United States v. Fagatele

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 5, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-4004
(D.C. No. 2:17-CR-00062-DN-1)
FEUU FAGATELE, (D. Utah)

Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before MORITZ, McKAY, and CARSON, Circuit Judges.
_________________________________

Feuu Fagatele appeals his 46-month prison sentence, arguing the district court

erred in classifying Utah third-degree aggravated assault as a crime of violence under

§ 4B1.2 of the United States Sentencing Guidelines (U.S.S.G.). For the reasons

discussed below, we conclude third-degree aggravated assault “has as an element the

use, attempted use, or threatened use of physical force against the person of another.”

U.S.S.G. § 4B1.2(a)(1). Accordingly, we affirm Fagatele’s sentence.

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
 Background

Fagatele pleaded guilty to one count of being a felon in possession of a

firearm. See 18 U.S.C. § 922(g)(1). Based in part on Fagatele’s 2013 Utah conviction

for third-degree aggravated assault—an offense the Presentence Investigation Report

(PSR) classified as a crime of violence—the PSR calculated a base offense level of

20. See U.S.S.G. § 2K2.1(a)(4) (assigning base offense level of 20 if “defendant

committed any part of the instant offense subsequent to sustaining one felony

conviction [for] a crime of violence”); Utah Code Ann. § 76-5-103 (2012) (defining

third-degree aggravated assault as assault committed by person who uses dangerous

weapon or “other means or force likely to produce death or serious bodily injury”).

Fagatele objected, arguing in relevant part that third-degree aggravated assault

does not constitute a crime of violence under § 4B1.2(a)’s elements clause. See

§ 4B1.2(a)(1) (defining crime of violence as offense that “has as an element the use,

attempted use, or threatened use of physical force against the person of another”). In

support, he advanced three arguments. First, he asserted that third-degree aggravated

assault “can be committed recklessly” and that only those statutes requiring proof of

intentional force can satisfy the elements clause. R. vol. 1, 25. Second, he alleged

that an individual can commit third-degree aggravated assault by “using force against

property,” id. at 27 (emphasis added), and pointed out that an offense only satisfies

the elements clause if it “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” § 4B1.2(a)(1) (emphasis added).

Third, he noted that third-degree aggravated assault encompasses assault committed

2
by individuals who use “other means or force,” § 76-5-103(1)(b) (emphasis added),

and argued that to the extent “Utah law allows for ‘other means’ to form the basis of

conviction,” third-degree aggravated assault can necessarily “occur without the use

of force,” R. vol. 1, 92.

The district court rejected all three arguments. First, it ruled that contrary to

Fagatele’s assertion, reckless offenses can satisfy the elements clause. Second, it

rejected Fagatele’s assertion that an individual can commit third-degree aggravated

assault by directing violent force against property, reasoning that § 76-5-103(1)(b)

instead “puts the requisite person at the forefront.” R. vol. 1, 111 (emphasis added).1

Third, the district court concluded that Fagatele’s other-means argument failed

because (1) third-degree aggravated assault has simple assault as an element;

(2) Utah’s definition of simple assault requires proof of “threats, attempts, or acts, to

do, cause, or create the risk of force to another,” id. at 110 (citing Utah Stat. Ann.

§ 76-5-102 (2012)); and (3) an individual who commits any of these acts by using

“other means or force likely to produce death or serious bodily injury” under § 76-5-

103(1)(b) necessarily “at least attempt[s] or threaten[s] the use of physical force,” id.

(quoting United States v. Pam, 867 F.3d 1191, 1210 (10th Cir. 2017)). Thus, the

1
Although Fagatele argued below that reckless offenses fall outside
§ 4B1.2(a)(1)’s scope, he concedes on appeal that this argument is now foreclosed by
circuit precedent and raises it only to preserve the argument for Supreme Court
review. See United States v. Bettcher, 911 F.3d 1040, 1047 (10th Cir. 2018). Further,
Fagatele does not pursue his force-against-property argument on appeal. Thus, except
where relevant to the arguments Fagatele does pursue, we do not discuss either of
these theories further.
3
district court ruled that third-degree aggravated assault constitutes a crime of

violence under § 4B1.2(a)(1).

