United States v. Williams

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
June 15, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3071
(D.C. No. 6:15-CR-10181-EFM-1)
TRAYON L. WILLIAMS, (D. Kan.)

Defendant - Appellant.

_________________________________

ORDER
_________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________

This 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.
 The 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.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

2
 FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 15, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3071

TRAYON L. WILLIAMS,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:15-CR-10181-EFM-1)
_________________________________

Daniel 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.

Jared Maag, Assistant United States Attorney (Thomas E. Beall, United
States Attorney, James A. Brown, Assistant United States Attorney, on the
brief), Topeka, Kansas, for Plaintiff-Appellee.
_________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________

BACHARACH, Circuit Judge.
_________________________________

Mr. 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).

Mr. 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.

I. Mr. Williams’s sentence level was enhanced under § 2K2.1.

Following 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 months’ imprisonment.

The government objected, arguing that the Kansas crime of

aggravated battery constituted a crime of violence. The district court

2
sustained the objection and set the guideline range at 46 to 57 months. 1 Mr.

Williams appeals the enhancement under § 2K2.1.

II. We must determine whether aggravated battery in Kansas
constitutes a crime of violence.

Section 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 violence.

To 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).

1
After calculating the guideline range, the district court departed
downward to 40 months’ imprisonment.

3
 Mr. 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). 2 The resulting issue is whether this crime constitutes a

crime of violence. 3 Id. The district court answered “yes.”

Mr. 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 Manual
§ 4B1.2(a)(1).

Both arguments fail.

III. The mens rea for aggravated battery in Kansas suffices for a
crime of violence.

Mr. Williams argues that the mens rea requirement for aggravated

battery does not suffice for a crime of violence. For this argument, Mr.

2
The parties have agreed that the Kansas statute on aggravated battery
is divisible and that Mr. Williams was convicted under Kan. Stat. Ann.
§ 21-5413(b)(1)(B).
3
The Kansas Supreme Court has held that the use of a deadly weapon
constitutes a means of committing aggravated battery rather than an
element. State v. Ultreras, 295 P.3d 1020, 1036 (Kan. 2013). This holding
requires us to treat aggravated battery in Kansas as a single crime even
though the crime can be committed through different means. See Mathis v.
United States, ___ U.S. ___, 136 S. Ct. 2243, 2256 (2016).

4
Williams asserts that his statute of conviction encompasses conduct that is

reckless and unintentional. We reject Mr. Williams’s argument.

A. “Knowing” conduct can constitute a “crime of violence”
under § 2K2.1.

Under our prior opinions, statutes permitting convictions for reckless

conduct do not qualify as crimes of violence under the guidelines. United

States v. Zuniga-Soto, 527 F.3d 1110, 1123 (10th Cir. 2008); United States

v. Duran, 696 F.3d 1089, 1093 (10th Cir. 2014). 4 To qualify, the crime

must require intent or purpose. United States v. Armijo, 651 F.3d 1226,

1237 (10th Cir. 2011); see Duran, 696 F.3d at 1093 (“The sentencing

enhancement for a prior felony crime of violence may therefore only apply

to [the defendant] if the mens rea for his conviction required intentional

conduct, not recklessness.”).

Aggravated battery in Kansas requires “knowing” conduct. See p. 4,

above. But we have not yet addressed whether a mens rea of “knowing” can

4
The government argues that these opinions have been superseded by
Voisine v. United States, ___ U.S. ___, 136 S. Ct. 2272 (2016). Voisine held
that a misdemeanor crime of domestic violence can be committed
recklessly. 136 S. Ct. at 2280. According to the government, Voisine
applies to the “crime of violence” designation under the sentencing
guidelines. As discussed below, however, Kansas’s aggravated-battery
statute requires “knowing” conduct, which is sufficient under the
guidelines. Thus, we need not decide whether reckless conduct would also
suffice under the guidelines. See Champagne Metals v. Ken-Mac Metals,
Inc., 458 F.3d 1073, 1088 (10th Cir. 2006) (stating that we can affirm on
any ground supported by the record).

5
qualify for a crime of violence under the guidelines. We now hold that

“knowing” conduct is sufficient for a crime of violence under § 2K2.1.

We have concluded that offenses with a mens rea of “knowing” can

constitute violent felonies under the Armed Career Criminal Act (ACCA).

See, e.g., United States v. Hernandez, 568 F.3d 827, 829-30 (10th Cir.

