United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC
F. MELGREN UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on Defendant's Objection
Number 1 to the Presentence Investigation Report
(“PSR”) (Doc. 18) prepared in this case.
Defendant Maximo Corral-Garcia objects to the 16-level
enhancement predicated on a conviction for a “crime of
violence” as stated in Paragraph 20 of the PSR. The
Court has reviewed the parties' briefs and heard the
parties' oral arguments at the sentencing hearing held on
April 21, 2017. At the hearing, the Court overruled
Corral-Garcia's objection. The purpose of this memorandum
is to memorialize the ruling made by the Court during that
hearing.
I.
Factual and Procedural Background
On July
11, 2016, Defendant Maximo Corral-Garcia entered a plea of
guilty to aggravated illegal reentry, in violation of 8
U.S.C. § 1326(a) & (b). Before Corral-Garcia's
sentencing, the U.S. Probation Office prepared a PSR using
the 2015 Guidelines Manual. The PSR calculated Williams's
base offense level as eight pursuant to U.S.S.G. §
2L1.2(a). Corral-Garcia then received a 16-point enhancement
because he “has a prior conviction for a crime of
violence, Aggravated Assault (2 Counts), in Wyandotte County,
Kansas District Court.”[1]
The PSR
reflects that Corral-Garcia was convicted of two counts of
aggravated assault on July 19, 2007. The PSR provides:
The information charges that on the above date, the defendant
unlawfully and intentionally placed another person, to-wit:
[Victim 1], in a reasonable apprehension of immediate bodily
harm, committed with a deadly weapon, to-wit: shotgun (Count
1); and that on the same date, the defendant unlawfully and
intentionally placed another person, to-wit: [Victim 2], in a
reasonable apprehension of immediate bodily harm, committed
with a deadly weapon, to-wit: shotgun (Count 2). The journal
entry of judgment reflects the defendant was convicted of a
person felony committed with a firearm.
Corral-Garcia
was sentenced to 18 months total custody on November 9, 2007.
On September 18, 2009, he was deported to Mexico.
Corral-Garcia
objected to the 16-point enhancement under U.S.S.G. §
2L1.2(a), arguing that the aggravated assault conviction does
not qualify as a “crime of violence, ” and
therefore the enhancement should only be four or eight
points.[2] He made two arguments in support of this
proposition. First, he argued that “the aggravated
assault statute asks whether the defendant caused or
threatened bodily harm, not whether the defendant used or
threatened force.” According to Corral-Garcia, Tenth
Circuit precedent “directs that a statute focused on
harm does not have, as an element, the use or threat of
physical force.” Second, he argued that the statute
only requires proof that the defendant threatened physical
contact with a dangerous weapon. “While the statute
says ‘bodily harm, ' it means nothing more than
physical contact.”
The
Government argued in response that the proper inquiry is not
whether the aggravated assault statute has as an element the
use or threat of physical force. Rather, aggravated assault
can automatically qualify as a crime of violence because it
is one of the enumerated offenses in the Guidelines
Commentary. The proper inquiry, then, is whether the Kansas
aggravated assault statute meets the generic definition of
“aggravated assault.” The Government then argued
that Corral-Garcia was charged with, pleaded guilty to, and
was convicted of an offense meeting the generic definition of
“aggravated assault” and thus the 16-level
increase was correctly applied.
II.