The district court then adopted the PSR’s proposed base offense level of 20;

reduced the offense level by three points because Fagatele accepted responsibility for

his offense, see U.S.S.G. § 3E1.1(a)–(b); and calculated a resulting Guidelines range

of 51 to 63 months. But the district court ultimately varied downward from the

Guidelines range and imposed a 46-month prison sentence. Fagatele now appeals his

sentence.

Analysis

According to Fagatele, the district court erred in classifying third-degree

aggravated assault as a crime of violence under § 4B1.2(a)(1)’s elements clause. In

support, he advances two general arguments. First, he asserts that under the plain

language of § 76-5-103(1), third-degree aggravated assault necessarily encompasses

assaults committed by “means” other than force, and therefore force is not an element of

the offense. § 76-5-103(1)(b). Second, he alleges that third-degree aggravated assault

does not satisfy the elements clause because it can “be committed with a state of mind

less than recklessness” and because only those offenses that require proof of “at least

reckless[ness]” can satisfy the elements clause. Aplt. Br. 4, 31.

Before turning to these specific arguments, we begin by laying out a few general

principles. As noted above, § 4B1.2’s elements clause defines a crime of violence as an

offense that “has as an element the use, attempted use, or threatened use of physical force

against the person of another.” § 4B1.2(a)(1). For purposes of the elements clause, the

4
phrase “physical force” means force that is both (1) physical and (2) violent. Id.; see also

United States v. Ontiveros, 875 F.3d 533, 536–39 (10th Cir. 2017), cert. denied, 138 S.

Ct. 2005 (2018). Physical force is “force exerted by and through concrete bodies—

distinguishing physical force, from, for example, intellectual force or emotional force.”

Stokeling v. United States, 139 S. Ct. 544, 552 (2019) (quoting Johnson v. United States,

559 U.S. 133, 138 (2010)). Violent force, on the other hand, is “force capable of causing

physical pain or injury to another person.” Id. at 553 (quoting Johnson, 559 U.S. at 140).

With this understanding of what physical force is, we can turn to our next task:

determining whether a particular offense has such physical force “as an element.”

§ 4B1.2(a)(1). Notably, this inquiry goes beyond the question of whether the relevant

statute requires proof that an offender actually used physical force. Instead, in

determining whether a particular offense satisfies the elements clause, we ask whether

that offense “has as an element” (1) the actual use of physical force, (2) the attempted use

of physical force, or (3) the threatened use of physical force. Id.

To answer this question, we apply either the “pure categorical approach” or “the

modified categorical approach.” United States v. Degeare, 884 F.3d 1241, 1246 (10th

Cir. 2018). Under the pure categorical approach, “we examine the statute—and only the

statute—and ask whether ‘it can be violated without the “use, attempted use, or

threatened use of physical force.”’” Id. (quoting United States v. Titties, 852 F.3d 1257,

1273 (10th Cir. 2017)). If so, then the proscribed offense does not satisfy the elements

clause. See id. (discussing 18 U.S.C. § 924(e)(2)(B)(i)’s elements clause); United States

v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017) (explaining that “we look to the least

5
of the acts criminalized by” relevant statute in determining whether that statute

“realistically reaches any conduct that” does not satisfy § 924(e)(2)(B)(i)), cert. denied,

138 S. Ct. 702 (2018).2

“This pure categorical approach applies to statutes that aren’t divisible, i.e., those

that contain ‘a single, indivisible set of elements.’” Degeare, 884 F.3d at 1246 (quoting

Descamps v. United States, 570 U.S. 254, 258 (2013)). But “if the statute in question is

divisible, i.e., if it ‘contains more than one crime,’” we apply the modified categorical

approach instead. Id. at 1246 (quoting Titties, 852 F.3d at 1265). Under the modified

categorical approach, we may go beyond the language of the statute “to determine which

of the statute’s alternative crimes the defendant was actually convicted of committing.”

Id. “Once we make that threshold determination, we can then apply the categorical

approach to the relevant statutory alternative.” Id.

