United States v. Williams ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 20, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-3071
TRAYON L. WILLIAMS,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:15-CR-10181-EFM-1)
_________________________________
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender, Kirk C. Redmond, First Assistant Federal Public Defender, with
him on the briefs), Kansas Federal Public Defender Office, Topeka,
Kansas, for Defendant-Appellant.
Jared Maag, Assistant United States Attorney (Thomas E. Beall, United
States Attorney, James A. Brown, Assistant United States Attorney, on the
brief), Topeka, Kansas, for Plaintiff-Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mr. Trayon Williams was convicted of possessing a firearm after a
felony conviction. See 18 U.S.C. § 922(g). The conviction led the district
court to consider the sentence, beginning (as required) with the sentencing
guidelines. See Peugh v. United States, 569 U.S. 530, 541 (2013). To apply
the guidelines, the district court classified Mr. Williams’s prior conviction
for aggravated battery under Kansas law as a crime of violence. This
classification triggered enhancement of the offense level. U.S. Sentencing
Guidelines Manual § 2K2.1(a)(4)(A).
Mr. Williams challenges the enhancement on the ground that his
prior conviction was not for a crime of violence. Mr. Williams is mistaken.
In Kansas, aggravated battery is a crime of violence because the crime
involves general criminal intent, requiring the knowing use of force. Thus,
we affirm.
I. Mr. Williams’s sentence level was enhanced under § 2K2.1.
Following a guilty plea, a probation officer prepared a presentence
investigation report for Mr. Williams. The probation officer did not treat
aggravated battery as a crime of violence under § 2K2.1 of the sentencing
guidelines. As a result, the probation officer calculated the guideline range
at 27 to 33 months’ imprisonment.
The government objected, arguing that the Kansas crime of
aggravated battery constituted a crime of violence. The district court
2
sustained the objection and set the guideline range at 46 to 57 months. 1 Mr.
Williams appeals the enhancement under § 2K2.1.
II. We must determine whether aggravated battery in Kansas
constitutes a crime of violence.
Section 2K2.1 requires enhancement of the offense level when the
defendant has a prior conviction for a “crime of violence.” The definition
of “crime of violence” appears in § 4B1.2. U.S. Sentencing Guidelines
Manual § 2K2.1, cmt. n.1. There a “crime of violence” is defined as a
felony that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 4B1.2(a)(1). Focusing
on this definition, Mr. Williams argues that his conviction does not
constitute a crime of violence.
To address this argument, we engage in de novo review. See United
States v. Wray, 776 F.3d 1182, 1184 (10th Cir. 2015). This review requires
us to compare the statutory elements to the guidelines’ definition of a
“crime of violence.” See Mathis v. United States, ___ U.S. ___, 136 S. Ct.
2243, 2248 (2016). We must “look at (and not beyond) the statute of
conviction in order to identify the elements of the offense.” United States
v. Zuniga-Soto, 527 F.3d 1110, 1120 (10th Cir. 2008) (emphasis in
original).
1
After calculating the guideline range, the district court departed
downward to 40 months’ imprisonment.
3
Mr. Williams was convicted of “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.” Kan. Stat. Ann.
§ 21-5413(b)(1)(B). 2 The resulting issue is whether this crime constitutes a
crime of violence. 3 Id. The district court answered “yes.”
Mr. Williams argues that
 aggravated battery in Kansas cannot constitute a crime of
violence because the crime can be committed recklessly and
unintentionally and
 causing bodily harm does not have “as an element the use,
attempted use, or threatened use of physical force against the
person of another.” U.S. Sentencing Guidelines Manual
§ 4B1.2(a)(1).
Both arguments fail.
III. The mens rea for aggravated battery in Kansas suffices for a
crime of violence.
Mr. Williams argues that the mens rea requirement for aggravated
battery does not suffice for a crime of violence. For this argument, Mr.
2
The parties have agreed that the Kansas statute on aggravated battery
is divisible and that Mr. Williams was convicted under Kan. Stat. Ann.
§ 21-5413(b)(1)(B).
