                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              December 11, 2017
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 16-6344

 ANTHONY KENDALL, also known
 as Cameron Anthony Kendall,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:16-CR-00022-R-1)


Kyle E. Wackenheim, Research and Writing Attorney (William P. Earley,
Assistant Federal Public Defender, on the briefs), Office of the Federal Public
Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, for
Appellant.

William E. Farrior, Assistant United States Attorney (Mark A. Yancey, United
States Attorney, with him on the brief), Office of the United States Attorney,
Oklahoma City, Oklahoma, for Appellee.


Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit
Judges.


TYMKOVICH, Chief Judge.
          Anthony Kendall pleaded guilty to forcibly assaulting a federal officer and

inflicting a bodily injury in violation of 18 U.S.C. § 111(b). Kendall had two

prior felony convictions: a federal conviction for aggravated assault while

carrying a firearm and a conviction for assault on a District of Columbia police

officer in violation of a local provision, D.C. Code 22-405(c).

          At sentencing, the district court held all three of these convictions

supported a career offender sentence enhancement because each constituted a

crime of violence under the United States Sentencing Guidelines (USSG).

Kendall contends the district court erred in so classifying his conviction under 18

U.S.C. § 111(b) in this case and his prior conviction under D.C. Code 22-405(c).

          Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Kendall’s

sentence because all three of his convictions constitute crimes of violence.

                                    I. Background

          The Guidelines classify a defendant as a career offender if his current

conviction constitutes a felony crime of violence and he has two prior convictions

that likewise qualify as crimes of violence. 1 USSG § 4B1.1.




      1
          The provision states in full: “[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” USSG § 4B1.1.

                                            -2-
       This case arises from Kendall’s conviction under 18 U.S.C. § 111(b) for

forcibly assaulting a federal officer and inflicting a bodily injury. The

presentence investigation report revealed that Kendall had two prior convictions,

one for aggravated assault while armed and another for assault on a police officer

in violation of D.C. Code § 22-405(c).

       Section 111 provides in relevant part,

             (a) In general.--Whoever--

             (1) forcibly assaults, resists, opposes, impedes,
             intimidates, or interferes with any person designated in
             section 1114 of this title while engaged in or on account
             of the performance of official duties . . . shall, where the
             acts in violation of this section constitute only simple
             assault, be fined under this title or imprisoned not more
             than one year, or both, and where such acts involve
             physical contact with the victim of that assault or the
             intent to commit another felony, be fined under this title
             or imprisoned not more than 8 years, or both.

             (b) Enhanced penalty.--Whoever, in the commission of
             any acts described in subsection (a), uses a deadly or
             dangerous weapon (including a weapon intended to
             cause death or danger but that fails to do so by reason of
             a defective component) or inflicts bodily injury, shall be
             fined under this title or imprisoned not more than 20
             years, or both.

18 U.S.C. § 111 (emphasis added).

       The D.C. Code provides,

             (b) Whoever without justifiable and excusable cause,
             assaults, resists, opposes, impedes, intimidates, or
             interferes with a law enforcement officer on account of,
             or while that law enforcement officer is engaged in the

                                         -3-
               performance of his or her official duties shall be guilty
               of a misdemeanor and, upon conviction, shall be
               imprisoned not more than 180 days or fined not more
               than $1,000, or both.

               (c) A person who violates subsection (b) of this section
               and causes significant bodily injury to the law
               enforcement officer, or commits a violent act that
               creates a grave risk of causing significant bodily injury
               to the officer, shall be guilty of a felony and, upon
               conviction, shall be imprisoned not more than 10 years
               or fined not more than $10,000, or both.

D.C. Code § 22-405 (2009) (emphasis added). 2

                                     II. Analysis

          Kendall concedes aggravated assault while armed qualifies as a crime of

violence, but argues 18 U.S.C. § 111 and D.C. Code § 22-405 do not constitute

crimes of violence. Specifically, Kendall claims one can violate both statutes

without the use, attempted use, or threatened use of violent physical force—the

degree of force required to commit a crime of violence. Without those two

convictions, he cannot qualify as a career offender. As we explain in turn, both

provisions properly interpreted under controlling Supreme Court precedent

qualify as crimes of violence.




      2
       After Kendall’s conviction, the statute was amended. “Assaults, resists,
impedes, intimidates, or interferes with” was changed to just “assaults.” D.C.
Code 22-405 (2017).

                                           -4-
   A. Background Principles

          Before we turn to the statutes, a brief review of the legal principles

applicable to the career-offender enhancement will be helpful. The Guidelines

define a crime of violence as any federal or state offense punishable by

imprisonment for more than one year that “has as an element the use, attempted

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

§ 4B1.2. The Supreme Court explained that “physical force” means “violent

force—that is, force capable of causing physical pain or injury to another person.”