Here, the district court ruled that § 76-5-103(1)—which proscribes assault

committed by a person who uses “(a) a dangerous weapon” or “(b) other means or force

likely to produce death or serious bodily injury”—is indivisible. Notably, Fagatele does

not challenge this aspect of the district court’s ruling on appeal. Indeed, he concedes the

district court was correct in this regard. Thus, for purposes of this appeal, we assume

without deciding that § 76-5-103(1) is indivisible, apply the pure categorical approach,

and ask whether “the least of the acts criminalized by” § 76-5-103(1) constitutes a crime

2
Because the language of § 4B1.2(a)(1)’s elements clause is identical to the
language of § 924(e)(2)(B)(i)’s elements clause, we may look to cases interpreting
the latter in determining how to apply the former. United States v. Williams, 559 F.3d
1143, 1147 n.7 (10th Cir. 2009).
6
of violence under the elements clause. Hammons, 862 F.3d at 1054; see also United

States v. Kendall, 876 F.3d 1264, 1269–71 (10th Cir. 2017) (assuming without deciding

that relevant portion of statute was indivisible, applying categorical approach to that

specific portion of statute, and concluding that defendant’s offense categorically

constituted crime of violence), cert. denied, 138 S. Ct. 1582 (2018). Further, because

Fagatele also concedes that assault committed by a person who uses a dangerous weapon

(as proscribed by § 76-5-103(1)(a)), satisfies the elements clause, we limit the remainder

of our discussion to assault by a person who uses “other means or force likely to produce

death or serious bodily injury” (as proscribed by § 76-5-103(1)(b)). That is, we ask

whether § 76-5-103(1)(b) “can be violated without the ‘use, attempted use, or threatened

use of physical force.’” Degeare, 884 F.3d at 1246 (quoting Titties, 852 F.3d at 1273).

A. Other Means or Force

As relevant here, Utah defines third-degree aggravated assault as assault

committed by an individual who uses “other means or force likely to produce death or

serious bodily injury.” § 76-5-103(1)(b) (emphasis added). By using the word “or” to

separate the words “other means” from the word “force,” Fagatele asserts, Utah’s

legislature necessarily distinguished between force and something “that is specifically not

force.” Aplt. Br. 11 (emphasis added).3 Thus, Fagatele insists, the plain language of § 76-

3
The parties disagree about whether the adjective “other” modifies the noun
“means” and the noun “force,” or whether it instead modifies only the former.
Because we need not resolve the parties’ disagreement on this point to resolve this
appeal, we assume without deciding that, as Fagatele maintains, the relevant portion
of the statute prohibits (1) assault by an individual who uses “force” and (2) assault
by an individual who uses “other means.” § 76-5-103(1)(b).
7
5-103(1)(b) “makes clear that force is not required to sustain a conviction for third-degree

aggravated assault.” Id. Because the government concedes Fagatele raised this argument

below, we review de novo the district court’s ruling that § 76-5-103(1)(b) categorically

satisfies the elements clause. See United States v. Benton, 876 F.3d 1260, 1262 (10th Cir.

2017). In doing so, we first ask whether third-degree aggravated assault requires force

that is physical in nature and then ask whether the requisite force is violent. See

Ontiveros, 875 F.3d at 536–39.

In answering the first of these two questions, we begin by noting that to commit

third-degree aggravated assault under § 76-5-103(1)(b), a person must commit simple

assault as defined by § 76-5-102. See § 76-5-103(1) (listing simple assault as element of

third-degree aggravated assault). Section 76-5-102, in turn, defines simple assault as

(1) “an attempt, with unlawful force or violence, to do bodily injury to another”; (2) “a

threat, accompanied by a show of immediate force or violence, to do bodily injury to

another”; or (3) “an act, committed with unlawful force or violence, that causes bodily

injury to another or creates a substantial risk of bodily injury to another.” § 76-5-102(1).

Thus, as the district court correctly ruled, an individual who commits third-degree

aggravated assault under § 76-5-103(1)(b) necessarily causes bodily injury, attempts to

cause bodily injury, threatens to cause bodily injury, or creates a substantial risk of bodily

injury.

Critically, “[i]t is impossible to cause bodily injury without” using force that is

physical, as opposed to force that is intellectual or emotional. Ontiveros, 875 F.3d at 536–

39 (alteration in original) (emphasis omitted) (quoting United States v. Castleman, 572

8
U.S. 157, 170 (2014)). Thus, when actual bodily injury is an element of an offense, so

too is the actual use of physical force—regardless of whether the requisite injury results

directly, e.g., “from a kick or punch,” or “indirectly,” e.g., where an individual tricks

someone “into drinking a poisoned beverage.” Id. at 536–37 (quoting Castleman, 572

U.S. at 170–71); see also Castleman, 572 U.S. at 171 (“The ‘use of force’ . . . is not the

act of ‘sprinkl[ing]’ the poison; it is the act of employing poison knowingly as a device to

cause physical harm.” (second alteration in original) (quoting Brief for Respondent at 37,

Castleman, 572 U.S. 157, No. 12-1371, 2013 WL 6665058, at *37)).