Discussion
In the
2015 Guidelines Manual, § 2L1.2(b)(1)(A)(ii) mandates a
16-level increase in the Guidelines calculation if the
defendant “previously was deported, or unlawfully
remained in the United States, after a conviction for a
felony that is . . . a crime of violence.” However,
§ 2L1.2 does not define the term “crime of
violence.” The Court's inquiry is therefore guided
by the definition of “crime of violence” provided
in the commentary accompanying § 2L1.2.[3] The phrase
“crime of violence, ” as defined in Application
Note 1 (B)(iii), encompasses two distinct categories: one
broadly defined to include any offense “that has as an
element the use, attempted use, or threatened use of physical
force against the person of another” (“elements
clause”). The other constituted by specifically
enumerated generic offenses, including, as relevant here,
“aggravated assault” (“enumerated offense
clause”).[4]
“In
determining whether a prior conviction is a crime of
violence, courts employ a formal categorical approach,
looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those
convictions.”[5] “If the statute is ambiguous,
however, or broad enough to encompass both violent and
nonviolent crimes, a court can look beyond the statute to
certain records of the prior proceeding, such as to charging
documents, the judgment, and the terms of a plea
agreement” to determine whether the prior conviction
warrants an enhancement.[6]This approach is known as the modified
categorical approach.[7] “Its proper scope depends on whether
the prior conviction is evaluated as a crime of violence
under the Guideline's ‘as an element' language
or the list of enumerated offenses.”[8] If the conviction
is evaluated under the elements clause, the modified
categorical approach has a narrow application; judicial
records may be consulted “only ‘to determine
which part of the statute was charged against the defendant
and, thus, which portion of the statute to examine on its
face.' ”[9] But if the conviction is evaluated as an
enumerated offense, the modified categorical approach has a
broader application; “a sentencing court may look
beyond the face of the statute of conviction” and
“ascertain whether the jury necessarily had to find, or
the defendant necessarily admitted, ‘facts that would
also satisfy the definition' ” of an enumerated
offense.[10]
Here,
Corral-Garcia was convicted of two counts of aggravated
assault under K.S.A. § 21-3410. At the time of his
conviction, the offense was defined as:
Aggravated assault is assault, as described in K.S.A. 21-3408
and amendments thereto, committed:
(a) With a deadly weapon
(b) while disguised in any manner designed to conceal
identity; or
(c) with intent to commit any felony.[11]
Kansas
defined assault as “intentionally placing another
person in reasonable apprehension of immediate bodily
harm.”[12] As the statute makes clear, a person
could commit aggravated assault by committing assault in one
of three ways. “The statute thus provides alternative
definitions of aggravated assault, some of which may
constitute crimes of violence and some of which may
not.”[13] Accordingly, the Court must employ the
modified categorical approach to determine which of these
alternative offenses formed the basis of Corral-Garcia's
prior conviction.
The
information and journal entry of judgment reveal that
Corral-Garcia was convicted of aggravated assault “with
a deadly weapon” under § 21-3410(a). Now, the
Court must determine whether that offense constitutes a
“crime of violence” as defined by U.S.S.G. §
2L1.2 Application Note 1(B)(iii). The Court will first
evaluate the aggravated assault statute as an enumerated
offense. Then the Court will evaluate the offense under the
elements clause.
A.
Enumerated Offense Clause
The
Court first turns to whether aggravated assault meets the
enumerated offense clause of § 2L1.2. Above, the Court
applied the modified categorical approach to determine that
Corral-Garcia was convicted of aggravated assault with a
deadly weapon under K.S.A. § 21-3410. Because the
subsection of conviction has been determined, the Court must
apply the “categorical approach, ” looking at the
generic version of the offense and not all the variants of
the offense.[14] Courts must focus “solely on
whether the elements of the crime of conviction sufficiently
match the elements of [the generic offense], ” while
ignoring the exact facts of the case.[15] Thus, a crime
qualifies as an enumerated offense if its elements are the
same as, or narrower than, those of the generic enumerated
offense.[16] If the crime of conviction covers more
conduct than the generic offense, then it is not an
enumerated offense for purposes of §
2L1.2.[17]
Although
aggravated assault is specifically listed as an enumerated
offense in Commentary Note 1 to § 2L1.2, Corral-Garcia
argued that it is not a crime of violence because Kansas
courts interpret the statute much more broadly than generic
aggravated assault. The immediate question, then, is whether
all of the criminal conduct covered by the Kansas
aggravated assault statute falls within the scope of the
generic offense of aggravated assault.[18] If so, the
Court “may summarily conclude under the categorical
approach that the enhancement was properly
applied.”[19] The dispositive point is whether the
Kansas aggravated assault statute “criminalizes only
activity that qualifies as [generic aggravated assault], and
thus meets the definition of a crime of violence [in]
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).”[20] In making
this comparison, the Court looks to the “generic,
contemporary meaning” of the relevant enumerated
offense.[21]
According
to Tenth Circuit case law, generic aggravated assault is
defined as “an offense that has an element either the
causing of serious bodily injury or the use of a dangerous
weapon.”[22] In formulating this definition, the
Tenth Circuit appeared to adopt the elements of aggravated
assault as set forth in the Model Penal Code.[23] The Model
Penal Code states that a person is guilty of aggravated
assault with a deadly weapon if he “attempts to cause
or purposely or knowingly causes bodily injury to another
with a deadly weapon.”[24] Kansas, on the other hand,
defines aggravated assault as “intentionally placing
another person in reasonable apprehension of immediate bodily
harm”[25] “with a deadly
weapon.”[26]
Corral-Garcia
argues that the Kansas statute “fails to square”
with the generic definition in three ways: “(1) it does
not require proof that a deadly weapon was used, (2) it does
not require proof that the defendant caused or threatened
bodily injury, and (3) it does not require that the defendant
‘purposely or knowingly' attempted or caused bodily
injury.” Because the Court agrees that the statute does
not require proof that a deadly weapon was used, the Court
need not address his second and third arguments.