Johnson v. United States, 559 U.S. 133, 140 (2010).

          To determine if a specific conviction constitutes a crime of violence,

courts always apply the so-called categorical approach. See Mathis v. United

States, 136 S. Ct. 2243, 2248 (2016); United States v. Taylor, 843 F.3d 1215,

1220 (10th Cir. 2016), cert. denied, 843 F.3d 1215 (2017). 3 The categorical

approach focuses solely on the “elements of the statute forming the basis of the

defendant’s conviction”; the specific facts of the defendant’s case are irrelevant.

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). To apply the

categorical approach, we compare the statute of conviction’s elements to the


      3
         Although the issue in this case is whether Kendall qualifies as a career
offender under the Guidelines, we rely on cases under the Armed Career Criminal
Act (ACCA) because the ACCA’s definition of a crime of violence is virtually
identical to the Guidelines’ definition. See United States v. Madrid, 805 F.3d
1204, 1210 (10th Cir. 2015). We therefore “consistently appl[y] the same
analysis” to both frameworks. Id.

                                            -5-
Guidelines’ definition of a crime of violence. United States v. Titties, 852 F.3d

1257, 1268 (10th Cir. 2017). If the “statute sweeps more broadly” than the

Guidelines’ definition of a crime of violence—that is, if someone could be

convicted of violating the statute but not commit a crime of violence—the statute

cannot categorically be considered a crime of violence. Id. at 1266. Put

differently, if someone can violate the statute in many different ways, some of

which meet the definition of a crime of violence and some of which do not, the

statute does not constitute a crime of violence. See id.

       To apply the categorical approach to a statute, then, we must first identify

the statute’s “elements.” The definition of an element is straightforward:

elements are the “constituent parts of a crime’s legal definition . . . .” Mathis,

136 S. Ct. at 2248 (quoting Black’s Law Dictionary (10th ed. 2014)). In other

words, elements are what “the jury must find beyond a reasonable doubt to

convict the defendant” at trial and “what the defendant necessarily admits when

he pleads guilty.” Id.

       But determining a statute’s elements can sometimes prove tricky for two

related reasons. First, not everything in a statute is an “element.” Some statutes,

for instance, list examples of different ways one could violate the statute. Id. at

2253. Thus, a statute might require the “use of a ‘deadly weapon’ as an element

of a crime and further provide[] that the use of a ‘knife, gun, bat, or similar

weapon’ would all qualify” as a deadly weapon. Id. at 2249 (quoting Descamps,

                                          -6-
133 S. Ct. at 2289). These examples are means, not elements, because “that kind

of list merely specifies diverse means of satisfying a single element of a single

crime . . . .” Id. Under this example, a jury could convict under the statute “even

if some jurors ‘conclude[d] that the defendant used the knife’ while others

‘conclude[d] he used a gun,’ so long as all agreed that the defendant used a

‘deadly weapon.’” Id. (quoting Descamps, 133. S. Ct. at 2288).

       Mathis offers three ways to distinguish elements and means. First, “if the

statutory alternatives carry different punishments . . . [the alternatives] must be

elements.” Id. at 2256. But if a list within a statute “is drafted to offer

illustrative examples,” the examples are means. Id. Second, state-court decisions

may answer the question for state statutes. Id. Third, courts can look to the

indictment and the jury instructions; if either includes the statute’s alternative

terms, this “is as clear an indication as any that each alternative is only a possible

means of commission, not an element.” See id.

       In addition to the elements/means complication, some statutes are

divisible—that is, they define more than one crime. It is not enough, then, to just

determine whether items listed in a statute are elements or means. We must also

determine whether the listed elements define one crime or multiple crimes.

       Applying the categorical approach to divisible statutes presents a problem.

Because divisible statutes define multiple crimes, just looking at a statute’s

elements—as the categorical approach requires—does not tell us “which version

                                          -7-
of the offense [the defendant] was convicted of.” Descamps, 133 S. Ct. at 2284.

We therefore have no way of knowing which set of elements to use when

applying the categorical approach.

        The modified categorical approach solves this problem. Under that

approach, to determine which crime the defendant, in fact, committed—and in

turn, which set of elements to use when employing the categorical approach—we

can “consult record documents from the defendant’s prior case[,]” such as the

indictment, “for the limited purpose of identifying which of the statute’s

alternative elements formed the basis of the prior conviction.” Titties, 852 F.3d at

1266. But critically, we “may use the modified approach only to determine which

alternative element in a divisible statute formed the basis of the defendant’s

conviction.” Descamps, 133 S. Ct. at 2293 (emphasis added). After that analysis

is done, we once again close our eyes to the actual facts underlying the

defendant’s conviction and apply the categorical approach.