Fagatele resists this conclusion, asserting that “other circuits have refused to

reverse-engineer a prior conviction to fall within the [elements] clause” where a statute

requires proof of injury. Aplt. Br. 21 (citing United States v. Mayo, 901 F.3d 218, 227 (3d

Cir. 2018)). But because one panel of this court cannot overrule another in the absence of

an “intervening” Supreme Court decision—and because Fagatele identifies no such

intervening Supreme Court decision here—we remain bound by our holding in Ontiveros.

United States v. Doe, 865 F.3d 1295, 1298–99 (10th Cir. 2017) (quoting United States v.

Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014)); see also Ontiveros, 875 F.3d at 536–38

(holding that one cannot “cause bodily injury without the use of physical force” (quoting

Castleman, 572 U.S. at 170)). Thus, for purposes of the elements-clause analysis, we

must treat the terms “bodily injury” and “physical force” as interchangeable: if a statute

requires proof that the offender actually caused bodily injury, then the statute necessarily

requires proof that the offender actually used force that is physical. See Ontiveros, 875

F.3d at 536–37. Likewise, if the statute requires proof that the offender threatened or

9
attempted to cause bodily injury, then the statute necessarily requires proof that the

offender threatened or attempted to use physical force. See United States v. Benton, 876

F.3d 1260, 1262–63 (10th Cir. 2017) (“There is therefore no basis for a distinction

between threatening bodily harm and threatening physical force.”), cert. denied, 138 S.

Ct. 1576 (2018).

Further, for purposes of the elements-clause analysis, we treat the risk of bodily

injury as synonymous with the threatened use of physical force. See United States v.

Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005) (reasoning that even if relevant

statute did not require proof that defendant actually used force, statute nevertheless had

“as an element the ‘threatened use of physical force’” because statute required proof of

conduct that “could always lead to more substantial and violent contact” (quoting

U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (2004)). Thus, if a statute requires proof of conduct that is

“likely to produce bodily injury,” then the statute necessarily “include[s] as an element

the ‘threatened use of physical force.’” Id. (quoting § 2L1.2 cmt. 1(B)(iii)); see also id.

(“[I]f the statute is violated by contact that can inflict great bodily harm, disfigurement or

death, it seems clear that, at the very least, the statute contains as an element the

‘threatened use of physical force.’” (emphases added) (quoting § 2L1.2 cmt. 1(B)(iii)));

cf. United States v. Williams, 893 F.3d 696, 703–04 (10th Cir. 2018) (rejecting

defendant’s argument “that Treto-Martinez is no longer good law”), cert. denied, 139 S.

Ct. 795 (2019).

In asserting otherwise, Fagatele insists that we must not elide “the difference

between use of force and risk of injury” because doing so effectively “resurrects the

10
residual clause.”4 Aplt. Br. 24. But this argument overlooks the fact that the elements

clause does not encompass only those offenses that have as an element the actual use of

force; it also encompasses those offenses that have as an element the threatened use of

physical force. And this court has expressly equated the threatened use of force with the

risk of injury. See Treto-Martinez, 421 F.3d at 1160. Thus, in the absence of an

intervening Supreme Court decision, this challenge to the district court’s ruling is also

foreclosed by binding circuit precedent.5 See Doe, 865 F.3d at 1298–99.

In sum, because simple assault as defined in § 76-5-102(1) requires proof that the

offender caused bodily injury, attempted to cause bodily injury, threatened to cause

