FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS December 21, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 16-4165 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: 1 On appeal, Bettcher has abandoned his district-court argument that Utah’s second-degree aggravated assault is not categorically a crime of violence because it can include convictions for indirect uses of physical force, such as poisoning. Though this argument once had force, it no longer does. See United States v. Perez-Vargas, 414 F.3d 1282, 1286–87 (10th Cir. 2005), overruled by United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 2017); see also United States v. Castleman, 572 U.S. 157, 168–71 (2014). We have no reason to address this argument further, despite the government’s request that we do so. 2 The Utah legislature has since amended its assault statutes. See S.B. 115, 61st Leg., Gen. Sess., 2015 Utah Laws 430, §§ 76-5-102, 76-5-103 (amending Utah’s assault and aggravated-assault statutes, in part to remove the latter’s cross-reference to the former); H.B. 17, 62d Leg., Gen. Sess., 2017 Utah Laws 388, § 76-5-103(1)(b)(ii)–(iii), -103(2) (amending Utah’s aggravated-assault statute to specifically cover “any act that impedes the breathing or the circulation” of the victim); H.B. 433, 62d Leg., Gen. Sess., 2017 Utah Laws 454, § 76-5-103(2)(c) (adding first-degree aggravated assault for targeting a law-enforcement officer). 2 (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, ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals