FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30183
Plaintiff-Appellee, D.C. No.
v.
3:05-cr-00355-HA-1
UHURU NAVANDA CREWS, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted
March 3, 2010—Portland, Oregon
Filed July 23, 2010
Amended September 8, 2010
Before: Richard A. Paez, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
13679
UNITED STATES v. CREWS 13681
COUNSEL
Francesca Freccero, Assistant Federal Public Defender, Port-
land, Oregon, for defendant-appellant Uhuru Navanda Crews.
Stephen F. Peifer (argued), United States Attorney’s Office,
Portland, Oregon, and Kent S. Robinson, Acting United States
Attorney, for plaintiff-appellee United States of America.
13682 UNITED STATES v. CREWS
ORDER
The opinion filed on July 23, 2010, and published at __
F.3d ___, 2010 WL 2872531 (9th Cir. July 23, 2010), is
hereby amended.
On page 10624 of the slip opinion, lines 4-8: Replace <> with <>
OPINION
M. SMITH, Circuit Judge:
We address whether a conviction under Oregon’s second-
degree assault statute, Or. Rev. Stat. § 163.175(1)(b), is a
“crime of violence” under the Sentencing Guidelines’ “resid-
ual clause,” U.S. Sentencing Guidelines Manual § 4B1.2(a)(2)
(2008) (hereinafter U.S.S.G.). We hold that it is, and we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2009, Uhuru Navanda Crews pleaded
guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). At sentencing, the district court
assigned Crews a base offense level of twenty-four, based on
two prior convictions. See U.S.S.G. § 2K2.1(a)(2). Pursuant
to section 2K2.1(a)(2), a defendant is assigned a base offense
level of twenty-four if he has previously sustained “at least
UNITED STATES v. CREWS 13683
two felony convictions of either a crime of violence or a con-
trolled substance offense.” Id.
Crews concedes that his 1998 conviction for delivery of a
controlled substance under Oregon Revised Statutes section
475.8401 constitutes a “controlled substance offense.” The
district court also determined that Crews’s 1990 conviction
under Oregon’s second-degree assault statute, Or. Rev. Stat.
§ 163.175(1)(b), is a “crime of violence” under Guidelines
section 4B1.2(a).2 On appeal, Crews challenges whether
second-degree assault, as defined by section 163.175(1)(b), is
a “crime of violence.”
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether a conviction constitutes a “crime of
violence” under the Sentencing Guidelines. United States v.
Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005).
DISCUSSION
[1] Section 2K2.1 of the Guidelines defines “crime of vio-
lence” as that term is defined in the career offender Guideline,
section 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1. Section 4B1.2, in
turn, sets forth three different provisions defining the term
“crime of violence.” Id. § 4B1.2(a)(1), (2) & cmt. n.1. The
provision Crews focuses on, and that which we find most ger-
mane to whether subsection (1)(b) of Oregon’s second-degree
assault statute constitutes a “crime of violence,” is Guidelines
section 4B1.2(a)(2).3 Section 4B1.2(a)(2) defines a “crime of
violence” as:
1
At the time of Crews’s conviction, delivery of a controlled substance
under Oregon law was codified at section 475.992.
2
After granting Crews a downward variance from the sentencing range
of 57-71 months, the district court sentenced Crews to 37 months.
3
Because we hold that Oregon Revised Statutes section 163.175(1)(b)
is a “crime of violence” within the meaning of Guidelines section
13684 UNITED STATES v. CREWS
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . .
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.
Id. § 4B1.2(a)(2) (emphasis added). The italicized language is
referred to as the “residual clause.”
[2] Crews was convicted under subsection (1)(b) of Ore-
gon’s second-degree assault statute, which punishes
“[i]ntentionally or knowingly caus[ing] physical injury to
another by means of a deadly or dangerous weapon.” Or. Rev.
Stat. § 163.175(1)(b). Second-degree assault in Oregon is a
“Class B” felony punishable by a maximum of ten years
imprisonment. See Or. Rev. Stat. §§ 161.605, 163.175(2).
Therefore, Crews’s prior conviction meets the threshold
requirement for a “crime of violence” since it is “punishable
by imprisonment for a term exceeding one year.” U.S.S.G.
§ 4B1.2(a).
“We use the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 602 (1990), to determine
whether a defendant’s prior conviction satisfies the Guide-
lines definition of a crime of violence.” United States v.
4B1.2(a)(2), we need not determine whether it also meets the generic defi-
nition of “aggravated assault” listed in the Application Notes to Guidelines
section 4B1.2. Cf. United States v. Granbois, 376 F.3d 993, 995 (9th Cir.
2004) (holding that a prior conviction for abusive sexual contact under 18
U.S.C. § 2244(a)(3) was a per se crime of violence within the meaning of
the Application Notes, and declining to consider application of the resid-
ual clause); United States v. Jennen, 596 F.3d 594, 600-02 (9th Cir. 2010)
(holding that Washington second-degree assault with a deadly weapon
statute was a crime of violence under Guidelines section 4B1.2(a)(1),
without considering whether it was a per se crime of violence under the
Application Notes).
UNITED STATES v. CREWS 13685
Esparza-Herrera, 557 F.3d 1019, 1022 (9th Cir. 2009) (per
curiam). Under this approach, “we consider the offense gener-
ically, that is to say, we examine it in terms of how the law
defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.”
Begay v. United States, 553 U.S. 137, 141 (2008). We thus
compare the statutory definition of the underlying offense to
the Guidelines definition of “crime of violence.” United
States v. Carson, 486 F.3d 618, 619-20 (9th Cir. 2007) (per
curiam). Therefore, we must ask whether “[i]ntentionally or
knowingly caus[ing] physical injury to another by means of
a deadly or dangerous weapon,” Or. Rev. Stat.
§ 163.175(1)(b), “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” U.S.S.G.
§ 4B1.2(a)(2).
[3] The Supreme Court’s recent decision in Begay v.
United States sets forth a two-step approach to our inquiry.4
See Begay, 553 U.S. at 141-42; United States v. Mayer, 560
F.3d 948, 960 (9th Cir. 2009) (following Begay’s two-step
4
Begay focused on a nearly identical definition of the term “violent felo-
ny” in the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii). In the past we have made no distinction between the
terms “violent felony” and “crime of violence” for purposes of interpreting
the residual clause, see, e.g., United States v. Jennings, 515 F.3d 980, 990
n.11 (9th Cir. 2008), and we recently held that Begay’s analysis applies
to section 4B1.2, United States v. Coronado, 603 F.3d 706, 708-10 (9th
Cir. 2010). Our sister circuits have also followed Begay in analyzing
whether a prior state offense is a “crime of violence” under Guidelines
section 4B1.2(a)(2). United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir. 2010); United States v. Johnson, 587 F.3d 203, 207-08 & n.5 (3d Cir.
2009); United States v. Hart, 578 F.3d 674, 677 & n.3 (7th Cir. 2009);
United States v. Wilson, 562 F.3d 965, 967-68 (8th Cir. 2009); United
States v. Baker, 559 F.3d 443, 451-52 & n.8 (6th Cir. 2009); United States
v. Rooks, 556 F.3d 1145, 1150 (10th Cir. 2009); United States v. Almenas,
553 F.3d 27, 34 & n.7 (1st Cir. 2009); United States v. Gray, 535 F.3d
128, 130 (2d Cir. 2008); United States v. Archer, 531 F.3d 1347, 1350 n.1
(11th Cir. 2008). The Supreme Court, too, has drawn from the Guidelines’
definition of a “crime of violence” in interpreting the ACCA’s definition
of “violent felony.” See James v. United States, 550 U.S. 192, 206 (2007).