The
Model Penal Code defines “deadly weapon” as
“any firearm or other weapon, device, instrument,
material or substance, whether animate or inanimate, which in
the manner it is used or is intended to be used is known to
be capable of producing death or serious bodily
injury.”[27] Kansas defines “deadly
weapon” as “an instrument which, from the manner
it is used, is calculated or likely to produce death or
serious bodily injury.”[28] However, Kansas “has
adopted a subjective analysis for determining whether an
assault was committed with a deadly
weapon.”[29] Under this approach, an otherwise
harmless object “can be a dangerous weapon if intended
by the user to convince the victim that it is a dangerous
weapon and the victim reasonably believes it is a dangerous
weapon.”[30] Accordingly, Kansas courts have held
that a black toy pistol, [31] a “solid, ”
three-feet-long walking stick, [32] and
gasoline[33] all qualified as a “deadly
weapon” because the victim subjectively believed that
it was in fact deadly.
In
light of the above, Corral-Garcia argues that “[t]his
deeply diluted definition of ‘dangerous weapon'
fails the generic definition, which requires an actual deadly
weapon.” The Court agrees. Under the generic
definition, the weapon must be “known to be capable of
producing death or serious bodily injury.” But under
Kansas law, a deadly weapon may in fact be incapable of
causing bodily harm. In fact, “even a finger in
one's coat pocket could be considered a dangerous weapon
under the subjective test.”[34] While it is possible that
a “deadly weapon” as defined generically may in
some circumstances be incapable of causing bodily injury, the
weapon must be “known to be capable of
producing death or serious bodily injury.” Surely toy
pistols, index fingers, or other seemingly benign objects are
not “known” to be capable of causing death or
serious bodily injury.
The
Kansas aggravated assault statute therefore proscribes a
broader range of conduct by referring to the term
“deadly weapon” in a way that includes
instruments that are not “known to be capable of
producing death or serious bodily injury.” Take for
example a defendant who uses a toy gun to threaten a victim,
who believes the gun to be real. That defendant would not be
convicted of aggravated assault with a deadly weapon under
the generic definition, because a toy gun is not “known
to be capable” of causing serious injury. Yet in
Kansas, a defendant under those same facts would be
convicted, because the victim reasonably believed the gun was
real.
Accordingly,
the Kansas aggravated assault statute covers more conduct
than the generic offense. Thus, it is not an enumerated
offense for purposes of § 2L1.2.[35]
B.
Elements Clause
An
offense will also qualify as a crime of violence if it
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another.”[36] The Supreme Court has defined
“physical force” as “violent
force-i.e., force capable of causing physical pain or injury
to another person.”[37]
Corral-Garcia
contended that the Kansas aggravated assault statute lacks a
force element in two respects. First, “Kansas
aggravated assault is missing an element that force was used
or threatened.” “Second, Kansas aggravated
assault lacks, as an element, the strong, violent, physical
force required” to qualify as a crime of violence.
1.
Aggravated Assault Necessitates a Threat to Directly Apply
Physical, Mechanical Force From the Defendant to the
Victim
In
support of his first argument, Corral-Garcia relies heavily
on United States v. Perez-Vargas, [38] in which the
Tenth Circuit addressed whether a conviction under
Colorado's third-degree assault statute was a crime of
violence. The statute provided that third-degree assault
occurs when a defendant “knowingly or recklessly causes
bodily injury to another person or with criminal negligence
he causes bodily injury to another person by means of a
deadly weapon.”[39]This language, the court stated,
“looks to the consequences of the conduct, however
applied, whereas the Guidelines look to the type of conduct
that causes the injury.”[40] Noting that “it is
likely most third degree assaults will involve the use or
threatened use of physical force . . . the language of the
statute allows for other possibilities.”[41] The court
then provided three such possibilities: “recklessly
shooting a gun in the air to celebrate, intentionally placing
a barrier in front of a car causing an accident, or
intentionally exposing someone to hazardous
chemicals.”[42]
The
court then turned to Colorado courts to determine whether the
assault statute “necessarily requires the application
of force.” Concluding that there was no case law
definitively holding that the statute required the
application or use of force, the court then looked to the
Tenth Circuit and other courts. The court recited a number of
cases in which courts had previously found that statutes that
focused on bodily harm or injury, rather than physical force,
did not constitute crimes of violence.[43] The court
concluded that the Colorado statute suffered the same
infirmities. Accordingly, the court held that the
third-degree assault statute was not a crime of violence
because it did not incorporate the use or threatened use of
physical force as an element.[44]
Corral-Garcia
also relies on the Tenth Circuit case United States v.