4
A previous version of § 4B1.2 included a residual clause, the language of
which was identical to the language of § 924(e)(2)(B)’s now-defunct residual clause.
See Beckles v. United States, 137 S. Ct. 886, 890 (2017) (noting that Court struck
down § 924(e)(2)(B)’s residual clause as unconstitutionally vague under Due Process
Clause). But the Court has since clarified that the Guidelines are not “subject to”
such “vagueness challenges.” Id. Thus, to the extent Fagatele suggests that we will
run afoul of the Due Process Clause if we interpret § 4B1.2(a)(1)’s elements clause to
encompass those offenses that have as an element the risk of physical force, we reject
that argument. See id.
5
Fagatele also alleges that the district court erred in relying on the fact that
§ 76-5-103(1) was “designed to protect people” in concluding that third-degree
aggravated assault satisfies the elements clause. Aplt. Br. 25. But to the extent the
district court addressed whether § 76-5-103(1) was designed “to protect against
threats to personal safety,” it did so in direct response to Fagatele’s now-abandoned
assertion that § 76-5-103(1) does not require the relevant force to “be directed against
the person of another” as opposed to “against property.” R. vol. 1, 31, 111; see also
supra n.1; Pam, 867 F.3d at 1210–11 (indicating that when statute is designed “to
protect against threats to personal safety, rather than threats to property,” this
indicates statute “requires that physical force be employed ‘against the person of
another’” (quoting § 924(e)(2)(B)(i)). Thus, contrary to Fagatele’s assertion, the
district court never suggested that a statute satisfies the elements clause merely
because the statute’s goal is to “protect against threats to personal safety.” Aplt. Br.
25. Accordingly, we need not address Fagatele’s assertion that the court erred in
doing so.
11
bodily injury, or created a substantial risk of bodily injury, we hold that simple assault as

defined in § 76-5-102(1) has as an element the actual, attempted, or threatened use of

force that is physical in nature. See Benton, 876 F.3d at 1262–63; Ontiveros, 875 F.3d at

536–39; Treto-Martinez, 421 F.3d 1156, 1159–60. And because simple assault is an

element of third-degree aggravated assault, the same is true of § 76-5-103(1)(b).

The remaining question is whether the physical force contemplated by § 76-5-

103(1)(b) is violent physical force. See Stokeling, 139 S. Ct. at 552–54 (distinguishing

between statutes that require proof of violent force—i.e., “force capable of causing

physical pain or injury to another person”—and statutes that merely require proof of

“slightest offensive touching” (quoting Johnson, 559 U.S. at 139–40)). Here, the district

court answered that question in the affirmative. In support, it reasoned that regardless of

whether an offender commits third-degree aggravated assault by using “other means or

force,” the offender must do so in a manner that is “likely to produce death or serious

bodily injury.” § 76-5-103(1)(b) (emphasis added). And it concluded that when a statute

refers to force that is “likely to produce death or serious bodily injury,” the force at issue

is necessarily violent. R. vol. 1, 109–10.

Notably, Fagatele concedes in his opening brief that to the extent § 76-5-103(1)(b)

“criminalizes conduct involving ‘other means,” it does so only if “those ‘other means’ are

likely to produce death or serious bodily injury.” Aplt. Br. 13 (quoting § 76-5-103(1)(b)).

Indeed, the government expressly argues in its response brief that regardless of how we

define the phrase “other means,” such “other means” must be likely to produce death or

serious bodily injury before those means will “satisfy” § 76-5-103(1)(b). Aplee. Br. 43

12
(quoting § 76-5-103(1)(b)). And Fagatele presents no argument to the contrary in his

reply brief. In fact, he again acknowledges in his reply brief that to convict a defendant of

third-degree aggravated assault, a jury must conclude “the assault was carried out with a

dangerous weapon or other means likely to produce death or serious injury.” Rep. Br. 2

(emphasis added) (quoting State v. Tinoco, 860 P.2d 988, 990 (Utah Ct. App. 1993)).

And even if Fagatele had challenged the government’s argument on this point, we would

reject such a challenge: the phrase “likely to produce death or serious bodily injury”

clearly modifies both “other means” and “force.” § 76-5-103(1)(b); cf. Potts v. Ctr. for

Excellence in Higher Educ., Inc., 908 F.3d 610, 615 (10th Cir. 2018) (noting that “[w]hen

there is a straightforward, parallel construction that involves all nouns or verbs in a series,

a prepositive or postpositive modifier normally applies to the entire series” (alteration in

original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 147 (2012))).