13686 UNITED STATES v. CREWS
approach). First, the state offense must involve conduct that
presents a serious potential risk of injury. See Begay, 553 U.S.
at 141 (assuming that New Mexico’s DUI statute involved
conduct presenting such a risk). Such a showing does not
require “that every conceivable factual offense covered by a
statute . . . necessarily present a serious potential risk of inju-
ry.” James, 550 U.S. at 208 (citing Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007)). “Rather, the proper
inquiry is whether the conduct encompassed by the elements
of the offense, in the ordinary case, presents a serious poten-
tial risk of injury to another.” Id.
[4] We have little trouble concluding that “[i]ntentionally
or knowingly caus[ing] physical injury to another by means
of a deadly or dangerous weapon,” clearly presents a serious
potential risk of physical injury to another. Oregon law
defines both a “dangerous weapon” and a “deadly weapon” as
an “instrument . . . capable of causing death or serious physi-
cal injury.” Or. Rev. Stat. § 161.015(1), (2). In addition, to be
convicted under the statute, the state must prove that the
defendant in fact caused the victim physical injury. See State
v. O’Hara, 955 P.2d 313, 315 (Or. Ct. App. 1998). Hence,
“the statute itself contemplates bodily harm to the victim as
a prerequisite to conviction.” Johnson, 587 F.3d at 211.
[5] Prior to Begay, we concluded our inquiry after address-
ing only step one. See, e.g., Carson, 486 F.3d at 620. How-
ever, after Begay we must make a second inquiry: whether the
state offense is “roughly similar, in kind as well as in degree
of risk posed,” to the enumerated offenses that appear at the
beginning of the residual clause—burglary of a dwelling,
arson, extortion, and crimes involving the use of explosives.
Begay, 553 U.S. at 143; United States v. Alderman, 601 F.3d
949, 952 (9th Cir. 2010); accord United States v. Smith, 544
F.3d 781, 784 (7th Cir. 2008) (noting that after Begay ”a find-
ing that the offense poses a serious risk of physical injury to
another is a necessary, but not sufficient, condition” for the
offense to fall within the scope of the residual clause); United
UNITED STATES v. CREWS 13687
States v. Roseboro, 551 F.3d 226, 233 (4th Cir. 2009) (hold-
ing that Begay rejected that circuit’s earlier approach under
which “an offense presented a serious potential risk of physi-
cal injury to another if the offense conduct had the potential
for serious physical injury to another”), abrogated on other
grounds by United States v. Rivers, 595 F.3d 558 (4th Cir.
2010). In order to determine whether the state offense is
“roughly similar” to the enumerated offenses, we ask whether
the state offense “typically involve[s] purposeful, violent, and
aggressive conduct.” Begay, 553 U.S. at 144-45 (internal quo-
tation marks omitted); Alderman, 601 F.3d at 952-53
Focusing on this second step of the analysis, Crews argues
that a conviction under Oregon Revised Statutes section
163.175(1)(b) does not “involve purposeful, violent, and
aggressive conduct.” Specifically, Crews takes issue with the
“purposeful” requirement, arguing that section (1)(b) punishes
“knowing” conduct, which is less culpable than “purposeful”
conduct.5 Crews notes that, contrary to the Model Penal
Code’s definition, Oregon defines “knowingly” as acting with
an awareness of one’s conduct, and does not require an
awareness of the result of that conduct. Compare Model Penal
5
There are four ways to commit assault under subsection (1)(b). A per-
son might “[i]ntentionally . . . cause[ ] physical injury to another by means
of a deadly . . . weapon”; “[i]ntentionally . . . cause[ ] physical injury to
another by means of a . . . dangerous weapon”; “knowingly cause[ ] physi-
cal injury to another by means of a deadly . . . weapon”; or “knowingly
cause[ ] physical injury to another by means of a . . . dangerous weapon.”