3
The Kansas Supreme Court has held that the use of a deadly weapon
constitutes a means of committing aggravated battery rather than an
element. State v. Ultreras, 295 P.3d 1020, 1036 (Kan. 2013). This holding
requires us to treat aggravated battery in Kansas as a single crime even
though the crime can be committed through different means. See Mathis v.
United States, ___ U.S. ___, 136 S. Ct. 2243, 2256 (2016).
4
Williams asserts that his statute of conviction encompasses conduct that is
reckless and unintentional. We reject Mr. Williams’s argument.
A. “Knowing” conduct can constitute a “crime of violence”
under § 2K2.1.
Under our prior opinions, statutes permitting convictions for reckless
conduct do not qualify as crimes of violence under the guidelines. United
States v. Zuniga-Soto, 527 F.3d 1110, 1123 (10th Cir. 2008); United States
v. Duran, 696 F.3d 1089, 1093 (10th Cir. 2014). 4 To qualify, the crime
must require intent or purpose. United States v. Armijo, 651 F.3d 1226,
1237 (10th Cir. 2011); see Duran, 696 F.3d at 1093 (“The sentencing
enhancement for a prior felony crime of violence may therefore only apply
to [the defendant] if the mens rea for his conviction required intentional
conduct, not recklessness.”).
Aggravated battery in Kansas requires “knowing” conduct. See p. 4,
above. But we have not yet addressed whether a mens rea of “knowing” can
4
The government argues that these opinions have been superseded by
Voisine v. United States, ___ U.S. ___, 136 S. Ct. 2272 (2016). Voisine held
that a misdemeanor crime of domestic violence can be committed
recklessly. 136 S. Ct. at 2280. According to the government, Voisine
applies to the “crime of violence” designation under the sentencing
guidelines. As discussed below, however, Kansas’s aggravated-battery
statute requires “knowing” conduct, which is sufficient under the
guidelines. Thus, we need not decide whether reckless conduct would also
suffice under the guidelines. See Champagne Metals v. Ken-Mac Metals,
Inc., 458 F.3d 1073, 1088 (10th Cir. 2006) (stating that we can affirm on
any ground supported by the record).
5
qualify for a crime of violence under the guidelines. We now hold that
“knowing” conduct is sufficient for a crime of violence under § 2K2.1.
We have concluded that offenses with a mens rea of “knowing” can
constitute violent felonies under the Armed Career Criminal Act (ACCA).
See, e.g., United States v. Hernandez, 568 F.3d 827, 829-30 (10th Cir.
2009) (conviction for “knowingly discharg[ing] a firearm at or in the
direction of . . . one or more individuals” qualified as a violent felony
under the ACCA); United States v. Herron, 432 F.3d 1127, 1137-38 (10th
Cir. 2005) (conviction for “knowingly plac[ing] or attempt[ing] to place
another person in fear of imminent serious bodily injury” qualified as a
violent felony under the ACCA). The ACCA’s definition of “violent
felony” is virtually identical to the guidelines’ definition of a “crime of
violence.” Compare 18 U.S.C. § 924(e)(1), with U.S. Sentencing
Guidelines Manual § 4B1.2(a). Thus, we have drawn on our ACCA case
law when interpreting the guideline term “crime of violence.” See United
States v. Martinez, 602 F.3d 1166, 1173 (10th Cir. 2010) (“[W]e have
looked to interpretations of the ACCA to guide our reading of
§ 4B1.2(a).”); see also United States v. Armijo, 651 F.3d 1226, 1231 (10th
Cir. 2011) (stating that “this court has concluded analysis under the ACCA
applies equally to § 4B1.2(a)”).
Our ACCA case law supports a similar approach under § 2K2.1. For
an aggravated battery in Kansas, the State must prove “that the accused
6
acted when he or she was aware that his or her conduct was reasonably
certain to cause the result.” State v. Hobbs, 340 P.3d 1179, 1184 (Kan.