This conclusion renders it unnecessary to resolve the parties’ disagreement over

whether Utah’s legislature intended for the terms “other means” and “force” to convey

similar concepts or wholly separate ones. § 76-5-103(1)(b). Whatever these terms mean,

a defendant who uses either (1) “other means” or (2) “force” to commit simple assault

only commits third-degree aggravated assault if he or she employs such “other means” or

“force” in a manner that is “likely to produce death or serious bodily injury.” Id. Thus,

we need only address Fagatele’s assertion that when an individual commits assault by

using “other means” that are “likely to produce death or serious bodily injury,” those

13
other means nevertheless do not “categorically require[] the use, attempted use, or

threatened use of physical force against another person.” Aplt. Br. 17.

We reject this argument. As discussed above, an individual cannot commit simple

assault under § 76-5-102(1)—or, by extension, third-degree aggravated assault under

§ 76-5-103(1)(b)—without at least threatening to use force that is physical. See

Ontiveros, 875 F.3d at 536–39; Treto-Martinez, 421 F.3d at 1159–60. And because § 76-

5-103(1)(b) confines such threatened physical force to the type that is “likely to produce

death or serious bodily injury,” it necessarily has as an element the threatened use of

physical force that is violent. § 76-5-103(1)(b); see also Benton, 876 F.3d at 1263–64

(holding that when requisite force “is calculated or likely to produce death or serious

bodily injury,” such force is necessarily “capable of causing physical pain or injury to

another person,” and thus constitutes violent physical force (first quoting State v. Bowers,

721 P.2d 268, 272 (Kan. 1986); then quoting Johnson, 559 U.S. at 140)), cert. denied,

138 S. Ct. 1576 (2018); Kendall, 876 F.3d at 1272 (“[C]ommitting a violent act that

creates a grave risk of causing significant bodily injury will always involve the use,

attempted use, or threatened use of violent physical force.”). Accordingly, we hold that

third-degree aggravated assault as defined in § 76-5-103(1)(b) has as an element at least

the threatened use of violent physical force.6

6
According to Fagatele, this conclusion erases the “careful distinction
between” crimes that satisfy § 4B1.2(a)(1)’s elements clause and those that satisfy
§ 4B1.2(a)(2)’s enumerated-offenses clause. Aplt. Br. 19; see also § 4B1.2(a)(2)
(stating that certain offenses, including aggravated assault, constitute crimes of
violence). But Fagatele does not cite any authority holding that offenses cannot
simultaneously satisfy both the elements clause and the enumerated-offenses clause.
14
B. Less Than Recklessness

In his second challenge to the district court’s ruling, Fagatele asserts that (1) only

those offenses that require proof of at least recklessness can satisfy the elements clause,

and (2) § 76-5-103(1)(b) can be committed with a mens rea less than recklessness.

But as Fagatele acknowledges in his opening brief, this is not the same

recklessness argument he raised in district court: there, he argued only that § 76-5-

103(1)(b) can be committed with a mens rea of recklessness—not with something less

than that. And as discussed above, he has expressly abandoned that argument on appeal.

See supra n.1. Further, because the recklessness argument he raises on appeal is different

from the one he raised below, we may review his new argument only for plain error. See

United States v. Woods, 764 F.3d 1242, 1245 (10th Cir. 2014); cf. United States v.

Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017). Yet as the government points out,

Fagatele does not make a plain-error argument in his opening brief.

In a civil case, Fagatele’s failure to argue for plain error in his opening brief would

“mark[] the end of the road for” his new recklessness argument. Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). But as the government notes, this court has

suggested that a defendant in a criminal case may raise a plain-error argument for the first

time in a reply brief. See United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016).

And Fagatele’s reply brief contains such a plain-error argument. We exercise our

discretion to address that argument here. Cf. id.

And this court has indicated they can. Cf. United States v. Duran, 754 F. App’x 739,
745 (10th Cir. 2018) (unpublished).
15
 To succeed under our rigorous plain-error test, Fagatele must show, inter alia, that

(1) the district court erred and (2) its error was “plain”—i.e., clear or obvious under

settled law. United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). In the

context of this case, that means Fagatele must show both (1) that offenses that can be

committed with a mens rea less than recklessness plainly cannot satisfy the elements

clause and (2) that third-degree aggravated assault as defined by § 76-5-103(1)(b) can

plainly be committed with a mens rea less than recklessness. See id. at 1221. To

demonstrate these matters are plain, Fagatele must demonstrate either that this court or

the Supreme Court has resolved these matters in his favor, see id., or that the language of

the relevant statutes is “clearly and obviously” limited to the interpretation Fagatele

advances, United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003).