Or. Rev. Stat. § 163.175(1)(b). Crews does not dispute that to
“[i]ntentionally . . . cause[ ] physical injury to another by means of a
deadly or dangerous weapon,” id. (emphasis added), involves purposeful,
violent, and aggressive conduct and thus categorically qualifies as a crime
of violence. Rather, Crews focuses on subsection (1)(b)’s less culpable
mens rea of “knowingly,” because “ ‘our categorical inquiry need focus
only on the conduct falling at the least egregious end of the state statute’s
range of conduct.’ ” United States v. Baza-Martinez, 464 F.3d 1010, 1014
(9th Cir. 2006) (quoting United States v. Lopez-Solis, 447 F.3d 1201, 1206
(9th Cir. 2006)) (internal brackets omitted).
13688 UNITED STATES v. CREWS
Code § 2.02(2)(b),6 with State v. Barnes, 986 P.2d 1160,
1166-67 (Or. 1999) (holding that to sustain a conviction under
subsection (1)(a) of Oregon’s second-degree assault statute,
“the state needs to prove only that defendant was aware of the
assaultive nature of his conduct and that his conduct in fact
caused the victim serious physical injury”).
In Begay, the Supreme Court addressed whether driving
under the influence of alcohol is the sort of purposeful, vio-
lent, and aggressive conduct that fits within the scope of the
residual clause, and held that it is not. 553 U.S. at 148. While
the Court did not specifically define “purposeful,” it
explained that this type of conduct characterized crimes com-
mitted by the armed career criminal, and noted that the ACCA
was especially concerned with “the special danger created
when a particular type of offender—a violent criminal or drug
trafficker—possesses a gun.” Id. at 146. The Court reasoned
that when a prior offense involves purposeful, violent, and
aggressive conduct—conduct that is “characteristic of [crimes
committed by] the armed career criminal,” id. at 145 (internal
quotation marks omitted)—the perpetrator is more likely to
engage in similar future conduct, id. at 148. That is, having
once been involved in “purposeful, violent, and aggressive
conduct,” it is “more likely that an offender, later possessing
a gun, will use that gun deliberately to harm a victim.” Id. at
145; accord id. at 146 (“In order to determine which offend-
ers fall into this category, the Act looks to past crimes . . .
because an offender’s criminal history is relevant to the ques-
tion whether he is a career criminal, or, more precisely, to the
6
Under the Model Penal Code,
[a] person acts knowingly with respect to a material element of
an offense when: (i) if the element involves the nature of his con-
duct or the attendant circumstances, he is aware that his conduct
is of that nature or that such circumstances exist; and (ii) if the
element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result.
Model Penal Code § 2.02(2)(b).
UNITED STATES v. CREWS 13689
kind or degree of danger the offender would pose were he to
possess a gun.”).
The Court juxtaposed the kind of conduct that typifies the
armed career criminal with that which does not. Under this
latter category it placed strict liability crimes and crimes
involving only accidental, negligent, or reckless conduct. It
listed crimes which, “though dangerous, are not typically
committed by those whom one normally labels ‘armed career
criminals.’ ” Id. at 146-47 (citing as examples “Ark. Code
Ann. § 8-4-103(a)(2)(A)(ii) (2007) (reckless polluters); 33
U.S.C. § 1319(c)(1) (individuals who negligently introduce
pollutants into the sewer system); 18 U.S.C. § 1365(a) (indi-
viduals who recklessly tamper with consumer products); [18
U.S.C.] § 1115 (seamen whose inattention to duty causes seri-
ous accidents)”). Moreover, the Court cited with approval a
description of drunk driving as “a crime of negligence or
recklessness, rather than violence or aggression.” Id. at 146
(quoting United States v. Begay, 470 F.3d 964, 980 (10th Cir.
2006) (McConnell, J., dissenting in part)). Further, it noted
that crimes involving the use of explosives are purposeful
because “the word ‘use’ most naturally suggests a higher
degree of intent than negligent or merely accidental conduct.”
