                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       November 7, 2017

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

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-1362

TITO ONTIVEROS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                         (D.C. No. 1:11-CR-00214-PAB-1)
                       _________________________________

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Emily M. May, Assistant United
States Attorney, and Robert C. Troyer, Acting United States Attorney, on the brief),
Denver, Colorado, for Plaintiff-Appellee.
                        _________________________________

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

KELLY, Circuit Judge.
                         _________________________________

      Defendant-Appellant, Tito Ontiveros, appeals from the district court judgment

resentencing him following the vacation of his original sentence as a result of the
Supreme Court’s decision in Johnson v United States (“Johnson II”), 135 S. Ct. 2551

(2015). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.



                                       Background

         Mr. Ontiveros was convicted by a jury of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1), and possessing an unregistered firearm, 26 U.S.C.

§ 5861(d). After finding that Mr. Ontiveros qualified as an armed career criminal

under the Armed Career Criminal Act (ACCA) for having committed three prior

violent felonies, one of which fell under the “residual clause,” the district court

sentenced Mr. Ontiveros to 382 months’ imprisonment. 1 R. 340. The sentence was

affirmed on direct appeal. United States v. Ontiveros, 550 F. App’x 624 (10th Cir.

2013).

         In 2015, the Supreme Court held that the ACCA’s residual clause is

unconstitutionally vague. Johnson II, 135 S. Ct. at 2563. Mr. Ontiveros filed a 28

U.S.C. § 2255 motion to vacate his prior sentence. 1 R. 327–31. The district court

vacated his sentence, and scheduled him for resentencing. 1 R. 340–41.

         At resentencing, the new presentence report (PSR) recommended a base

offense level of 22 under § 2K2.1(a)(3) of the Sentencing Guidelines because Mr.

Ontiveros had one prior felony conviction that counted as a crime of violence. 2 R.

122. The government objected, arguing that the base offense level should be 26

under § 2K2.1(a)(1) because Mr. Ontiveros had two prior crimes of violence. 1 R.

347–48.      It argued that Mr. Ontiveros’s 2007 conviction for Colorado second-degree

                                            2
assault, in violation of Colo. Rev. Stat. § 18-3-203(1)(g), also counted as a crime of

violence. 1 R. at 349. Mr. Ontiveros conceded that one of his prior convictions

constituted a crime of violence but argued, relying on our decision in United States v.

Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), that his Colorado second-degree

assault conviction did not. 1 R. 379–84. The government countered that the

Supreme Court’s decision in United States v. Castleman, 134 S. Ct. 1405 (2014),

controlled the case.

      The district court agreed with the government and, based on the higher offense

level, sentenced Mr. Ontiveros to two concurrent 110-month sentences with a three-

year term of supervised release. Mr. Ontiveros now appeals, arguing that Colorado

second-degree assault is not a “crime of violence.”



                                      Discussion

      We review de novo whether a prior conviction is a “crime of violence” under

U.S.S.G. § 4B1.1(a). United States v. Williams, 559 F.3d 1143, 1146 (10th Cir.

2009).1 Section 2K2.1(a)(1) of the guidelines indicates a base level of 26 for a

firearm conviction “subsequent to sustaining at least two felony convictions of . . .

crime[s] of violence.” U.S.S.G. § 2K2.1(a)(1). The guidelines define a “crime of

violence” as any federal or state offense “punishable by imprisonment for a term



1
 “‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application
Note 1 of the Commentary to § 4B1.2.” Commentary to U.S.S.G. § 2K2.1
(Definitions).
                                           3
exceeding one year, that (1) has as an element the use, attempted use, or threatened

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

       To determine whether a prior conviction qualifies as a crime of violence, we

apply the categorical approach if the criminal statute under which the defendant was

charged contains only one set of elements. Descamps v. United States, 133 S. Ct.