2015). This requirement separates “knowing” conduct from conduct that is
accidental, negligent, or reckless. See Kan. Stat. Ann. § 21-5202(b)
(separately classifying “knowingly” and “recklessly”); see also United
States v. Ruacho, 746 F.3d 850, 856 (8th Cir. 2014) (explaining that a
crime committed “knowingly” is different from a crime committed
“recklessly”). As a result, we conclude that a mens rea requirement of
“knowing” is sufficient for characterization as a crime of violence under
§ 2K2.1.
B. We reject Mr. Williams’s contrary arguments.
Mr. Williams makes two arguments for why a mens rea of “knowing”
is not sufficient:
1. Kansas’s definition of “knowing” equates to recklessness.
2. Conduct can be “knowing” without intent.
Both arguments fail.
1. Mr. Williams forfeited his argument that Kansas’s standard
of “knowing” equates to recklessness.
First, Mr. Williams argues that Kansas’s definition of “knowing”
conduct is indistinguishable from recklessness. We ordinarily define
“knowing” conduct as conduct undertaken with an awareness that a
particular result “is practically certain.” United States v. Manatau, 647
7
F.3d 1048, 1050 (10th Cir. 2011). But Kansas uses a different phrase,
requiring “reasonable certainty” rather than “practical certainty.” Kan.
Stat. Ann. § 21-5202(i); see pp. 6-7, above. Mr. Williams argues that
Kansas’s requirement of reasonable certainty is indistinguishable from
recklessness. But this argument was forfeited.
Our local rules require that “[f]or each issue raised on appeal, all
briefs must cite the precise reference in the record where the issue was
raised and ruled on.” 10th Cir. R. 28.2(C)(2). Mr. Williams did not provide
a record citation for where this issue had been raised or decided in district
court. We have elsewhere declined to consider arguments based on similar
failures to state where the issue was addressed in district court. United
States v. LaHue, 261 F.3d 993, 1009, 1014 (10th Cir. 2001); United States
v. McClatchey, 217 F.3d 823, 835-36 (10th Cir. 2000); United States v.
Janus Indus., 48 F.3d 1548, 1558-59 (10th Cir. 1995). And at oral
argument, Mr. Williams conceded that he had not raised this argument in
district court.
But after oral argument, Mr. Williams filed a supplemental letter,
stating that he had presented the argument in district court. There Mr.
Williams cited his objection to the presentence report. But that objection
had not included an argument that Kansas’s definition of “knowing”
conduct was equivalent to recklessness. By failing to raise the issue in
8
district court, Mr. Williams forfeited his present argument. See United
States v. Gould, 672 F.3d 930, 938 (10th Cir. 2012).
Mr. Williams argues that we should consider the argument anyway
because the government did not rely on the forfeiture. See United States v.
Reider, 103 F.3d 99, 103 n.1 (10th Cir. 1996) (considering a forfeited
appeal point because the government failed to argue on appeal that the
appeal point had been forfeited). We disagree.
The government’s omission leaves us with “dueling
‘waivers/forfeitures.’” United States v. Rodebaugh, 798 F.3d 1281, 1314
(10th Cir. 2015). Mr. Williams forfeited his argument by failing to raise it
in district court, and the government waived its challenge to Mr.
Williams’s forfeiture by failing to raise the challenge on appeal. Id. Thus,
we must exercise discretion in deciding whose forfeiture or waiver to
overlook. Id.In deciding how to exercise this discretion, we can (1) weigh the
harms from each party’s failure to adequately present its argument and
(2) consider the adequacy of input from the parties. See id. at 1314-17(comparing the relative consequences of each party’s failure to present its
argument); Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013)
(discussing the adequacy of input from the parties).
The weighing process leads us to conclude that Mr. Williams’s
failure created the greater harm. Because the issue was not raised in
9
district court, neither party briefed the issue there. On appeal Mr. Williams
asserts that Kansas’s standard of “knowing” equates to recklessness, but he
has not identified a single opinion supporting his assertion. Thus, we lack
the citation of any supporting opinion on this issue.