Id. at 145 (internal quotation marks and ellipsis omitted).
Following Begay, our sister circuits have similarly held that
crimes involving only negligent or reckless mens reas do not
fall within the residual clause. See, e.g., Roseboro, 551 F.3d
at 242-43 (holding that, to the extent a South Carolina viola-
tion for failing to stop for a blue light required only negligent
conduct, it is not a violent felony under Begay); Baker, 559
F.3d at 453 (holding that Tennessee’s reckless endangerment
statute is not a crime of violence under Begay); Gray, 535
F.3d at 131-32 (same with respect to New York reckless
endangerment statute because it “does not criminalize pur-
poseful or deliberate conduct”); Smith, 544 F.3d at 786 (hold-
ing that “those crimes with a mens rea of negligence or
recklessness do not trigger the enhanced penalties mandated
13690 UNITED STATES v. CREWS
by the ACCA”); United States v. Herrick, 545 F.3d 53, 60
(1st Cir. 2008) (holding that vehicular homicide involving
criminal negligence is not a crime of violence under Begay).
[6] With Begay’s analysis in mind, we hold that subsection
(1)(b) of Oregon’s second-degree assault statute clearly
involves “purposeful, violent, and aggressive conduct.” The
subsection applies when a defendant acts more than just negli-
gently or recklessly, and punishes assaultive conduct when
the “defendant was aware of the assaultive nature of his con-
duct.” See Barnes, 986 P.2d at 1167. To be sure, to act know-
ingly in Oregon does not require knowledge that physical
injury could possibly occur as a result of particular conduct,
or conscious disregard of risks associated with that conduct.
See State v. Jantzi, 641 P.2d 62, 63-64 (Or. Ct. App. 1982)
(holding that where defendant knew he had a dangerous
weapon and it was possible that an injury would occur, he
acted recklessly, not knowingly, under Oregon law), abro-
gated on other grounds by State v. Boone, 661 P.2d 917 (Or.
1983) and State v. Cook, 989 P.2d 474 (Or. Ct. App. 1999),
as recognized in State v. McNair, 39 P.3d 284, 288 (Or. Ct.
App. 2002). Rather, to act knowingly in Oregon is to act with
the awareness that one’s conduct is of the nature described in
the statute. See Or. Rev. Stat. § 161.085(8); Barnes, 986 P.2d
at 1167. Acting with an awareness of the assaultive nature of
one’s conduct is sufficiently “purposeful, violent, and aggres-
sive” under Begay to fall within the residual clause. Indeed,
the conduct described in subsection (1)(b)—conduct of an
assaultive nature carried out by means of a deadly or danger-
ous weapon—is exactly the type of conduct that characterizes
armed career criminals and repeat violent offenders and is the
type of conduct that the Court in Begay deemed “relevan[t] to
the possibility of future danger with a gun.” Begay, 553 U.S.
at 146.
We note that while Begay considered “the particular statu-
tory provision” before it, id. at 148, the rationale underlying
its interpretation of the ACCA is particularly applicable to our
UNITED STATES v. CREWS 13691
interpretation of the career offender Guideline provision at
issue here. First, as noted above, the terms “violent felony” in
the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and “crime of vio-
lence” in Guidelines section 4B1.2, are interpreted according
to the same precedent. See supra n.4. Second, and even more
to the point, like the ACCA, section 4B1.2 applies to “the
class of recidivist offenders for whom a lengthy term of
imprisonment is appropriate and [seeks] to avoid ‘unwar-
ranted sentencing disparities among defendants with similar
records who have been found guilty of similar criminal con-
duct[.]’ ” U.S.S.G. § 4B1.1 cmt. background (quoting 28
U.S.C. § 991(b)(1)(B)). In other words, both the ACCA and
the career offender provision of the Guidelines focus not on
recidivists in general, but on “repeat violent offenders.” Id.