2009) (conviction for “knowingly discharg[ing] a firearm at or in the

direction of . . . one or more individuals” qualified as a violent felony

under the ACCA); United States v. Herron, 432 F.3d 1127, 1137-38 (10th

Cir. 2005) (conviction for “knowingly plac[ing] or attempt[ing] to place

another person in fear of imminent serious bodily injury” qualified as a

violent felony under the ACCA). The ACCA’s definition of “violent

felony” is virtually identical to the guidelines’ definition of a “crime of

violence.” Compare 18 U.S.C. § 924(e)(1), with U.S. Sentencing

Guidelines Manual § 4B1.2(a). Thus, we have drawn on our ACCA case

law when interpreting the guideline term “crime of violence.” See United

States v. Martinez, 602 F.3d 1166, 1173 (10th Cir. 2010) (“[W]e have

looked to interpretations of the ACCA to guide our reading of

§ 4B1.2(a).”); see also United States v. Armijo, 651 F.3d 1226, 1231 (10th

Cir. 2011) (stating that “this court has concluded analysis under the ACCA

applies equally to § 4B1.2(a)”).

Our ACCA case law supports a similar approach under § 2K2.1. For

an aggravated battery in Kansas, the State must prove “that the accused

6
acted when he or she was aware that his or her conduct was reasonably

certain to cause the result.” State v. Hobbs, 340 P.3d 1179, 1184 (Kan.

2015). This requirement separates “knowing” conduct from conduct that is

accidental, negligent, or reckless. See Kan. Stat. Ann. § 21-5202(b)

(separately classifying “knowingly” and “recklessly”); see also United

States v. Ruacho, 746 F.3d 850, 856 (8th Cir. 2014) (explaining that a

crime committed “knowingly” is different from a crime committed

“recklessly”). As a result, we conclude that a mens rea requirement of

“knowing” is sufficient for characterization as a crime of violence under

§ 2K2.1.

B. We reject Mr. Williams’s contrary arguments.

Mr. Williams makes two arguments for why a mens rea of “knowing”

is not sufficient:

1. Kansas’s definition of “knowing” equates to recklessness.

2. Conduct can be “knowing” without intent.

Both arguments fail.

1. Mr. Williams forfeited his argument that Kansas’s standard
of “knowing” equates to recklessness.

First, Mr. Williams argues that Kansas’s definition of “knowing”

conduct is indistinguishable from recklessness. We ordinarily define

“knowing” conduct as conduct undertaken with an awareness that a

particular result “is practically certain.” United States v. Manatau, 647

7
F.3d 1048, 1050 (10th Cir. 2011). But Kansas uses a different phrase,

requiring “reasonable certainty” rather than “practical certainty.” Kan.

Stat. Ann. § 21-5202(i); see pp. 6-7, above. Mr. Williams argues that

Kansas’s requirement of reasonable certainty is indistinguishable from

recklessness. But this argument was forfeited.

Our local rules require that “[f]or each issue raised on appeal, all

briefs must cite the precise reference in the record where the issue was

raised and ruled on.” 10th Cir. R. 28.2(C)(2). Mr. Williams omitted a

record citation for where this issue had been raised or decided in district

court, and we have elsewhere declined to consider issues based on similar

omissions. United States v. LaHue, 261 F.3d 993, 1009, 1014 (10th Cir.

2001); United States v. McClatchey, 217 F.3d 823, 835-36 (10th Cir.

2000); United States v. Janus Indus., 48 F.3d 1548, 1558-59 (10th Cir.

1995). And at oral argument, Mr. Williams conceded that he had not raised

this issue in district court.

But after oral argument, Mr. Williams filed a supplemental letter,

stating that he had presented the argument in district court. There Mr.

Williams cited his response to the government’s objection to the

presentence report. But Mr. Williams’s response had not included an

argument that Kansas’s definition of “knowing” conduct was equivalent to

recklessness. By failing to raise the issue in district court, Mr. Williams

8
forfeited his present argument. See United States v. Gould, 672 F.3d 930,

938 (10th Cir. 2012).

Mr. Williams argues that we should consider the argument anyway

because the government did not rely on the forfeiture. See United States v.

Reider, 103 F.3d 99, 103 n.1 (10th Cir. 1996) (considering a forfeited

appeal point because the government failed to argue on appeal that the

appeal point had been forfeited). We disagree.

The government’s omission leaves us with “dueling

‘waivers/forfeitures.’” United States v. Rodebaugh, 798 F.3d 1281, 1314

(10th Cir. 2015). Mr. Williams forfeited his argument by failing to raise it

in district court, and the government waived its challenge to Mr.

Williams’s forfeiture by failing to raise the challenge on appeal. Id. Thus,

we must exercise discretion in deciding whose forfeiture or waiver to

overlook. Id.