   B.   18 U.S.C. § 111 is a Crime of Violence

        Applying these principles to Kendall’s conviction under 18 U.S.C. § 111,

we conclude the statute is divisible as a whole. Subsection 111(a), however, is

indivisible, and we assume without deciding § 111(b) is also indivisible. Then,

we apply the modified categorical approach and determine Kendall violated §

111(b). Finally, under the categorical approach, we hold Kendall’s felony §

111(b) conviction constitutes a crime of violence.

                                         -8-
      1. Divisibility and Elements versus Means

         Section 111 as a whole is divisible. Kendall summarily asserts the statute

as a whole is not divisible because “it defines only a single crime with a single set

of elements . . . .” Aplt. Br. at 10. This is plainly wrong. When “statutory

alternatives carry different punishments . . . they must be elements.” Mathis, 136

S. Ct. at 2256. And as we explained in United States v. Hathaway, § 111

“contains three separate offenses, each element of which must be charged in the

indictment and proven to the jury beyond a reasonable doubt.” 318 F.3d 1001,

1007 (10th Cir. 2003) (emphasis added). Section 111 is therefore divisible as a

whole.

         Subsections (a) and (b), however, are not divisible. Subsection 111(a) is

indivisible because the list in § 111(a)—forcibly assaults, resists, opposes,

impedes, intimidates, or interferes with—contains means, not elements. 18

U.S.C. § 111(a). The Tenth Circuit’s Criminal Pattern Jury Instructions for

violating § 111(a) state the defendant must have “forcibly [assaulted] [resisted]

[opposed] [impeded] [intimidated] or [interfered with] [the person described in

the indictment].” § 2.09 at 82 (2011). And when jury instructions reiterate all

the terms of a statute, this is “as clear an indication as any” the terms are just

means of committing one element of the crime. Mathis, 136 S. Ct. at 2257.

         We assume without deciding § 111(b) is indivisible because the

government conceded this at oral argument. Oral Argument at 24:31 (“111(b)

                                          -9-
adds the element of inflicting bodily injury or . . . using a deadly weapon, and we

will concede for purposes of this case that those are means, rather than

elements.”).

          Because § 111 is divisible as a whole but subsections (a) and (b) are not

divisible, we must apply the modified categorical approach to determine which

§ 111 crime Kendall committed. The indictment charges Kendall with

committing a § 111(b) felony. 4

      2. Applying the Categorical Approach

          Now that we have established Kendall pleaded guilty to violating § 111(b),

we must cast aside the actual facts of Kendall’s conviction and apply the

categorical approach to determine whether § 111(b) is a crime of violence. We do

not write on a blank slate. Four circuits have held a violation of § 111(b)

constitutes a crime of violence. See United States v. Taylor, 848 F.3d 476,

491–95 (1st Cir. 2017); United States v. Rafidi, 829 F.3d 437, 446 (6th Cir.

2016), cert. denied, 137 S. Ct. 2147; United States v. Hernandez-Hernandez, 817

F.3d 207, 214–17 (5th Cir. 2016); United States v. Juvenile Female, 566 F.3d

943, 947–48 (9th Cir. 2009). We find these opinions persuasive.

      4
         More specifically, the indictment alleges Kendall “did knowingly and
feloniously assault, resist, oppose, impede, intimidate, and interfere with J.W., a
Senior Correctional Officer with the Federal Bureau of Prisons at the Federal
Transfer Center, while J.W. was engaged in the performance of his official duties,
and did thereby inflict bodily injury upon J.W. by striking J.W. in the face. All in
violation of Title 18, United States Code, Section 111(a)(1) the penalty for which
is found at Title 18, United States Code, Section 111(b).” R., Vol. I at 6.

                                          -10-
       Although one can violate § 111 in a number of ways—by assaulting,

resisting, opposing, impeding, intimidating, or interfering with a designated

official—every conviction under § 111 requires an assault. See United States v.