Those concerns are particularly relevant to sentences resulting
from felon-in-possession crimes, such as those under 18
U.S.C. § 922(g)(1), and the corresponding Guidelines provi-
sion for those crimes, U.S.S.G. § 2K2.1.
In arguing that his crime was not “purposeful” because he
was “convicted of assault without any proof that he acted with
any purpose, or with any awareness of the potential result of
his conduct,” Crews misinterprets Begay’s “purposeful con-
duct” requirement in three ways. First, while the enumerated
offenses that appear at the beginning of the residual clause
require more culpable mens reas than recklessness or negli-
gence, none of them requires any proof that the offender acted
with any particular purpose to injure another person. See
United States v. Dismuke, 593 F.3d 582, 592 (7th Cir. 2010)
(noting that none of the enumerated crimes “require that the
offender act with the specific purpose of inflicting physical
harm on another”). Thus, to be “roughly similar” to the enu-
merated offenses, it is not necessary that a crime be commit-
ted with specific intent.
Second, Begay held that crimes would be sufficiently simi-
lar to the enumerated crimes to fall within the residual clause
if they “typically involve purposeful, violent, and aggressive
13692 UNITED STATES v. CREWS
conduct.” Begay, 553 U.S. at 144-45 (internal quotation
marks omitted) (emphasis added). Indeed, under our categori-
cal approach, section 163.175(1)(b) would fall within the
residual clause “even if, on some occasions, it can be commit-
ted in a way that poses no serious risk of physical harm.” Id.
at 141 (citing James, 550 U.S. at 208-09, for that proposition)
(emphasis in original). We have no doubt that the offense for
which Crews was convicted—knowingly causing physical
injury to another by means of a deadly or dangerous weapon
—typically involves purposeful conduct. Although we could
find no Oregon cases directly addressing the issue, we pre-
sume that, to be convicted under section 163.175(1)(b), a
defendant must have known both (1) that he engaged in
assaultive conduct and (2) that he used an instrument capable
of causing death or serious physical injury. See Or. Rev. Stat.
161.085(8) (defining “knowingly” as “act[ing] with an aware-
ness that the conduct of the person is of a nature [described
in the statute] or that a circumstance [described in the statute]
exists” (emphasis added)); cf. Flores-Figueroa v. United
States, 129 S. Ct. 1886, 1891 (2009) (“[C]ourts ordinarily
read a phrase in a criminal statute that introduces the elements
of a crime with the word ‘knowingly’ as applying that word
to each element.”). We have trouble imagining a circumstance
in which a person could knowingly use a dangerous weapon
to assault another person without intending to do so. Indeed,
Crews has not provided any case in which an individual who
knowingly engaged in assault by means of a deadly or danger-
ous weapon acted without the intent to cause harm. In short,
convictions involving knowing use of a deadly or dangerous
weapon typically involve “purposeful” conduct within the
meaning of Begay. See, e.g., State v. Hampton, 855 P.2d 621,
622 (Or. 1993) (en banc) (defendant convicted of second-
degree assault for breaking a bottle over the head of a police
officer); State v. Reed, 790 P.2d 551, 551 (Or. Ct. App. 1990)
(conviction sustained under section 163.175 for knowingly
banging victim’s head repeatedly against a concrete side-
walk); State v. Jacobs, 579 P.2d 881, 882 (Or. Ct. App. 1978)
UNITED STATES v. CREWS 13693
(conviction upheld where defendant placed four-year-old
child in scalding hot water).
Third, Begay made clear that the residual clause applies to
offenses involving “the deliberate kind of behavior associated
with violent criminal use of firearms.” Begay, 553 U.S. at
147. In noting that the enumerated offenses all “typically
involve purposeful, violent, and aggressive conduct,” the
Begay Court explained that the conduct involved in those
offenses “is such that it makes it more likely that an offender,
later possessing a gun, will use that gun deliberately to harm
a victim.” Id. at 144-45 (internal quotation marks omitted).
