from the United States District Court for the District of
Utah (D.C. No. 2:15-CR-00623-DB-1)
William Glaser, Attorney, Criminal Division, Appellate
Section, Department of Justice, Washington, D.C. (John W.
Huber, United States Attorney, and Ryan D. Tenney, Assistant
United States Attorney, Salt Lake City, Utah, on the briefs),
Benjamin C. McMurray, Assistant Federal Public Defender
(Kathryn N. Nester, Federal Public Defender, and Scott Keith
Wilson, Assistant Federal Public Defender, with him on the
brief), Salt Lake City, Utah, for Defendant-Appellee.
PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
decide whether Utah's second-degree aggravated-assault
offense categorically qualifies as a "crime of
violence" under the elements clause provided in the
federal sentencing guidelines. See U.S. Sentencing
Guidelines Manual § 4B1.2(a)(1) (U.S. Sentencing
Comm'n 2015). Because we hold that the Utah offense does
qualify, we reverse the district court's contrary
decision and remand for resentencing.
2016, Anthony Bettcher pleaded guilty to possessing a firearm
as a felon. See 18 U.S.C. § 922(g)(1).
Afterward, a probation officer reviewed Bettcher's past,
including his criminal history, and prepared a Presentence
Investigation Report (PSR).
informed the district court that in 2013, the State of Utah
had charged Bettcher with second-degree aggravated assault.
At the time,  Utah law defined simple assault as
(a) an attempt, with unlawful force or violence, to do bodily
injury to another;
(b) a threat, accompanied by a show of immediate force or
violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that
causes bodily injury to another or creates a substantial risk
of bodily injury to another.
Utah Code Ann. § 76-5-102(1) (LexisNexis
2012). To convict Bettcher of second-degree
aggravated assault, prosecutors had to prove the simple
assault, plus two additional elements: (1) that he used
either "(a) a dangerous weapon as defined in Section
76-5-601 or (b) other means or force likely to produce
death or serious bodily injury," id. §
76-5-103(1), and (2) that his conduct "result[ed] in
serious bodily injury," id. §
PSR, the probation officer recommended treating this earlier
conviction as a crime of violence, which if adopted would
enhance Bettcher's base offense level.See
U.S.S.G §§ 2K2.1(a)(4)(A), 4B1.2(a)(1) (2015). At
his sentencing hearing, Bettcher objected to the
crime-of-violence enhancement. He argued that crimes capable
of being committed recklessly don't categorically have as
an element the use of physical force against another person,
so they can't be crimes of violence under U.S.S.G. §
4B1.2(a)(1). And because the Utah legislature didn't
specify a mens rea (or provide strict liability) for
second-degree aggravated assault, "intent, knowledge, or
recklessness . . . suffice to establish criminal
responsibility." Utah Code Ann. § 76-2-102
(LexisNexis 2012); see State v. McElhaney, 579 P.2d
328, 328-29 (Utah 1978) (applying ...