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United States v. Love

United States District Court, D. Kansas

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GERREN LOVE, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Gerren Love’s Objection Number One and Objection Number Two to the Presentence Investigation Report (“PSR”) (Doc. 26), as well as Defendant’s Additional Objection to Presentence Investigation Report (Doc. 51) (“Objection Number Three”). As to Objection Number One, Defendant objects to Paragraph 18, which calculates his base offense level as 24 pursuant to United States Sentencing Guidelines (“USSG”) § 2K2.1(a)(2). Defendant also objects to Paragraph 24, which is an enhancement under the Armed Career Criminal Act (“ACCA”).[1] Due to his eligibility for the ACCA, his offense level was adjusted to 33 pursuant to USSG § 4B1.4. As to Objection Number Two, Defendant argues that, based on his Objection Number One, he should have a total offense level of 17 and a criminal history category of IV. As to Objection Number Three, Defendant argues that his 2013 conviction for possession with intent to distribute methamphetamine under K.S.A. § 21-5705(a)(1) cannot qualify as a “controlled substance offense” under USSG § 4B1.1 or a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii).

         In support of his Objections, Defendant has filed a Sentencing Memorandum (Doc. 34) and the parties have filed several responses and replies.[2] The Court held a sentencing hearing and heard oral argument on Defendant’s Objections Numbers One and Two on November 17, 2016, at which time the Court took the objections under advisement. After considering the objections and responses in the PSR, the sentencing memorandum responses and replies, and the parties’ arguments at the November 17 hearing, the Court is prepared to rule. For the reasons stated below, Defendant’s Objection Number One to the PSR is overruled as to application of USSG § 2K2.1(a) and the ACCA. Because USSG § 2K2.1(a) and the ACCA apply, Objection Number Two is also overruled. Defendant’s Objection Number Three is sustained.

         I. Background

         Defendant pleaded guilty on April 13, 2016 to knowingly and unlawfully possessing, as a felon, a firearm that had been transported in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) on October 11, 2015.[3] Prior to Defendant’s sentencing hearing, the United States Probation Office filed a PSR, in which it calculated Defendant’s base offense level as 24 pursuant to USSG § 2K2.1(a).[4] Section 2K2.1(a) describes the applicable base offense levels for offenses under § 922(g)(1), and provides that an offense involving a felon in possession of a firearm subsequent to sustaining two felony convictions of either a crime of violence or a controlled substance offense results in a base offense level of 24.[5]

         Further, the PSR enhanced Defendant’s sentence because Defendant had at least three prior convictions for a violent felony or serious drug offense, or both, which subjected him to the ACCA.[6] His offense level was calculated at 33 under USSG § 4B1.4. Defendant received a two-level decrease under USSG § 3E1.1(a) for accepting responsibility for the offense and a one-level decrease under USSG § 3E1.1(b). Thus, the total offense level was 30.

         The PSR identified three felony convictions that qualified as crimes of violence or controlled substance offenses under § 2K2.1(a)-

(1) a 1998 Kansas state conviction for aggravated battery and aggravated assault;
(2) a 2000 Kansas state conviction for second-degree murder, and
(3) a 2013 Kansas state conviction for cultivation/ distribution/ possession with intent to distribute methamphetamine.

         Further, the PSR identified four felony convictions that qualified as violent felonies or controlled substance offenses for purposes of the ACCA-

(1) a 1991 Kansas state conviction for attempted first-degree murder;
(2) a 1998 Kansas state conviction for aggravated battery and aggravated assault;
(3) a 2000 Kansas state conviction for second-degree murder, and
(4) a 2013 Kansas state conviction for cultivation/ distribution/ possession with intent to distribute methamphetamine.

