from the United States District Court for the District of
Kansas D.C. No. 6:15-CR-10181-EFM-1 (D. Kan.)
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.
Maag, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, James A. Brown, Assistant United
States Attorney, on the brief), Topeka, Kansas, for
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
matter is before the court on the appellant's
Petition for Panel Rehearing and Rehearing En
Banc. Upon consideration, the request for panel
rehearing is granted in limited part by the original panel
members, and only to the extent of the minor amendments made
in the attached revised decision. Panel rehearing is
otherwise denied. The clerk is directed to file the revised
opinion effective the date of this order.
Petition was also circulated to all the active
judges of the court. See Fed. R. App. P. 35(a). As
no judge on the original panel or the en banc court requested
that a poll be called, the request for en banc
reconsideration is likewise denied.
BACHARACH, CIRCUIT JUDGE.
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).
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.
Mr. Williams's sentence level was enhanced under §
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
government objected, arguing that the Kansas crime of
aggravated battery constituted a crime of violence. The
district court sustained the objection and set the guideline
range at 46 to 57 months. Mr. Williams appeals the enhancement
under § 2K2.1.
We must determine whether aggravated battery in Kansas
constitutes a crime of violence.
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
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).
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). The resulting issue is whether this crime
constitutes a crime of violence. Id. The district
court answered "yes."
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 ...