2276, 2281–82 (2013). A person commits second-degree assault in Colorado if

“[w]ith intent to cause bodily injury to another person, he or she causes serious

bodily injury to that person or another.” Colo. Rev. Stat. § 18-3-203(1)(g) (2016).

Given only one set of elements, we therefore apply the categorical approach. Thus,

we consider only the statutory definition, not the underlying facts of conviction.

Descamps, 135 S. Ct. at 2283. Our inquiry is confined to whether Colorado second-

degree assault statute “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). “The meaning

of ‘physical force’ . . . is a question of federal law,” while state law provides the

elements of the crime of conviction. Johnson v. United States (Johnson I), 559 U.S.

133, 138 (2010).

       On appeal, Mr. Ontiveros contends that Colorado second-degree assault does not

require the “use . . . of physical force,” so our analysis is twofold. First “we must identify

the minimum ‘force’ required by Colorado law for the crime of [second-degree assault],”

and second “determine if that force categorically fits the definition of physical force.”

United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). When construing the

minimum culpable conduct required for a conviction, “such conduct only includes that in

                                              4
which there is a ‘realistic probability, not a theoretical possibility’ the state statute would

apply.” Id. State supreme court decisions provide the best indication of a “‘realistic

probability,’ supplemented by decisions from the intermediate-appellate courts.” Id.

   A. Colorado Second-Degree Assault Requires Physical Force

       Mr. Ontiveros first argues that because the elements of Colorado second-degree

assault focus on the result of the conduct (serious bodily injury), not the conduct itself,

the offense does not necessarily require a showing of physical force. He relies upon our

decisions in United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), and United

States v. Rodriguez–Enriquez, 518 F.3d 1191 (10th Cir. 2008). We have previously

questioned Perez-Vargas and Rodriguez-Enriquez, see United States v. Hammons, 862

F.3d 1052, 1056 n.5 (10th Cir. 2017), but we now hold that Perez-Vargas’s logic on this

point is no longer good law in light of Castleman.

       In Perez-Vargas, we considered whether Colorado third-degree assault qualified as

a crime of violence under the guidelines. We held that it did not because Colorado third-

degree assault focuses on the result (bodily injury) and not the means of inflicting injury.

Perez-Vargas, 414 F.3d at 1285. As we explained,

       [W]hile it is likely most third[-]degree assaults will involve the use or
       threatened use of physical force, thus qualifying the crime as a violent
       one under the [g]uidelines, the language of the statute allows for other
       possibilities. Indeed, at oral argument, Perez-Vargas’s counsel provided
       several examples of third[-]degree assault that would not use or threaten
       the use of physical force: recklessly shooting a gun in the air to
       celebrate, intentionally placing a barrier in front of a car causing an
       accident, or intentionally exposing someone to hazardous chemicals.
       One can imagine a number of other hypotheticals.



                                               5
Id. at 1286. We held that “Colorado’s third[-]degree assault statute does not

necessarily include the use or threatened use of ‘physical force’ as required by the

[g]uidelines.” Id. at 1287. We adhered to Perez-Vargas in Rodriguez-Enriquez,

when we “reject[ed] the view that the word physical relates to the effect of the

force.” 518 F.3d at 1194. We held that “the adjective physical must refer to the

mechanism by which the force is imparted.” Id.

      The government argues, and we agree, that Perez-Vargas and Rodriguez-

Enriquez relied on reasoning that is no longer viable in light of Castleman. In

Castleman, the defendant was charged with being in possession of a firearm after

being convicted of a misdemeanor crime of domestic violence. Castleman, 134 S. Ct.

at 1408. During sentencing, the district court found that his prior conviction under