We also lack any pertinent case citations from the government, which
declined to address the issue, focusing instead on the sufficiency of
recklessness for a “crime of violence.” Thus, we lack meaningful input
from the parties or “a reasoned district court decision on the subject.” See
Abernathy, 713 F.3d at 552 (expressing a reluctance “to definitively opine”
on an issue when the appellant forfeited an appeal point and the appellee
waived the forfeiture because the appellee’s scant attention to the issue left
us without “the benefit of vigorous adversarial testing of the issue”).
We have sometimes considered forfeited arguments that present “a
strictly legal question the proper resolution of which is beyond doubt.”
Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992). Mr.
Williams’s argument, equating Kansas’s standard of “knowing” to
recklessness, presents a purely legal question. But proper resolution of the
issue is not beyond doubt.
We have not addressed this issue in a published opinion, and no other
federal court of appeals has expressly addressed this issue. But in an
unpublished opinion, we confronted an analogous issue in Marin-Gonzales
v. Sessions, No. 17-9503, 2018 WL 327437 (10th Cir. Jan. 9, 2018)
10
(unpublished). There we addressed an attempt statute criminalizing conduct
undertaken with an awareness that the prohibited result was reasonably
certain. Marin-Gonzales, 2018 WL 327437, at *3. Even though only
reasonable certainty was required, we determined that the statute did not
criminalize reckless behavior. Id. Instead, we concluded that the statutory
language mirrored the state’s definition of “knowing,” which required
reasonable certainty. Id.; see Utah Code Ann. § 76-2-103(2) (defining
“knowingly”). This conclusion casts doubt on Mr. Williams’s argument
that “reasonable certainty” equates to recklessness.
* * *
Weighing the relative harms and considering the lack of input from
the government and the uncertainty in the resolution, we decline to reach
the merits of Mr. Williams’s forfeited argument.
2. “Knowing” conduct involves general criminal intent, which
suffices for a “crime of violence.”
The resulting issue is whether a mens rea of “knowing” is sufficient
for a “crime of violence” under the guidelines. The guidelines’ reference to
a “crime of violence” requires “purposeful or intentional behavior.” United
States v. Armijo, 651 F.3d 1226, 1236 (10th Cir. 2011). In light of this
requirement, Mr. Williams contends that Kansas’s mens rea of “knowing”
is insufficient because it does not require intent. We reject this contention.
11
In Kansas, a crime committed “knowingly” is considered a crime of
“general criminal intent.” Kan. Stat. Ann. § 21-5202(i). Crimes requiring
“general criminal intent” can constitute “violent felonies” under the
ACCA. United States v. Ramon Silva, 608 F.3d 663, 673 (10th Cir. 2010);
see also United States v. Hernandez, 568 F.3d 827, 831-32 (10th Cir. 2009)
(characterizing a crime committed knowingly as a violent felony because
the crime required an intent to undertake the prohibited action). Because
“general criminal intent” suffices for a “violent felony” under the ACCA,
we conclude that “general criminal intent” also suffices for a “crime of
violence” under the guidelines. See p. 6, above (discussing the significance
of ACCA case law in interpreting the guideline term “crime of violence”).
* * *
The Kansas crime of aggravated battery entails general criminal
intent, requiring “knowing” conduct. This requirement is sufficient for a
crime of violence under § 2K2.1
IV. Aggravated battery in Kansas includes physical force as an
element of the offense.
To constitute a crime of violence, the prior statute of conviction must
have “as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S. Sentencing Guidelines Manual
§ 4B1.2(a)(1); see p. 3, above. Mr. Williams argues that Kansas’s crime of
aggravated battery does not require physical force because the crime is
12
triggered whenever “bodily harm” is caused. Kan. Stat. Ann. § 21-
5413(b)(1)(B). Mr. Williams’s argument fails because “the knowing or
intentional causation of bodily injury necessarily involves the use of
physical force.” United States v. Castleman, ___ U.S. ___, 134 S. Ct. 1405,
1414 (2014).