Rodriguez-Enriquez.[45] In that case, the court was presented
with the issue of “whether non-consensual
administration of a drug should be characterized as
‘the use of physical force.' ”[46] The court
wrote:
Even if we were to agree that drugging involves the use of
force, we must still decide what is added by the
adjective physical. It might relate to the
consequences of the force, as in the term deadly
force, which describes force that can cause death; or it
might relate to how the force is generated.[47]
In
reaching its decision, the court “reject[ed] the view
that the word physical relates to the effect of the
force.”[48] “The pertinent phrase in the
Guidelines definition is ‘use of physical force against
the person of another.' ”[49] “ ‘Force
against the person of another' connotes force against a
physical object.”[50] “A ‘force' can affect
a physical object only by having a physical effect
on the object.”[51] “One cannot distinguish a
‘physical force against the person of another' from
a ‘generic force against the person of another' by
looking to the consequences of the
force.”[52]“Thus, the adjective
physical must refer to the mechanism by which the
force is imparted to the ‘person of another.'
”[53] This force, the court concluded, must be
generated and imparted mechanically.[54]
The
court then turned to Perez-Vargas. “The
example in Perez-Vargas most pertinent to the case
before us is ‘intentionally exposing someone to
hazardous chemicals.' ”[55] “As suggested by
the defendant in that case, we look to ‘the means by
which the injury occurs (the use of physical force), '
not ‘the result of defendant's conduct, i.e.,
bodily injury.' ”[56]Accordingly, the court
concluded that “injury effected by chemical action on
the body (as in poisoning or exposure to hazardous chemicals)
should not be described as caused by physical
force.”[57] Because the statute at issue in
Rodriguez-Enriquez “criminalizes harm caused
by the non-consensual administration” of a drug, the
statute encompassed conduct that did not involve the use of
physical force.[58] Therefore, the court held that assault
two (drugging a victim) was not a crime of
violence.[59]
In sum,
a statute must necessitate the direct application of
physical, mechanical force from the defendant to the victim
(or the threat or attempt to do so) to qualify as a crime of
violence. If the statute allows for a defendant to be
convicted without directly applying physical, mechanical
force from the defendant to the victim, then it is not a
crime of violence.
Again,
a crime of violence must have “as an element the use,
attempted use, or threatened use of physical force
against the person of another.”[60] Physical
force, in this context, means that the force on the victim
was generated mechanically. For example, “[w]hen
someone is struck by a fist, a bat, or a
projectile.”[61] In those instances, “[k]inetic
energy from the fist, bat, or projectile is transferred to
the body of the victim.”[62] “[I]t is the presence of
this mechanical impact that defines when force is
physical.”[63] Thus, under Rodriguez-Enriquez,
drugging a victim did not require the use of physical
force because the harm is caused by chemical action on
the victim's body.[64] Additionally, under
Perez-Vargas, “intentionally placing a barrier
in front of a car causing an accident, or intentionally
exposing someone to hazardous chemicals” did not
require the use of physical force.[65]
Corral-Garcia
contends that Perez-Vargas resolves this case. He
argues:
The Colorado third-degree assault statute almost directly
mirrors Kansas' aggravated assault statute. Both
criminalize the use of a deadly weapon, and the causation (or
threat) of bodily injury. But neither “necessarily
include the use or threatened use of ‘physical
force' as required by the Guidelines.” A threat to
cut another's brake lines with a knife, or poison
another's coffee, is a threat to cause bodily injury with
a deadly weapon. But, as Perez-Vargas recognized, it
is not a threat to use force.
Thus,
according to Corral-Garcia, the Tenth Circuit has made a
clear distinction: statutes that require the application or
threat of force are crimes of violence; statutes that focus
on whether an injury resulted are not.