Tennessee law for “having ‘intentionally or knowingly cause[d] bodily injury to’ the

mother of his child” did not constitute a misdemeanor crime of domestic violence as

used in 18 U.S.C. § 922(g)(9) because it did not have “as an element, the use . . . of

physical force.” Id. at 1409. The Supreme Court disagreed and found that “knowing

or intentional causation of bodily injury necessarily involves the use of physical

force.” Id. at 1414 (emphasis added). The Court specifically rejected the contention

that “one can cause bodily injury without the use of physical force—for example, by

deceiving [the victim] into drinking a poisoned beverage, without making contact of

any kind.” Id. (internal quotation marks omitted). In so doing, it rejected our logic

in Perez:



                                           6
        [U]se of force . . . is not the act of sprinkling the poison; it is the act of
        employing poison knowingly as a device to cause physical harm. That
        the harm occurs indirectly, rather than directly (as with a kick or
        punch), does not matter. Under [petitioner’s] logic, after all, one could
        say that pulling the trigger on a gun is not a use of force because it is the
        bullet, not the trigger, that actually strikes the victim.

Id. at 1415 (internal quotation marks and brackets omitted). It concluded that “[i]t is

impossible to cause bodily injury without applying force in the common-law sense.”

Id. (emphasis added).

        Mr. Ontiveros argues that Castleman’s logic is inapplicable because it

concerned common-law battery in the context of a misdemeanor crime of violence.

He distinguishes Perez-Vargas as involving “physical force” in the violent felony

context, something that the Court in Castleman specifically refused to address. Id. at

1413.

        Almost every circuit that has looked at this issue has determined that

Castleman’s logic is applicable to the “physical force” requirement as used in a

felony crime of violence. See United States v. Hill, 832 F.3d 135, 143 (2d Cir. 2016)

(applying Castleman to 18 U.S.C. § 924(c)(3)(A)); United States v. Chapman, 866

F.3d 129, 133 (3d Cir. 2017) (applying Castleman to USSG § 4B1.2); United States

v. Reid, 861 F.3d 523, 529 (4th Cir. 2017) (applying Castleman to USC § 924(e)(1));

United States v. Jennings, 860 F.3d 450, 458–60 (7th Cir. 2017) (same); United

States v. Rice, 813 F.3d 704, 705–06 (8th Cir.) (applying Castleman to USSG §

4B1.2), cert. denied, 137 S. Ct. 59 (2016); Arellano Hernandez v. Lynch, 831 F.3d

1127, 1131 (9th Cir. 2016) (implicitly applying reasoning of Castleman to 18 U.S.C.


                                              7
§ 16(a)), cert. denied sub nom. Hernandez v. Sessions, 137 S. Ct. 2180 (2017);

United States v. Haldemann, 664 F. App’x 820, 822 (11th Cir. 2016) (unpublished)

(applying Castleman to USSG § 4B1.2). But see United States v. Rico-Mejia, 859

F.3d 318, 322–23 (5th Cir. 2017) (rejecting government’s argument that Castleman’s

logic concerning direct and indirect application of force extends to felony crimes of

violence).2

      As the Fourth Circuit explained in Reid:

      To be sure, Castleman did not construe ACCA’s force clause, and it expressly
      reserved the question of whether the causation of “bodily injury,” a term
      defined broadly under Tennessee law, would “necessitate violent force
      under Johnson’s definition of that phrase” in ACCA. 134 S. Ct. at 1414. But
      the Court’s formal reservation does not foreclose application of the relevant
      aspects of its reasoning, which did not rest on any distinction between
      § 922(g)(9) and ACCA’s force clause, § 924(e)(2)(B)(i). Indeed, the Court
      relied significantly on Johnson in rejecting a proffered limitation on the term
      “physical force.” See Castleman, 134 S. Ct. at 1414 (“[A]s we explained
      in Johnson, ‘physical force’ is simply ‘force exerted by and though concrete
      bodies’”); cf. id. at 1416–17 (Scalia, J., concurring in part and concurring in
      the judgment) (“[I]t is impossible to cause bodily injury without using force
      ‘capable of’ producing that result”). Accordingly, by applying the
      combination of Johnson and Castleman, we conclude that ACCA’s phrase “use
      of physical force” includes force applied directly or indirectly.