In deciding how to exercise this discretion, we can (1) weigh the

harms from each party’s failure to adequately present its argument and

(2) consider the adequacy of input from the parties. See id. at 1314-17

(comparing the relative consequences of each party’s failure to present its

argument); Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013)

(discussing the adequacy of input from the parties).

The weighing process leads us to conclude that Mr. Williams’s

failure created the greater harm. Because the issue was not raised in

9
district court, neither party briefed the issue there. On appeal Mr. Williams

asserts that Kansas’s standard of “knowing” equates to recklessness, but he

has not identified a single opinion supporting his assertion. Thus, we lack

the citation of any supporting opinion on this issue.

We also lack any pertinent case citations from the government, which

declined to address the issue, focusing instead on the sufficiency of

recklessness for a “crime of violence.” Thus, we lack meaningful input

from the parties or “a reasoned district court decision on the subject.” See

Abernathy, 713 F.3d at 552 (expressing a reluctance “to definitively opine”

on an issue when the appellant forfeited an appeal point and the appellee

waived the forfeiture because the appellee’s scant attention to the issue left

us without “the benefit of vigorous adversarial testing of the issue”).

We have sometimes considered forfeited arguments that present “a

strictly legal question the proper resolution of which is beyond doubt.”

Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992). Mr.

Williams’s argument, equating Kansas’s standard of “knowing” to

recklessness, presents a purely legal question. But proper resolution of the

issue is not beyond doubt.

We have not addressed this issue in a published opinion, and no other

federal court of appeals has expressly addressed this issue. But in an

unpublished opinion, we confronted an analogous issue in Marin-Gonzales

v. Sessions, No. 17-9503, 2018 WL 327437 (10th Cir. Jan. 9, 2018)

10
(unpublished). There we addressed an attempt statute criminalizing conduct

undertaken with an awareness that the prohibited result was reasonably

certain. Marin-Gonzales, 2018 WL 327437, at *3. Even though only

reasonable certainty was required, we determined that the statute did not

criminalize reckless behavior. Id. Instead, we concluded that the statutory

language mirrored the state’s definition of “knowing,” which required

reasonable certainty. Id.; see Utah Code Ann. § 76-2-103(2) (defining

“knowingly”). This conclusion casts doubt on Mr. Williams’s argument

that “reasonable certainty” equates to recklessness.

* * *

Weighing the relative harms and considering the lack of input from

the government and the uncertainty in the resolution, we decline to reach

the merits of Mr. Williams’s forfeited argument.

2. “Knowing” conduct involves general criminal intent, which
suffices for a “crime of violence.”

The resulting issue is whether a mens rea of “knowing” is sufficient

for a “crime of violence” under the guidelines. The guidelines’ reference to

a “crime of violence” requires “purposeful or intentional behavior.” United

States v. Armijo, 651 F.3d 1226, 1236 (10th Cir. 2011). In light of this

requirement, Mr. Williams contends that Kansas’s mens rea of “knowing”

is insufficient because it does not require intent. We reject this contention.

11
 In Kansas, a crime committed “knowingly” is considered a crime of

“general criminal intent.” Kan. Stat. Ann. § 21-5202(i). Crimes requiring

“general criminal intent” can constitute “violent felonies” under the

ACCA. United States v. Ramon Silva, 608 F.3d 663, 673 (10th Cir. 2010);

see also United States v. Hernandez, 568 F.3d 827, 831-32 (10th Cir. 2009)

(characterizing a crime committed knowingly as a violent felony because

the crime required an intent to undertake the prohibited action). Because

“general criminal intent” suffices for a “violent felony” under the ACCA,

we conclude that “general criminal intent” also suffices for a “crime of

violence” under the guidelines. See p. 6, above (discussing the significance

of ACCA case law in interpreting the guideline term “crime of violence”).

* * *

The Kansas crime of aggravated battery entails general criminal

intent, requiring “knowing” conduct. This requirement is sufficient for a

crime of violence under § 2K2.1

IV. Aggravated battery in Kansas includes physical force as an
element of the offense.

To constitute a crime of violence, the prior statute of conviction must

have “as an element the use, attempted use, or threatened use of physical

force against the person of another.” U.S. Sentencing Guidelines Manual

§ 4B1.2(a)(1); see p. 3, above. Mr. Williams argues that Kansas’s crime of

aggravated battery does not require physical force because the crime is

12
triggered whenever “bodily harm” is caused. Kan. Stat. Ann. § 21-

5413(b)(1)(B). Mr. Williams’s argument fails because “the knowing or

intentional causation of bodily injury necessarily involves the use of

physical force.” United States v. Castleman, ___ U.S. ___, 134 S. Ct. 1405,

1414 (2014).