         Defendant initially conceded that his conviction for possession with intent to distribute methamphetamine was a qualifying drug offense under § 2K2.1 and the ACCA.[7] Defendant, however, has since filed an additional objection challenging the applicability of § 2K2.1 and the ACCA to this offense.[8] The Government has conceded that the attempted first-degree murder conviction and the aggravated assault conviction are not violent felonies for purposes of the ACCA or crimes of violence for purposes of § 2K1.2(a).[9] Thus, the prior convictions at issue are: (1) the second-degree murder conviction; (2) the aggravated battery conviction; and (3) the possession with intent to distribute methamphetamine conviction.

         II. Discussion

         A. Objection Numbers One and Two

         Defendant contests the application of two Guideline provisions in Objection Number One in the PSR-(1) USSG § 2K2.1 and (2) the ACCA as applied through USSG § 4B1.4. Under USSG § 2K2.1, Defendant receives a base offense level of 24 if the defendant committed any part of the instant offense subsequent to attaining two felony convictions of a crime of violence or a controlled substance offense as defined in USSG § 4B1.2(a) and Application Note 1 of the commentary to § 4B1.2. Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) is an armed career criminal subject to a mandatory minimum of 15 years imprisonment if “[Defendant] has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another . . . .”[10] For the reasoning explained more fully below, the Court overrules Objection Number One to the PSR.[11]

         1. Defining Crimes of Violence or Violent Felonies

         The definition of crime of violence and violent felony is what is at issue in this case. Crime of violence (as used in USSG § 2K2.1 and defined in USSG § 4B1.2)[12] and violent felony (as used in the ACCA) are defined as an offense that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[13]

         The Supreme Court in United States v. Johnson held that the residual clause of the ACCA, which provides that violent felonies include crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” is unconstitutionally vague.[14] However, the Supreme Court in Beckles v. United States held that the identical residual clause of USSG § 4B1.2(a), which provides that crimes of violence include crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” is not void for vagueness under the reasoning in Johnson.[15] Subsection 1 is commonly referred to as the “elements clause,” and Subsection 2 before the residual clause is referred to as the “enumerated- offense clause.”[16]

         Prior to Beckles, the Tenth Circuit had consistently applied the same analysis to “crime of violence” under § 4B1.2 and “violent felony” under the analogous provision of the ACCA because the clauses are “virtually identical.”[17] Although Beckles abrogated such a holding as to the residual clause, the Tenth Circuit has not intimated that courts should employ different approaches for the elements clause and the enumerated offense clause between § 4B1.2 and the ACCA.[18] Thus, because the Court only reaches the application of the elements clause, the Court will consult cases analyzing the elements clause under USSG § 4B1.2 and the ACCA. For purposes of clarity, the Court will refer to both violent felonies for purposes of the ACCA and crimes of violence for purposes of § 2K2.1 interchangeably as violent felonies.

         i. The Elements Clause

         The elements clause defines violent felonies as crimes that “[have] as an element the use, attempted use, or threatened use of physical force against the person of another.”[19] As the Tenth Circuit instructs, the Court must analyze federal law to define the meaning of “use, attempted use, or threatened use of physical force” and Kansas state law to define the meaning of the substantive elements of the crime.[20] The elements clause has two requirements-the mens rea element[21] and the physical force element.[22]

         Although “physical force” is not defined in the statute, in Johnson v. United States, the Supreme Court addressed the meaning of “physical force” in the definition of violent felony under the ACCA.[23] The Court began by noting that the adjective “physical” is clear: “[i]t plainly refers to force exerted by and through concrete bodies-distinguishing physical force from, for example, intellectual force or emotional force.”[24] The Court went on to define “force,” as used under section 924(e)’s definition of “violent felony,” as “violent force-that is force capable of causing physical pain or injury to another person.”[25] In so holding, the Court rejected the common law meaning of force in the context of § 924(e)-that is, “the slightest offensive touching”-holding that it would be a “comical misfit with the defined term.”[26]