Crews ignores the obvious fact that “knowingly caus[ing]
physical injury to another by means of a deadly or dangerous
weapon,” Or. Rev. Stat. § 163.175(1)(b), likewise involves
conduct associated with such future danger. See Begay, 553
U.S. at 146 (assessing “a crime’s relevance to the possibility
of future danger with a gun”).
Our recent decision in Coronado does not compel a differ-
ent conclusion here. There, we addressed whether, in light of
Begay, a conviction under California Penal Code § 246.3 for
discharging a firearm with gross negligence was a crime of
violence under the residual clause. Coronado, 603 F.3d at
708. We held it was not, because the state statute “only
requires gross negligence, and crimes with a mens rea of
gross negligence or recklessness do not satisfy Begay’s
requirement of ‘purposeful’ conduct.” Id. at 710.
Arguably, our decision in Coronado contains language sug-
gesting that only crimes involving specific intent satisfy
Begay’s “purposeful” requirement. See id. at 711. There, we
noted that in “other contexts” we have defined “purposeful”
as “done with a specific purpose in mind; DELIBERATE.”
Id. (internal quotation marks omitted). But in those other con-
texts, we had no occasion to consider the issue presented here:
Whether knowingly causing physical injury to another by
means of a deadly or dangerous weapon satisfies Begay’s
13694 UNITED STATES v. CREWS
“purposeful” requirement. Rather, in those contexts, we con-
sidered whether crimes committed with gross negligence or
recklessness were sufficiently purposeful and concluded they
were not. Id. at 710; Fernandez-Ruiz, 466 F.3d at 1129-30.
Today we reaffirm that more than recklessness or gross negli-
gence is required, and more specifically hold that Begay can
be satisfied by knowing conduct.7
[7] In addition, we note that every circuit to have
addressed the issue has held that Begay’s “purposeful con-
duct” requirement is satisfied where the underlying state
offense requires the defendant to act knowingly. See Johnson,
587 F.3d at 211 (holding that, to the extent simple assault
under Pennsylvania law is committed intentionally or know-
ingly, it is “by definition purposeful”); Wilson, 568 F.3d at
674 (“We conclude that the offense satisfies Begay’s purpose-
ful conduct requirement based on the offense’s mens rea of
knowingly inflicting cruel and inhuman punishment.”);
Almenas, 553 F.3d at 34 (holding Begay’s purposefulness
requirement “easily met” where crime required the offender
to act knowingly); United States v. Spells, 537 F.3d 743, 752
(7th Cir. 2008) (holding that, under Indiana law, fleeing an
officer in a vehicle constitutes a violent felony under Begay
because “the flight must be done ‘knowingly or intentional-
ly’ ”).8
[8] In sum, because a violation of subsection (1)(b) of Ore-
gon’s second-degree assault statute, Or. Rev. Stat.
7
We do not hold that “knowingly” always suffices under Begay, for per-
haps there are some offenses that, while committed “knowingly,” do not
typically involve purposeful, violent, and aggressive conduct. But it suf-
fices here.
8
That these states may define “knowingly” differently than Oregon does
not alter our conclusion, because, as discussed above, a conviction for
“knowingly caus[ing] physical injury to another by means of a deadly or
dangerous weapon,” Or. Rev. Stat. § 163.175(1)(b), “typically involve[s]
purposeful, violent, and aggressive conduct,” Begay, 553 U.S. at 144-45
(internal quotation marks omitted).
UNITED STATES v. CREWS 13695
§ 163.175(1)(b), presents a serious potential risk of physical
injury to another and “typically involve[s] purposeful, violent,
and aggressive conduct,” Begay, 553 U.S. at 144-45 (internal
quotation marks omitted), we hold that it is categorically a
crime of violence under Guidelines section 4B1.2(a)(2).
AFFIRMED.