Williams pleaded guilty to, § 21-5413(b)(1)(B)
mirrors § 21-3414(a)(1)(B) word-for-word, with the
single exception that “intentionally” was
replaced with “knowingly” in the current
statute.[47] Because there was “no
dispute” that the predecessor statute contained the
requisite physical (or violent) force necessary to satisfy
the elements clause, the Court must reach the same result
here.
The
fact that the predecessor statute contained specific criminal
intent as opposed to general criminal intent is of no
consequence. As discussed above, both
“intentionally” and “knowingly”
committing a battery constitute the “use” of
force. The issue here is whether the statute Williams pleaded
guilty to has as an element the use of “physical
force.” And based on the Tenth Circuit's
pronouncement that there is “no dispute” that the
predecessor statute-which contains identical language to the
current statute-constitutes a crime of violence,
[48]
the answer must be in the affirmative.
Although
the Tenth Circuit's analysis of § 3414(a)(1)(B) was
brief and conclusory, one can surmise the court's
rationale from its analysis of § 3414(a)(1)(C).
Subsection (a)(1)(C) from the predecessor statute defined
aggravated battery as “intentionally causing physical
contact with another person when done in a rude, insulting or
angry manner with a deadly weapon . . . .” The court
conclude[d] 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.[49]
The same analysis applies here. Except, as the Government
points out, the statute now under consideration, §
21-5413(b)(1)(B), requires proof of bodily harm
whereas the statute analyzed above, § 21-3414(a)(1)(C),
merely required physical contact. Obviously, the
Government argues, “causing ‘bodily harm'
involves a greater degree of harm than causing
‘physical contact.' ” The Court agrees. It is
clear that anyone who “caus[es] bodily harm to another
person with a deadly weapon” uses physical force by
means of an instrument calculated or likely to produce bodily
injury.[50] Even if the bodily harm is minor,
“the manner in which the physical contact with a deadly
weapon must occur to violate the Kansas statute clearly has
an element the ‘threatened use of physical force.'
”[51]
In
response, Williams argues that the U.S. Supreme Court's
decision in Mathis v. United States[52] abrogates
Treto-Martinez. According to Williams, the court in
Treto-Martinez improperly focused not solely on the
elements of the crime (and, more specifically, whether the
statute requires the use or threatened use of force) but on
the likely result of the crime in an ordinary case (and, more
specifically, whether the victim of an aggravated battery
under the statute would normally perceive a threat of the use
of physical force). Williams contends that the results-only
approach utilized in Treto-Martinez conflicts with
the elements-only approach endorsed by the Supreme Court in
Mathis and utilized by the Tenth Circuit in
United States v. Zuniga-Soto, [53] and
United States v. Perez-Vargas.[54]
As the
Government points out, this exact argument was rejected by
Judge Lungstrum in United States v.
McMahan.[55] The Court agrees with Judge
Lungstrum's analysis and rejects Williams's efforts
to undermine Treto-Martinez for the same reasons.
First,
Zuniga-Soto and Perez-Vargas are both
distinguishable from Treto-Martinez. Both of the
statutes at issue in Zuniga-Soto and Perez-Vargas
allowed for convictions based on reckless or negligent
conduct.[56] But, as Judge Lungstrum explained,
The Kansas aggravated battery statute [at issue in
Treto-Martinez] does not allow for a conviction
based on reckless or criminally [negligent] conduct because
it does not focus on “bodily injury.” Rather, the
statute-unlike the statutes at issue in Zuniga-Soto
and Perez-Vargas-requires that the defendant engage
in “intentional . . . physical contact.” Because
the statute requires intentional conduct coupled with the
potential for “great bodily harm, ” the Tenth
Circuit appropriately concluded in Treto-Martinez
that the statute necessarily requires, at a minimum, the
threatened use of physical force. In fact, the Circuit
summarized this distinction in United States v.
Ramon-Silva, 608 F.3d 663, 672 (10th Cir. 2010)
(Zuniga-Soto held that a mens rea of recklessness
does not satisfy physical force requirement under ยง
2L1.2's definition of ...