         To determine whether a crime meets the elements clause, the Tenth Circuit instructs the court to employ a two-step inquiry. First, “[the court] must identify the minimum ‘force’ required by [Kansas] law for the crime[s] [of second-degree murder and aggravated battery].”[27]Second, the court must “determine if that force categorically fits the definition of physical force” required under the ACCA or § 4B1.2.[28]

         ii. The Categorical or Modified Categorical Approach

         To determine whether a particular felony is a violent felony, courts employ a categorical approach that “do[es] not consider the facts underlying the prior conviction.”[29] Using the categorical approach, the inquiry is whether the crime’s elements satisfy the ACCA’s definition of violent felony or § 4B1.2(a)’s definition of crime of violence.[30] Courts only use the modified categorical approach when a statute is divisible, which means the statute of conviction “sets out one or more elements of the offense in the alternative.”[31] The modified categorical approach “allows a court to peer around the statute of conviction and examine certain record documents underlying the defendant's prior offense.”[32] When employing the modified categorical approach, “[c]ourts consult record documents from the defendant's prior case for the limited purpose of identifying which of the statute's alternative elements formed the basis of the prior conviction.”[33]Once the court identifies the elements, courts “can then do what the categorical approach demands” and compare those to the ACCA or § 4B1.2 definitions.

         First, Defendant was convicted of second-degree murder under K.S.A § 21-3402. K.S.A. § 21-3402(a) reads:

         Murder in the second degree is the killing of a human being committed:

(a) Intentionally; or
(b) Unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.[34]

K.S.A. § 21-3402 is a divisible statute with multiple alternative elements, so the Court must employ the modified categorical approach. According to the entry of judgment, Defendant was convicted of second-degree murder (intentional) pursuant to K.S.A. § 21-3402(a).[35]

         Second, Defendant was also convicted of aggravated battery under K.S.A. § 21-3414. K.S.A. § 21-3414 reads:

         Aggravated battery is:

(1) (A)Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.[36]

K.S.A. § 21-3414 is a divisible statute with multiple alternative elements, so the Court must again employ the modified categorical approach. According to the journal entry for his aggravated assault and battery case, Defendant was convicted of a severity level 4 person felony. Because he was convicted of a severity level 4 person felony, Defendant was convicted of aggravated battery pursuant to K.S.A. § 21-3414(a)(1)(A).[37] Defendant does not contest that K.S.A. § 21-3402(a)(1)(A) is the subsection of conviction.[38] Thus, the Court must determine whether second degree murder under K.S.A. § 21-3402(a) and aggravated assault under K.S.A. § 21-3414(a)(1)(A) are violent felonies for purposes of the ACCA or crimes of violence for purposes of § 2K1.2.

         2. Second-Degree Murder (K.S.A. § 21-3402(a))

         The Government makes one argument for application of the ACCA-second-degree murder as defined in K.S.A. § 21-3402(a) meets the elements clause as it has an element “the use, attempted use, or threatened use of physical force against the person of another.” Alternatively, if the Court were to determine that the ACCA was inapplicable, the Government makes two arguments for application of USSG § 2K1.2-(1) second-degree murder meets the elements clause and (2) second-degree murders meets the generic definition of murder for purposes of meeting the enumerated offense clause.[39] For the reasons detailed more fully below, the Court finds that second-degree murder under K.S.A. § 21-3402(a) meets the elements clause for purposes of the ACCA and § 2K1.2. The Court does not reach the issue of application of the enumerated offense clause.

         i. Indirect or Direct Application of Physical Force

         Defendant argues that second-degree murder under K.S.A. § 21-3402(a) is not a violent felony under the elements clause because it does not have as an element “the use, attempted use, or threatened use of physical force.” Defendant makes this assertion based on Tenth Circuit case law subsequent to Johnson that distinguishes between statutes that require the application or threat of force as crimes of violence and statutes that focus on the resulting injury that are not crimes of violence.[40] Based on this case law, Defendant argues that Kansas’s second-degree murder statute does not have a force element because the crime focuses on the death of the victim instead of the force required to commit the offense. Defendant uses the example of cutting the victim’s brakeline or poisoning the victim’s coffee as means to cause death without the application of physical force.[41]

