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The Tenth Circuit Gives Some Criminal History Relief in a Gun Case

It’s ironic in a sense. Some of the most complicated questions of federal criminal law have to do with calculating the way a person’s criminal history intersects with the sentencing guidelines in a federal weapons charge. Yet weapons crimes are, themselves, generally unsophisticated. When a very good lawyer on a weapons charge gets paired with a stereotypical gun charge client, it creates odd pairings of super-geeky lawyers and folks who are attracted to the elegant simplicity of a hair trigger.

Which brings us to a reversal for resentencing in an appeal from a federal gun charge. The Tenth Circuit today reversed and remanded for resentencing in a gun case, United States v. Armijo. The basic facts are vanilla — Armijo was convicted of possessing a gun. He’s got a prior felony conviction, so that violates 18 U.S.C. section 922(g). The guidelines for a felon in possession charge depend on the defendant’s criminal history. If he has two prior convictions that are either drug distribution charges or crimes of violence, then his guidelines start at a level 24 (assuming we’re not talking about a machine gun).

The question is, what counts as a crime of violence? The phrase “crime of violence” is the rabbit-hole into which thousands of hours of attorney time have disappeared (though for a good reason — the wrong answer from an appellate court can lead to thousands of years of people’s lives disappearing into a less pleasant kind of hole).

What counts as a crime of violence doesn’t just matter for the felon in possession guidelines. If a person is convicted of being a felon in possession and he’s got three crimes of violence in his past, then he’s an Armed Career Criminal. An Armed Career Criminal’s statutory maximum is life, instead of ten years for a garden-variety felon in possession, and he is facing a mandatory minimum sentence of fifteen years.

So there’s a decent amount of law on what convictions count as a crime of violence.

The Tenth Circuit today clarified that manslaughter in Colorado is not a crime of violence. It’s an interesting call. On the government’s side, manslaughter is specifically listed in the guidelines as an example of a crime of violence (it’s in note one of the commentary for section 4B1.2). That seems like kind of a bad starting point for Mr. Armijo.

However, the Tenth Circuit notices that as Colorado defines manslaughter, it requires only recklessness, not a higher intent to actually harm someone. So, the Tenth Circuit concludes, this can’t be a crime of violence, if a crime of violence is something that has, as an element, “the use, attempted use, or threatened use of physical force”. Such use of force has to be on purpose for it to count as a crime of violence.

In other words, you can’t accidentally commit a crime of violence in the Tenth Circuit. (or, as it happens, in the Fourth, see United States v. Peterson, 629 F.3d 432 (4th Cir. 2011).)

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

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