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United States v. Miller

United States District Court, D. Kansas

June 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TJAY B. MILLER, Defendant.

          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”) prepared in this case (Doc. 43). Defendant Tjay Miller objects to Paragraph 34 of the PSR, arguing that his 2012 conviction in Kansas state court for aggravated battery should not have been classified as a “crime of violence.” The Court is issuing this memorandum and order prior to Miller's sentencing hearing scheduled for June 30, 2017. Because this Court has previously held that Kansas aggravated battery qualifies as a crime of violence, the Court denies Miller's objection.

         I. Background

         On February 10, 2017, Miller pleaded guilty to possession of a firearm as a user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Before Miller's sentencing, the U.S. Probation Office prepared a PSR using the 2016 Guidelines Manual. The guideline for § 922(g) offenses is found in § 2K2.1 of the Guidelines. That section provides that an offense involving the possession of a firearm after sustaining at least one felony conviction of either a “crime of violence” or a “controlled substance offense” has a base offense level of 20.[1] But if the offender has not previously been convicted of a “crime of violence, ” and is instead merely a “prohibited person at the time the defendant committed the instant offense, ” then the base offense level would only be 14.[2]

         In 2012, Miller pleaded guilty in a Kansas state court to one count of burglary, one count of aggravated battery, and one count of misdemeanor battery. Count II of the Amended Information alleged:

on or about the 23rd day of October 2011, . . . one TJAY B. MILLER did then and there unlawfully and knowingly cause bodily harm to another person . . . in any manner whereby great bodily harm, disfigurement, or death can be inflicted.

         The Probation Office concluded that Miller's conviction for aggravated battery qualified as a “crime of violence, ” and applied the base offense level of 20 accordingly. The Probation Office explained that the “crime of violence” determination was based off of this Court's earlier decision in United States v. Williams.[3]

         Miller objects to this determination. He argues that this Court's “ruling in Williams was wrongly decided.” According to Miller, his conviction for aggravated battery is not a “crime of violence” and his base offense level should only be 14. The Court disagrees.

         II. Discussion

         The issue currently before this Court is whether aggravated battery, as defined in K.S.A. § 21-5413, qualifies as a “crime of violence, ” thus warranting a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). The term “crime of violence” means 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” (the “elements clause”).[4]

         Although “physical force” is not defined by the Guidelines, the U.S. Supreme Court held in Johnson v. United States[5] that “physical force” means “violent force, ” which is a “force capable of causing physical pain or injury to another person.”[6] Mere offensive touching will not suffice.[7] Accordingly, Miller's prior conviction would only qualify as a crime of violence if the statute requires the use, attempted use, or threatened use of violent, physical force against the person of another.

         The parties agree that Miller's aggravated battery conviction was under K.S.A. § 21-5413(b)(1)(B), which was defined at the time as “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.” This Court held in Williams that subsection (b)(1)(B) is a divisible statute “because it sets out elements of the offense in the alternative, creating two distinct offenses.”[8] First, the statute criminalizes “knowingly causing bodily harm to another person 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]Accordingly, the Court must employ the modified categorical approach to determine which of these alternative offenses formed the basis of Miller's prior conviction.[11]

         The Amended Information relating to Miller's conviction clearly shows that he was charged with the second alternative-knowingly causing bodily harm to another person “in any manner whereby great bodily harm, disfigurement or death can be inflicted.”[12] Thus, the Court must now determine whether that offense constitutes a “crime of violence” under the Guidelines' elements clause. Put another way, the issue becomes whether the offense “has as an element the use, attempted use, or threatened use” of violent, physical force against the person of another.[13]

         Miller argues that an offense can only qualify as a “crime of violence” under the elements clause by having an element of “active, intentional employment of physical force.”[14] But according to Miller, the Kansas aggravated battery statute focuses “on the result of the defendant's conduct, bodily harm, rather than the manner in which the harm was caused.” Additionally, “the statute does not even require actual physical contact between the defendant and the victim.” In other words, aggravated battery does not require the application, threatened application, or attempted application of physical force whatsoever. Thus, he argues, aggravated battery is categorically not a crime of violence.

         A. United States v. Williams

         In Williams, this Court held that “both aggravated battery offenses contained in K.S.A. § 21-5413(b)(1)(B) constitute crimes of violence.”[15] First, “[k]knowingly causing bodily harm to another person with a deadly weapon has as an element the use and threatened use of physical force.”[16] And second, “knowingly causing bodily harm in any manner whereby great bodily harm, disfigurement or death can be inflicted has as an element the use and threatened use of physical force.”[17]

Regarding the second conclusion, that Miller now contests, this Court wrote:
Clearly, if an offender causes another person bodily harm, in a manner “whereby great bodily harm, disfigurement or death can be inflicted” he has used “force capable of causing physical pain or injury to another person.” The Tenth Circuit agrees. “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 force.' ”[18]

         This Court also looked to similar cases outside of the Tenth Circuit, including United States v. Flores-Gallo.[19] In Flores-Gallo, the Fifth Circuit interpreted a previous version of Kansas's aggravated battery statute, and addressed a provision with nearly identical language to the current provision at issue in Williams and this present case. This Court quoted the following language from Flores-Gallo:

The statute requires that the harm must be conducted in a “manner whereby great bodily harm, disfigurement or death can be inflicted.” So, in order to be convicted under the statute the defendant must with ill will or hostility intentionally use force that is more than mere touching and has the capability of causing significant injury.[20]

         Accordingly, the Fifth Circuit held that “the hostile intent and force used in conjunction with the risk of significant injury creates an offense which has as an element at least the threatened use of force that is capable of causing physical ...


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