         The Government responds that the Court should not rely on the Tenth Circuit case law Defendant cited because its rationale has been abrogated by United States v. Castleman.[42] In Castleman, the Supreme Court considered the definition of “misdemeanor crime of domestic violence” in 18 U.S.C. § 922(g)(9).[43] Like crime of violence in § 4B1.2(a)(1) or violent felony in the ACCA, the term “misdemeanor crime of domestic violence” is defined to include offenses that have “as an element, the use or attempted use of physical force.”[44] In Castleman, the Supreme Court attempted to synthesize the various definitions of physical, force, and use, and concluded:

[A]s we explained in Johnson, “physical force” is simply “force exerted by and through concrete bodies,” as opposed to “intellectual force or emotional force.” 559 U.S., at 138, 130 S.Ct. 1265. And the common-law concept of “force” encompasses even its indirect application. “Force” in this sense “describ[es] one of the elements of the common-law crime of battery,” id., at 139, 130 S.Ct. 1265, and “[t]he force used” in battery “need not be applied directly to the body of the victim.” 2 W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003). “[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,” such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N.C. 677, 28 S.E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va.App. 463, 534 S.E.2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense.
Second, the knowing or intentional application of force is a “use” of force. Castleman is correct that under Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the word “use” “conveys the idea that the thing used (here, ‘physical force’) has been made the user's instrument.” Brief for Respondent 37. But he errs in arguing that although “[p]oison may have ‘forceful physical properties' as a matter of organic chemistry, ... no one would say that a poisoner ‘employs' force or ‘carries out a purpose by means of force’ when he or she sprinkles poison in a victim's drink,” ibid. The “use of force” in Castleman's example is not the act of “sprinkl[ing]” the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman's logic, after all, one could say that pulling the trigger on a gun is not a “use of force” because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the “use” of force must entail “a higher degree of intent than negligent or merely accidental conduct,” 543 U.S., at 9, 125 S.Ct. 377; it did not hold that the word “use” somehow alters the meaning of “force.”[45]

         Justice Scalia, concurring in part and in the Court’s judgment, noted that the Tennessee assault statute[46] that Castleman was convicted under would have satisfied even Johnson’s definition of “violent force” “since it is impossible to cause bodily injury without using force ‘capable of’ producing that result.”[47] The Castleman majority expressly declined to reach the issue of “[w]hether or not the causation of bodily injury necessarily entails violent force.”[48] For purposes of a misdemeanor crime of violence, in Castleman, and unlike in Johnson, the Court concluded that “force” should be given its common law meaning-namely, offensive touching.[49]

         Several circuits have addressed whether Castleman applies to the ACCA and §4B1.2. The First Circuit,[50] the Third Circuit,[51] the Fourth Circuit,[52] the Seventh Circuit,[53] the Eighth Circuit,[54] the Eleventh Circuit,[55] and the D.C. Circuit[56] adopted or cited with approval Castleman’s definition of physical force in the ACCA and § 4B1.2 context, which would allow applications of direct or indirect force to qualify as physical force. The Second Circuit has adopted Castleman’s definition of physical force in determining whether Hobbs Act Robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3).[57] The Ninth Circuit adopted Castleman’s definition of physical force in determining whether a prior Texas aggravated assault conviction constituted a crime of violence for purposes of USSG§ 2L1.2(b)(1)(A)(ii) sentencing enhancement to a sentence for illegal reentry after deportation.[58] However, the Fifth Circuit[59]and the Sixth Circuit[60] have declined to adopt Castleman’s definition outside of the misdemeanor crime of domestic violence context. At least three district courts in the Tenth Circuit, including this Court, have found that Castleman abrogates or limits Perez-Vargas’s holding.[61]

