F I L E D
United States Court of Appeals
Tenth Circuit
August 9, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-1517
v. (D.C. No. 05-CR-243-LTB)
(D . Colo.)
JOHN TH OM AS CASADOS,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
John Thomas Casados, Jr., a federal prisoner, appeals the district court’s
imposition of a 78-month sentence on the ground that his two prior convictions
for third-degree assault qualified him as a career offender. W e affirm. 1
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
1
The district court, at M r. Casados’ sentencing hearing, stated that if it
were not sentencing him as a career offender and assigning him an offense level
of 21, it would assign him an offense level of 19 on the ground that the tennis
M r. Casados pled guilty to one count of assault resulting in serious bodily
injury in violation of 18 U.S.C. §§ 113(6) and 1152. A United States probation
officer then prepared a presentence report (PSR ). Among numerous other
convictions, the PSR listed two Colorado convictions for third-degree assault in
violation of C OLO . R EV . S TAT . § 18-3-204. The PSR determined M r. Casados
should be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, and
recommended an offense level of 24. The PSR further recommended a three-level
reduction for acceptance of responsibility. The offense level of 21, when coupled
with a criminal history category of VI, resulted in a sentencing range of 77 to 96
months.
M r. Casados objected to the PSR’s career offender recommendation. The
district court concluded the two Colorado convictions for third-degree assault
constituted convictions for crimes of violence under this court’s opinion in United
States v. Paxton, 422 F.3d 1203 (10th Cir. 2005), cert. denied, 126 S. Ct. 1403
(Feb. 21, 2006). The court then sentenced M r. Casados as a career offender to 78
months imprisonment. On appeal, M r. Casados argues his state convictions
should not be considered crimes of violence for purposes of the career offender
shoes he wore when he kicked the victim in the head constituted deadly weapons
for the purposes of U .S.S.G. §§ 2A 2.2 and 1B1.1. App. vol. II at 22-23. Because
w e conclude the court correctly assigned him the status of a career offender, w e
agree with M r. Casados that we need not decide whether M r. Casados’ tennis
shoes constituted deadly weapons.
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guideline and asks us to reconsider our holding in Paxton.
Section 4B1.1(a) states that a defendant
is a career offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). M oreover, § 4B1.2 defines a “crime of violence” as
any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that – (1) has as an element the use,
attempted use, or threatened use of physical force against the person
or another, or (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2. On appeal, M r. Casados argues his state convictions should
not be considered crimes of violence for purposes of the career offender
guideline.
In Paxton, we held that “a conviction under Colo. Rev. Stat. § 18-3-204 for
third-degree assault is a crime of violence under U.S.S.G. § 4B1.2(a)(2) because
the conduct necessary to sustain the conviction presents a serious potential risk of
physical injury to another.” 422 F.3d at 1207. One panel of this court can not
overrule another panel. See United States v. Brown, 400 F.3d 1242, 1256 (10th
Cir. 2005). Accordingly, we conclude the district court did not err in finding M r.
Casados’ prior convictions were for crimes of violence and sentencing him as a
career offender.
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W e A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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