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United States v. Bettcher

United States Court of Appeals, Tenth Circuit

December 21, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
ANTHONY WAYNE BETTCHER, Defendant-Appellee.

          Appeal 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), for Plaintiff-Appellant.

          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.

          Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE.

         We must 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.[1] 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.

         BACKGROUND

         In May 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).

         The PSR informed the district court that in 2013, the State of Utah had charged Bettcher with second-degree aggravated assault. At the time, [2] Utah law defined simple assault as follows:

(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).[3] 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. § 76-5-103(2)(b).

         In the PSR, the probation officer recommended treating this earlier conviction as a crime of violence, which if adopted would enhance Bettcher's base offense level.[4]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 ...


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