2
  Mr. Ontiveros’s citations to the First and Sixth Circuits as contrary authority are
unavailing. The First Circuit has yet to rule on this issue, United States v. Edwards,
857 F.3d 420, 426 n.11 (1st Cir. 2017), cert. denied, No. 17-5688, 2017 WL 3613361
(U.S. Oct. 2, 2017). The Sixth Circuit merely stated that Castleman’s holding
concerned whether simple battery constitutes physical force in the misdemeanor
crime of violence context. See United States v. Glover, 681 F. App’x 432, 434 (6th
Cir. 2017), cert. denied, No. 17-5537, 2017 WL 3480464 (U.S. Oct. 2, 2017). While
the amount of physical force needed for a misdemeanor crime of violence may be
less than that needed in the violent felony context, the nature of the physical force
applies in both contexts.
                                           8
Reid, 861 F.3d at 528–29. We agree with the Fourth Circuit and hold that

Castleman’s logic applies to “physical force” in the context of violent felonies. To

the extent that Perez-Vargas holds that indirect force is not an application of

“physical force,” that holding is no longer good law.

      Mr. Ontiveros next argues that even if Castleman applies, Colorado second-

degree assault requires no “use . . . of physical force” because one can be convicted

for a failure to act. Mr. Ontiveros relies principally on People v. Madison, 176 P.3d

793 (Colo. App. 2007), which affirmed a second-degree assault conviction of a son

for neglecting to care for his father. Id. at 798–99. We are not persuaded.

      In Castleman, the Court was concerned with the common-law crime of battery

which can be committed “by simply omission to act where there is a duty to act.” 2

W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003) (treatise favorably

cited by the Court at 134 S. Ct. at 1414–15). Despite this, the Court held that “[i]t is

impossible to cause bodily injury without applying force in the common-law sense.”

Castleman, 134 S. Ct. at 1415 (emphasis added).3 If it is impossible to commit a

battery without applying force, and a battery can be committed by an omission to act,

then second-degree assault must also require physical force.




3
 Although Castleman applied the modified categorical approach, the analysis does
not change because the element of conviction in that case was “intentionally or
knowingly caus[ing] bodily injury to” another, the same as in the current case. See
Castleman, 134 S. Ct. at 1414.
                                            9
       B. Colorado Second-Degree Assault Requires “Violent Force”

       The final part of our analysis is whether the minimum physical force required

for a conviction under Colorado second-degree assault is “violent force.” Johnson I,

559 U.S. at 140. Johnson I determined that in the context of a crime of violence,4

“the phrase ‘physical force’ means violent force — that is, force capable of causing

physical pain or injury to another person.” Id. Mere offensive touching, such as in

common-law battery, does not suffice as “violent force.” Id. at 139–40. Colorado

second-degree assault requires intentional causation of serious bodily harm, easily

meeting the standard for “violent force.”5 See id. at 140.

       Although the government also argues that Colorado second-degree assault is

an enumerated offense under the career-offender enhancement, it is unnecessary to

consider this argument because we affirm on the grounds stated above.

       AFFIRMED.




4
  When determining whether an offense is a crime of violence under § 4B1.2(a)(1),
the court may apply cases analyzing a violent felony under the ACCA. United States
v. Wray, 776 F.3d 1182, 1184–85 (10th Cir. 2015).
5
  Mr. Ontiveros’s reliance on United v. Mason, No. 17-7011, 2017 WL 4479371 (10th
Cir. Oct. 5, 2017), is unavailing. In that case, we held that violent force requires more
than offensive touching. Mr. Ontiveros seems to suggest that because Colorado second-
degree assault requires no force at all, it cannot be a “violent felony.” That skips the first
step of the analysis which is what force, if any, the offense requires. Because we hold
that it requires some force, then it cannot be that no force is required. The level of force
required is certainly more than mere offensive touching.

                                              10