         The Government argues that Castleman supports the proposition that (1) an indirect application of physical force constitutes a use of force under the ACCA and § 2K2.1(a), just as it does under § 921(a)(33)(A)(ii) for purposes of a “misdemeanor crime of domestic violence” and (2) if the quantum of physical force indirectly applied amounts to “violent force-that is, force capable of causing physical pain or injury to another person,”[62] then the indirect application of force qualifies as a violent felony under the elements clause. Defendant responds that Castleman’s definition of physical force is inapplicable because it was in the context of defining a misdemeanor crime of domestic violence, and the Supreme Court has already declined to read the common law meaning of force into the ACCA’s, and thereby § 4B1.2’s, definition of violent felony or crime of violence.[63] Therefore, Defendant argues that Tenth Circuit precedent is binding given Castleman is not contrary.[64]

         ii. Recent Tenth Circuit Case Law on Application of Physical Force

         Since the final briefing in this case, the Tenth Circuit has provided guidance on the meaning of physical force. In United States v. Harris, the Tenth Circuit addressed whether Colorado’s robbery statute “has an element the use, attempted use, or threatened use of physical force” for purposes of the ACCA.[65] In determining whether the robbery statute met the elements clause, the Tenth Circuit explained that the force element cannot be satisfied by the slightest offensive touching as would be understood in the common law battery context.[66] In construing the meaning of physical force, the Tenth Circuit references the Supreme Court requirement of a showing of “a substantial degree of force,” “strong physical force,” or “powerful force,” which is different than the force for common law battery.[67] The Tenth Circuit cited Justice Scalia’s concurrence in Castleman for the proposition that the force necessary to meet this showing could include conduct such as “[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling.”[68] Ultimately, the Tenth Circuit defined physical force as “violent force, or force capable of causing physical pain or injury to another person.”[69]

         The Colorado robbery statute addressed in Harris allowed for conviction if a person “knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation.”[70] When analyzing robbery by force in Colorado, the Tenth Circuit held that it “categorically matches the definition of ‘physical force’ assigned by the Supreme Court in Johnson[].”[71] The Tenth Circuit went on to conclude in dicta that robbery by constructive force-i.e. threats or intimidation-also required the use or threatened use of force for purposes of meeting the definition of physical force.[72] The Tenth Circuit found it “more theoretical than realistic that conduct (or threatened conduct) not equating to physical force would be prosecuted as robbery in Colorado” based on Colorado case law, so robbery in Colorado was found a violent felony for purposes of the ACCA.[73]

         By contrast, in United States v. Nicholas, the Tenth Circuit addressed whether the degree of force required to commit robbery in Kansas rose to the level of physical force to establish a violent felony for purposes of the ACCA.[74] Defendant was convicted under K.S.A. § 21-3426 (1999), which defined robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” First, the Tenth Circuit determined based on Kansas case law that Kansas robbery was satisfied with de minimis physical contact, including mere purse snatching supporting a conviction.[75] Second, the Tenth Circuit concluded that Kansas robbery does not necessarily require the use, attempted use, or threatened use of violent force. It came to this conclusion based on other circuits determining similar robbery statutes to not be violent felonies.[76] And, it distinguished the Kansas robbery statute from Harris and similarly worded robbery statutes based on the lack of an explicit element of violence in the statute or state authority demonstrating a reasonable probability that state courts would apply the statute to non-violent conduct.[77]

         Following the guidance in Harris and Nicholas, the Tenth Circuit has applied the physical force inquiry to several other statutes. In United States v. Lee, the Tenth Circuit held that Florida’s statute for resisting, obstructing, or opposing an officer with violence, which required “knowingly and willfully resisting, obstructing or opposing the execution of legal process, by offering or doing violence to the person of the officer,” was not a violent felony.[78]The Tenth Circuit came to this conclusion because the minimum conduct criminalized in Florida included “wiggling and struggling” or “clipping an officer’s hand with a rearview mirror,” which was not violent force.[79]