We addressed a similar issue in United States v. Treto-Martinez,
421 F.3d 1156 (10th Cir. 2005). There we concluded that a prior version of
Kansas’s crime of aggravated battery required the use or threatened use of
physical force and qualified as a crime of violence under the guidelines. 5
Treto-Martinez, 421 F.3d at 1159-60. For this conclusion, we relied on the
need to intentionally cause physical contact with another person in a way
that could cause great bodily harm, disfigurement, or death. This element,
in our view, involved the use or threatened use of physical force. Id.
at 1160. Our rationale in Treto-Martinez applies equally to Kansas’s
current statute on aggravated battery, which criminalizes the causation of
“bodily harm.” Compare Kan. Stat. Ann. § 21-5413(b)(1)(B), with Kan.
Stat. Ann. § 21-3414(a)(1)(C) (repealed 2010).
5
The section of the prior Kansas statute, addressed in Treto-Martinez,
had defined aggravated battery as “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.” Kan. Stat. Ann. § 21-3414(a)(1)(C) (repealed
2010).
13
Mr. Williams contends that Treto-Martinez is no longer good law.
For this contention, he argues that Kansas’s current statute asks only
whether an injury was caused and not whether force was used. Mr.
Williams points to United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir.
2005), where we concluded that the use of force and the causation of injury
are not equivalent elements. 414 F.3d at 1285.
But after issuance of the opinion in Perez-Vargas, the Supreme Court
decided United States v. Castleman, holding that a misdemeanor conviction
for intentionally or knowingly causing bodily injury to a child’s mother
constituted a misdemeanor crime of domestic violence. 134 S. Ct. 1405,
1414 (2014). The Supreme Court explained that “the knowing or
intentional causation of bodily injury necessarily involves the use of
physical force.” Id.We applied Castleman in United States v. Ontiveros, 875 F.3d 533(10th Cir. 2017). There the defendant argued that physical force was not an
element of his crime because the statute of conviction had focused on the
result of the conduct rather than on the conduct itself. We rejected this
argument, explaining that Castleman had “specifically rejected the
contention that ‘one can cause bodily injury without the use of physical
force.’” Ontiveros, 875 F.3d at 536 (quoting Castleman, 134 S. Ct. at
1414). We added that “Perez-Vargas’s logic on this point is no longer good
law in light of Castleman.” Id.; see also United States v. Kendall, 876 F.3d
141264, 1271 (10th Cir. 2017) (recognizing that Perez-Vargas “has been
abrogated by the Supreme Court”).
Mr. Williams concedes that “the panel decision in Ontiveros
effectively shutters most of [his] second argument.” Appellant’s Reply Br.
at 3 n.1. But Mr. Williams attempts to distinguish Ontiveros, arguing that
 Ontiveros concerned only intentional conduct and
 the Kansas aggravated-battery statute can be violated
unintentionally.
We have already addressed this argument: Kansas’s crime of aggravated
battery requires a mens rea of “knowing” and general criminal intent,
which suffice for a crime of violence under the guidelines. Thus, Ontiveros
is directly applicable. 6
***
The Kansas statute on aggravated battery criminalizes the knowing
causation of bodily harm. This element involves the use or threatened use
of physical force. See United States v. Castleman, ___ U.S. ___, 134 S. Ct.
1405, 1414 (2014). As a result, aggravated battery in Kansas constitutes a
crime of violence under § 2K2.1.
6
Mr. Williams also argues that his conviction is categorically not a
crime of violence because the Kansas crime of aggravated battery does not
require physical force. This argument fails for the same reasons. The
statute requires a finding that the defendant caused bodily harm. Kan. Stat.
Ann. § 21-5413(b)(1)(B). And intentionally causing bodily harm
necessarily involves the use of physical force. United States v. Castleman,
___ U.S. ___, 134 S. Ct. 1405, 1414 (2014).
15
V. Conclusion
We conclude that Mr. Williams’s prior crime of aggravated battery
constitutes a crime of violence under § 2K2.1. Aggravated battery requires
knowing conduct, which entails general criminal intent and suffices for a
crime of violence. In addition, the Kansas statute criminalizes the
causation of bodily harm, which requires the use or threatened use of
physical force. As a result, the district court properly enhanced Mr.
Williams’s offense level. We affirm.
16