However,
contrary to his assertion, these propositions are not
mutually exclusive. A statute that focuses on whether an
injury resulted can still require the use or threatened use
of physical force. That is precisely why the court in
Perez-Vargas did not end its inquiry with the
language of the statute. Rather, the court turned to prior
court decisions to determine whether the statute did in fact
require the application of force.[66] And while
Perez-Vargas ultimately concluded that the Colorado
statute did not require the use or threatened use of physical
force, that outcome is not dispositive of the statute at
issue here. On numerous occasions the Tenth Circuit and
courts of this District have determined that some statutes
focusing on whether an injury resulted still required the use
or threatened use of physical force.[67] In fact, this Court
recently held that a statute focusing on whether an injury
resulted was a crime of violence under the elements
clause.[68] Therefore, the correct inquiry is not
whether the statute focuses on whether an injury
resulted, but whether one could violate the statute without
threatening to apply physical force to the victim. The Court
concludes that the statute requires a threat to apply
physical force directly to the victim.
The
Court begins with the language of the statute:
“intentionally placing another person in reasonable
apprehension of immediate bodily harm with a deadly
weapon.” Kansas defines “deadly weapon” as
“an instrument which, from the manner it is used, is
calculated or likely to produce death or serious bodily
injury.”[69] Under the subjective analysis for
aggravated assault a harmless object can still qualify as a
deadly weapon. However, this will only happen when the user
intentionally “convince[s] the victim that it is a
dangerous weapon and the victim reasonably believes it is a
dangerous weapon.”[70]
Next,
Kansas defines “bodily harm” as “any
touching of the victim against the victim's will, with
physical force, in an intentional, hostile and aggravated
manner.”[71] Accordingly, the statute proscribes
“intentionally placing another person in reasonable
apprehension” of an immediate, unwanted touching, done
in an intentionally hostile and aggravated manner, with an
instrument the victim reasonably believes “is
calculated or likely to produce death or serious bodily
injury.”
Here,
the Court concludes that “intentionally placing another
person in reasonable apprehension of immediate bodily harm
with a deadly weapon” has as an element the threatened
use of “physical force.” In every circumstance,
the statute requires that the defendant make the victim
reasonably fear that the defendant will touch them-with a
weapon capable of causing serious bodily injury-in a hostile
and aggravated manner. In doing so, the defendant is at the
very least threatening the use of “physical” or
“violent” force-i.e., “force capable of
causing physical pain or injury to another
person.”[72]
Tenth
Circuit case law supports this proposition. In United
States v. Treto-Martinez, [73]the Tenth Circuit held
that “physical force is involved when a person
intentionally causes physical contact with another person
with a deadly weapon.”[74] The threatened use of
physical force, then, must be involved when a person
intentionally places another in reasonable apprehension of
unwanted physical contact with a deadly weapon.
Second,
both courts that have interpreted this exact statute reached
this same conclusion.
In
United States v. McDaniel, [75] a court in this District
held
that Kansas aggravated assault incorporates as an element the
use, attempted use, or threatened use of physical force. Like
the statutes at issue in Ramon Silva and
Nicholas, here aggravated assault requires a
defendant to knowingly cause “reasonable
apprehension of immediate bodily harm” with a deadly
weapon. As the court explained in Ramon Silva,
“even assuming ‘one could knowingly discharge a
firearm at or in the direction of an individual without
actually intending to injure him, ' the crime
‘still involve[s] the purposeful threatened
use of physical force against the person of another.'
” Unlike the statute at issue in Perez-Vargas,
here the statute does not allow for an aggravated assault
conviction on the basis of reckless or criminally negligent
conduct. The Kansas aggravated assault with a deadly weapon
statute does not allow for “other possibilities”
that cause bodily harm without the use of physical force,
such as the reckless discharge of a gun, the use of poison,
or the placement of a barrier in the road. Rather, to be
convicted under the statute, a defendant must knowingly cause
reasonable apprehension of bodily harm with a deadly weapon.
Although the statute refers to “reasonable apprehension
of bodily harm, ” the statute necessitates the use or
threatened use of physical force to create the
apprehension.[76]
Similarly,
in United States v. Price, [77] the Eighth Circuit Court
of Appeals held that K.S.A. § 21-3410(a) was a crime of
violence under the elements clause. In reaching this
decision, the court noted that the statute “requires
that the defendant make ...