         In United States v. Ama, the Tenth Circuit considered whether a federal criminal statute that makes it unlawful to “forcibly assault[], resist[], oppose[], impede[], intimidate[], or interfere[] with” a federal employee or officer while he or she performed official duties requires physical force for purposes of the ACCA.[80] The Tenth Circuit determined that conduct sustaining a conviction included: spitting and throwing liquid substances on a federal employee, chasing after and bumping into a federal employee so long as some force was used, and jolting a federal employee’s arm.[81] Based on this, the Tenth Circuit concluded that “mere forcible contact suffices to sustain a conviction,” and that, accordingly, “a felony conviction under [the federal statute] is not a violent felony.”[82]

         In United States v. Hammons, the Tenth Circuit considered whether “the intentional discharge of any kind of firearm, crossbow, or other weapon in conscious disregard for the safety of another” had as an element physical force.[83] The government argued that “other weapons” could be an instrument that deploys hazardous chemicals, which would be indirect physical force rather than physical force.[84] The Tenth Circuit rejected such an argument because discharge implied physical action, the legislature intended to punish willful use of force or violence when it enacted the statute, and the chemical weapon example was “legal imagination” rather than a probability.[85] Thus, the Tenth Circuit found an element of physical force, so this qualified as a violent felony.[86] Most importantly, the Tenth Circuit suggested in dicta that United States v. Rodriguez-Enriquez, which holds indirect means of physical force are not a use of physical force,[87] may not be good law in light of Castleman.[88]

         iii. Kansas Law on Second-Degree Murder

         With the definition of physical force provided in Harris and Nicholas, the Court may turn to whether Kansas’s second-degree murder statute has as an element “the use, attempted use, or threatened use of physical force.” First, the Court must determine the minimum force necessary under Kansas law to support a second-degree murder conviction under K.S.A. § 21-3402(a). To be convicted of second-degree murder in Kansas, subsection (a) requires “the killing of a human being committed . . . [i]ntentionally.”[89] The elements of subsection (a) are (1) death of a human being, (2) intent to kill, and (3) causation.[90]

         Based on these elements, the Court must start with the Kansas Supreme Court’s recent interpretation of the second-degree murder statute. Kansas case law is sparse regarding the force necessary, if any, to sustain a conviction. In State v. Deal, the Kansas Supreme Court announced that the focus on the statute was on whether the killing-i.e. the result-was intentional.[91] It explicitly rejected the argument that the statute focused on the conduct being intentional as opposed to whether the result (killing) was intentional.[92] “K.S.A. § 21-3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.”[93] The Kansas Supreme Court has explained that “while a conviction for intentional-second-degree murder requires proof that the defendant intentionally killed a human being, this specific intent may be proven by the acts of the defendant and the inferences deducible from those acts.”[94] For example, where the defendant stabbed the victim in the heart, the jury could reasonably deduce that the defendant had intended to kill.[95]

         Defendant does not point the Court to second-degree murder convictions sustained for indirect applications of force, like poisoning, walling someone in a crypt, or pushing a barricade in front of a moving car. While it may be possible for the statute to be satisfied by such conduct and the language above does not suggest to the contrary, the Court finds that prosecution from employing such conduct to commit second-degree murder is “legal imagination” rather than “realistically probab[le].”[96] Rather, the conduct that satisfies the second-degree murder statute employs direct physical force, including: shooting the victim,[97] stabbing the victim,[98] hitting the victim with an object,[99] strangling the victim,[100] and pushing the victim over a railing.[101] All of the conduct that Kansas has prosecuted and convicted as second-degree murder fits squarely within or exceeds the physical force the Tenth Circuit has blessed-conduct such as “[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling.”[102] There is no evidence that de minimis physical contact has sustained a conviction under the statute.