We addressed a similar issue in United States v. Treto-Martinez, 421

F.3d 1156 (10th Cir. 2005). There we concluded that a prior version of

Kansas’s crime of aggravated battery required the use or threatened use of

physical force and qualified as a crime of violence under the guidelines. 5

Treto-Martinez, 421 F.3d at 1159-60. For this conclusion, we relied on the

need to intentionally cause physical contact with another person in a way

that could cause great bodily harm, disfigurement, or death. This element,

in our view, involved the use or threatened use of physical force. Id. at

1160. Our rationale in Treto-Martinez applies equally to Kansas’s current

statute on aggravated battery, which criminalizes the causation of “bodily

harm.” Compare Kan. Stat. Ann. § 21-5413(b)(1)(B), with Kan. Stat. Ann.

§ 21-3414(a)(1)(C) (repealed 2010).

5
The section of the prior Kansas statute, addressed in Treto-Martinez,
had defined aggravated battery as “intentionally causing physical contact
with another person when done in a rude, insulting or angry manner with a
deadly weapon, or in any manner whereby great bodily harm, disfigurement
or death can be inflicted.” Kan. Stat. Ann. § 21-3414(a)(1)(C) (repealed
2010).

13
 Mr. Williams contends that Treto-Martinez is no longer good law.

For this contention, he argues that Kansas’s current statute asks only

whether an injury was caused and not whether force was used. Mr.

Williams points to United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir.

2005), where we concluded that the use of force and the causation of injury

are not equivalent elements. 414 F.3d at 1285.

But after issuance of the opinion in Perez-Vargas, the Supreme Court

decided United States v. Castleman, holding that a misdemeanor conviction

for intentionally or knowingly causing bodily injury to a child’s mother

constituted a misdemeanor crime of domestic violence. 134 S. Ct. 1405,

1414 (2014). The Supreme Court explained that “the knowing or

intentional causation of bodily injury necessarily involves the use of

physical force.” Id.

We applied Castleman in United States v. Ontiveros, 875 F.3d 533

(10th Cir. 2017). There the defendant argued that physical force was not an

element of his crime because the statute of conviction had focused on the

result of the conduct rather than on the conduct itself. We rejected this

argument, explaining that Castleman had “specifically rejected the

contention that ‘one can cause bodily injury without the use of physical

force.’” Ontiveros, 875 F.3d at 536 (quoting Castleman, 134 S. Ct. at

1414). We added that “Perez-Vargas’s logic on this point is no longer good

law in light of Castleman.” Id.; see also United States v. Kendall, 876 F.3d

14
1264, 1271 (10th Cir. 2017) (recognizing that Perez-Vargas “has been

abrogated by the Supreme Court”).

Mr. Williams concedes that “the panel decision in Ontiveros

effectively shutters most of [his] second argument.” Appellant’s Reply Br.

at 3 n.1. But Mr. Williams attempts to distinguish Ontiveros, arguing that

 Ontiveros concerned only intentional conduct and

 the Kansas aggravated-battery statute can be violated
unintentionally.

We have already addressed this argument: Kansas’s crime of aggravated

battery requires a mens rea of “knowing” and general criminal intent,

which suffice for a crime of violence under the guidelines. Thus, Ontiveros

is directly applicable. 6

***

The Kansas statute on aggravated battery criminalizes the knowing

causation of bodily harm. This element involves the use or threatened use

of physical force. See United States v. Castleman, ___ U.S. ___, 134 S. Ct.

1405, 1414 (2014). As a result, aggravated battery in Kansas constitutes a

crime of violence under § 2K2.1.

6
Mr. Williams also argues that his conviction is categorically not a
crime of violence because the Kansas crime of aggravated battery does not
require physical force. This argument fails for the same reasons. The
statute requires a finding that the defendant caused bodily harm. Kan. Stat.
Ann. § 21-5413(b)(1)(B). And intentionally causing bodily harm
necessarily involves the use of physical force. United States v. Castleman,
___ U.S. ___, 134 S. Ct. 1405, 1414 (2014).

15
V. Conclusion

We conclude that Mr. Williams’s prior crime of aggravated battery

constitutes a crime of violence under § 2K2.1. Aggravated battery requires

knowing conduct, which entails general criminal intent and suffices for a

crime of violence. In addition, the Kansas statute criminalizes the

causation of bodily harm, which requires the use or threatened use of

physical force. As a result, the district court properly enhanced Mr.

Williams’s offense level. We affirm.

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