The government does not dispute that an offense plainly cannot satisfy the

elements clause unless it requires at least a reckless state of mind. Cf. Leocal v. Ashcroft,

543 U.S. 1, 9 (2004) (holding that 18 U.S.C. § 16’s elements clause requires “a higher

degree of intent than negligent or merely accidental conduct”). Instead, the government

argues that Fagatele cannot show a mens rea less than recklessness will plainly suffice to

violate § 76-5-103(1)(b).

We agree. Under federal law, a person acts recklessly if he or she consciously

disregards a substantial risk of harm. United States v. Mann, 899 F.3d 898, 906 (10th Cir.

2018), cert. denied, 139 S. Ct. 2637 (2019). But according to Fagatele, a person can

violate § 76-5-103(1)(b) even if he or she acted without “knowledge” that his or her

conduct was “likely” to cause serious bodily injury. Aplt. Br. 28. In support, he cites

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State v. Salt, 347 P.3d 414 (Utah. Ct. App. 2015). There, the Utah Court of Appeals

indicated that “specific intent to inflict serious bodily injury—or knowledge that such

injury is likely to occur—is not required for a [§ 76-5-103(1)(b)] conviction.” Id. at 420

(emphasis added). And this statement indeed suggests a defendant need not consciously

disregard a substantial risk that his or her conduct will cause harm to another to violate

§ 76-5-103(1)(b)—thus indicating a defendant can commit third-degree aggravated

battery with a mens rea less than recklessness as defined by federal law. Compare id.,

with Mann, 899 F.3d at 906.

Yet even assuming we may look to the decision of a state’s intermediate appellate

court (as opposed to a decision of this court or the Supreme Court) to determine whether

a particular error was plain, cf. Wolfname, 835 F.3d at 1221, the Utah Court of Appeals

ultimately confined its holding in Salt to the question of whether specific intent to cause

bodily injury is an element of third-degree aggravated assault, see Salt, 347 P.3d at 419–

20. As Fagatele points out, the Salt court did initially characterize the defendant’s

argument in that case as asserting the district court erred in failing to “require the jury to

find that [the defendant] acted with intent, or knowledge, or recklessness with respect to

the result of his conduct.” Id. at 419 (emphasis added) (citation omitted). But the Salt

court then reframed the defendant’s argument, asking only whether the district court

should have instructed the jury it could not convict the defendant unless it determined he

“specifically intended to cause death or serious bodily injury.” Id. (emphasis modified).

Notably, in rejecting this narrower version of the defendant’s argument, the Salt

court relied on a series of cases indicating only that specific intent is not an element of

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third-degree aggravated assault. In other words, none of the decisions the Salt court relied

upon suggest that a defendant can commit third-degree aggravated assault without at least

disregarding a known risk of harm. See id. at 419–20; State v. Potter, 627 P.2d 75, 78

(Utah 1981) (discussing jury instruction that stated defendant did not need “specific

intent to violate the law”; noting that this instruction applied to charge of third-degree

aggravated assault); State v. McElhaney, 579 P.2d 328, 328–29 (Utah 1978) (confirming

that reckless mens rea can support conviction for third-degree aggravated assault;

explaining that individual acts recklessly if he or she “is aware of but consciously

disregards a substantial and unjustifiable risk that” harm will occur); State v. Mangum,

318 P.3d 250, 252 (Utah Ct. App. 2013) (“[T]here was no requirement to show specific

intent in order to support [conviction for third-degree aggravated assault].”).

Accordingly, we agree with the government: although Salt may contain some

ambiguous language, it does not clearly or obviously demonstrate that a defendant can

violate § 76-5-103(1)(b) with a mens rea less than recklessness. And because this means

Fagatele cannot satisfy our plain-error test, we will not reverse on this basis. See

Wolfname, 835 F.3d at 1217.

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 Conclusion

Because (1) § 76-5-103(1)(b) categorically has as an element at least the

threatened use of violent physical force; and (2) Fagatele fails to demonstrate that § 76-5-

103(1)(b) can plainly be violated with a mens rea less than recklessness, we affirm the

district court’s ruling that third-degree aggravated assault constitutes a crime of violence

under § 4B1.2(a)(1).

Entered for the Court

Nancy L. Moritz
Circuit Judge

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