         The Court did find two Kansas intentional second-degree murder cases that involved indirect applications of physical force. First, in State v. Burrow, the defendants were convicted under a prior version of the intentional second-degree murder statute when they badly beat the victim, injected him with drugs, struck him on the Adam’s apple, and buried him.[103] Thus, both direct and indirect applications of force were applied to cause death. Second, in State v. Naramore, the defendant was convicted of intentional second-degree murder for his decision to withdraw respiratory support from an eighty-one-year-old diabetic male patient who had suffered a stroke.[104] However, the Kansas Court of Appeals reversed his conviction.[105] These cases do not indicate a “realistic probability” that de minimis physical contact or even indirect physical contact would be prosecuted as second-degree murder.[106]

         iv. Second-Degree Murder Requiring Use of Physical Force

         Second, the court must consider whether shooting, stabbing, hitting someone with an object, strangling, or pushing someone down the stairs fits the definition of physical force under the ACCA and § 4B1.2. As the Tenth Circuit has explained, often the application of §2K2.1 and the ACCA “turns on parsing near-synonyms in decades-old opinions, opinions whose authors did not contemplate that such a loss of liberty” would result.[107] Based on the convictions sustained for second-degree murder under Kansas law, the Court cannot find a “realistic probability” that conduct that would not be “violent force, or force capable of causing physical pain or injury to another” could be prosecuted under this statute.

         The Tenth Circuit has not addressed whether murder would qualify as a violent felony under the elements clause. However, the Fourth Circuit recently considered whether a federal second-degree murder in retaliation statute would qualify as a violent felony under the elements clause in In re Irby.[108] The statute at issue punished “intentionally kill[ing] another person in retaliation for, inter alia, providing a law enforcement officer with ‘any information’ regarding ‘the commission’ of a ‘Federal offense.’”[109] The Fourth Circuit adopted the approach taken in Castleman, and concluded that while the statute could be satisfied with indirect uses of force, like sprinkling poison, this was still a use of force.[110] Further, the Fourth Circuit found it goes against common senses that the most morally repugnant crime-murder-would not be a crime of violence “while at the same time permitting many less-serious crime to be so classified.”[111]Thus, the Fourth Circuit held that federal second degree retaliatory murder is a crime of violence under the elements clause “because unlawfully killing another human being requires the use of force ‘capable of causing physical pain or injury to another person.’”[112] The language of the statute at issue here tracks very similar to the first clause of the statute at issue in Irby- “intentionally kill[ing] another person.” Although this is a holding and approach not yet adopted by the Tenth Circuit, the Court finds this case persuasive as it is the only circuit case applying the elements clause to murder in the ACCA and § 4B1.2 context.

         Like the Fourth Circuit, the district courts considering whether murder is a violent felony have resoundingly answered affirmatively. Several district courts in the Tenth Circuit have also found that second-degree murder is a violent felony under the elements clause.[113] Further, other district courts outside of the Tenth Circuit have found murder is a violent felony under the elements clause.[114] The parties do not cite nor is the Court aware of any court, district or appellate level, holding murder is not a violent felony. As nearly all these courts have explained, it goes against common sense to hold otherwise.

         This Court recently considered whether a Missouri second-degree murder statute qualified as a violent felony under the elements clause in United States v. Watts.[115] In Watts, the defendant was convicted under the second-degree felony murder statute, which allowed for conviction if a person “committed or attempted to commit any felony and, in the perpetration or attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed . . . .”[116] This Court noted the expansiveness of the statute, including not requiring the defendant to be the actual killer and the underlying felonies did not have to be violent.[117] Because the underlying felony used to sustain the conviction may not require “violent force, or force capable of causing physical pain or injury to another,” the Court found that second-degree felony murder in Missouri did not meet the elements clause.[118] Here, the statute is not a felony-murder statute, so there is no issue of an underlying felony used to sustain the conviction being a non-violent felony. Thus, this case is distinguishable from Watts.

         Ultimately, the Court concludes second-degree murder meets the elements clause. It reaches this conclusion without taking a position on the application of Castleman to § 4B1.2 and the ACCA. The Tenth Circuit has not taken such a position on the matter, so this Court declines the invitation to do so. Because the Court concludes that Kansas second-degree murder is only prosecuted with direct applications of force amounting to “violent force,” it is not necessary to decide whether the application of indirect force qualifies. However, the Court acknowledges that there is certainly a question of whether Perez-Vargas and prodigy remain good law in light of Castleman. The Tenth Circuit has intimated as much,[119] and to the extent the Tenth Circuit adopts Castleman, this statute would undoubtedly still meet the elements clause. Regardless, second-degree murder in Kansas is a violent felony.

         3. Aggravated Battery (K.S.A. § 21-3414(a)(1)(A))

         The Government makes one argument for application of the ACCA-aggravated battery as defined in K.S.A. § 21-3414(a)(1)(A) meets the elements clause as it has an element “the use, attempted use, or threatened use of physical force against the person of another.” According to the Government, this is so based on the application of Castleman and the Tenth Circuit decision in United States v. Treto-Martinez, which held that K.S.A. § 21-3414(a)(1)(C) was a crime of violence.[120] Alternatively, if the Court were to determine that the ACCA was inapplicable, the Government makes two arguments for application of USSG § 2K1.2-(1) aggravated battery meets the elements clause and (2) aggravated battery meets the generic definition of aggravated assault for purposes of meeting the enumerated offense clause.[121] For the reasons detailed more fully below, the Court finds that aggravated battery under K.S.A. § 21-3414(a)(1)(A) does meet the elements clause. The Court need not reach a decision regarding the enumerated offense clause.

         i. Kansas Law on Aggravated Battery

         First, the Court must look to how Kansas courts define the aggravated battery statute in order to analyze whether it meets the elements clause. The elements of the conduct prohibited by subsection (a)(1)(A) of the Kansas statute are: (1) intentionally (2) causing great bodily harm (3) to another person (4) or disfigurement (4) to another person.[122] In State v. Hobbs, the Kansas Supreme Court held that the only actus reus prohibited under the aggravated battery statute was “causing great bodily harm to another person or disfigurement of another person.”[123] The Kansas Supreme Court concluded that “[i]t matters not how this is achieved.”[124]

         The Kansas Supreme Court has also defined the term “bodily harm” within the meaning of the statute. Bodily harm is defined as follows:

Bodily harm has been defined as any touching of the victim against the victim's will, with physical force, in an intentional hostile and aggravated manner. The word “great” distinguishes the bodily harm necessary in the offense of aggravated battery from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.[125]

         This definition of “bodily harm” requires that the contact be “in an intentional hostile and aggravated manner.”[126] Hostile is defined as “1. Adverse. 2. Showing ill will or desire to harm. 3. Antagonistic; unfriendly.”[127] And, aggravated means “made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.”[128] Therefore, subsection (a)(1)(A) requires hostile or aggravated, intentional contact with the victim that is more than mere touching. Conduct-such as walling an adversary in a crypt, lying to a swimmer about the water safety of a quarry pond, or hanging arsenic-infused wallpaper in a bedroom[129]-would not fall within (a)(1)(A)’s coverage. The obvious implication from such a definition is the amount of physical force required for bodily harm is greater than that necessary for a simple battery. Seemingly, this falls squarely within the definition of “violent force, or force capable of causing physical pain or injury to another person” as opposed to mere offensive touching.[130]

         State v. Castro-Lule provides a particularly relevant example for how aggravated battery under K.S.A. § 21-3414(a)(1)(A) is prosecuted in Kansas.[131] Defendant was charged with six counts of aggravated battery and assault, and three counts each of child abuse and child endangerment.[132] The six counts of aggravated battery involved using a tortilla warmer to burn the child’s palms, hitting the child with a slat of a chair to knock out his front teeth, using a cord to beat the child resulting in scars and disfigurement, and twisting his arm behind his back to break it.[133] By contrast, beatings and torture of the child were prosecuted as child abuse, and exposure to deplorable and unsafe conditions was prosecuted as child endangerment.[134]Therefore, conduct that would clearly qualify as “physical force” seems to fall within the conduct prosecuted as aggravated battery, but conduct that may fall outside the scope of “physical ...


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