Wolfname, 835 F.3d 1214, 1218 (10th Cir. 2016). To determine if every violation

of § 111(b) is a crime of violence, then, we need only determine whether both an

assault that causes bodily injury and an assault with a deadly weapon involve the

use, threatened use, or attempted use of violent physical force. They both do. As

the Fifth Circuit explained, a “conviction under § 111(b) necessarily require[s] a

finding [the defendant] intentionally used, attempted to use, or threatened to use

physical force against the person of another . . . .” Hernandez-Hernandez, 817

F.3d at 217. We therefore conclude 18 U.S.C. § 111(b) constitutes a crime of

violence.

             a. Assault that Causes Bodily Injury

       An assault that causes bodily injury by definition involves the use of

physical force. The Supreme Court in Johnson defined physical force as “violent

force—that is, force capable of causing physical pain or injury to another

person.” 559 U.S. at 140 (emphasis added). The Tenth Circuit’s Pattern Jury

Instructions define bodily injury as “an injury that is painful and obvious, or is of

a type for which medical attention ordinarily would be sought.” § 2.09 at 82

(2011). Thus, an assault under § 111(b) that causes a painful bodily injury falls

squarely within Johnson’s definition of violent physical force.

                                        -11-
       Kendall makes two arguments to avoid this conclusion. First, he insists

the Supreme Court in United States v. Castleman “declined to equate ‘bodily

injury’ with ‘violent physical force.’” Aplt. Br. at 14. But Castleman expressly

did “not decide” whether causing a bodily injury under Tennessee law always

involves the use of “violent force, under Johnson’s definition.” See United States

v. Castleman, 134 S. Ct. 1405, 1414 (2014).

       More to the point, Kendall never explains how someone could inflict a

bodily injury without using violent force. Kendall points to our decision in

United States v. Ama—in which we held someone can violate § 111(a) without

using violent force—as proof someone can likewise violate § 111(b) without

employing violent force. 684 F. App’x 736, 741 (10th Cir. 2017) (unpublished).

But more force is required to violate § 111(b), as Kendall did, than to violate

§ 111(a), as the defendant in Ama did. Indeed, as the Fifth Circuit recently

explained, “[t]he fact that the bodily injury element is included in § 111(b) but

not in (a) indicates that § 111(b) requires a greater baseline showing of

force—enough to cause bodily injury—than that required under § 111(a).”

Hernandez-Hernandez, 817 F.3d at 215. And force significant enough to cause a

painful bodily injury matches Johnson’s definition of violent physical force.

       Second, Kendall cites United States v. Perez-Vargas, a pre-Johnson

decision in which we held Colorado’s third-degree assault statute—which

prohibited knowingly or recklessly causing a bodily injury—did not qualify as a

                                         -12-
crime of violence. 414 F.3d 1282, 1285 (10th Cir. 2005). In Perez-Vargas, we

explained how the Guidelines focus on the means by which an injury occurs

(through the use of physical force) while the third-degree assault statute, by

contrast, focused on the result of a defendant’s conduct—bodily injury. Id. at

1285–86. We therefore concluded that indirectly causing a bodily injury—by

placing a barrier in front of a car, for example, rather than punching someone in

the face—does not involve the use of physical force. Id. Thus, Kendall argues an

assault causing a bodily injury under § 111(b) does not use violent physical force

as defined by Johnson because one can violate the statute by indirectly causing a

bodily injury.

       Our holding in Perez-Vargas, however, has been abrogated by the

Supreme Court. In Castleman, the Court rejected the distinction set forth in

Perez-Vargas between direct and indirect injury. See 134 S. Ct. at 1414–16. The

Court clarified that “the knowing or intentional application of force is a ‘use’ of

force. . . . That the harm occurs indirectly, rather than directly . . . does not

matter.” Id. at 1415. We recently concluded in United States v. Ontiveros that

“[t]o the extent that Perez-Vargas holds that indirect force is not an application of

physical force” in the crimes of violence context, “that holding is no longer good

law.” No. 16-1362, 2017 WL 5147257, at *4 (10th Cir. Nov. 7, 2017).




                                           -13-
             b. Assault with a Deadly or Dangerous Weapon

       Finally, our recent decision in United States v. Taylor demonstrates that an

assault with a deadly or dangerous weapon qualifies as a crime of violence. 843

F.3d 1215, 1220 (10th Cir. 2016). In Taylor, the defendant violated an Oklahoma

statute that provided: “[e]very person who, with intent to do bodily harm . . .

commits any assault . . . upon the person of another with any sharp or dangerous

weapon . . . is guilty of a felony.” Okla. Stat. tit. 21, § 645 (1991). We held “the

additional element of a deadly or dangerous weapon makes an apprehension-

causing assault a crime of violence, even if the simple assault would not be.”

Taylor, 843 F.3d at 1224 (citing United States v. Mitchell, 653 F. App’x 639, 645

(10th Cir. 2016) (unpublished)). Here, as in Taylor, one can violate § 111(b) by

committing an assault with a deadly weapon. Thus, violating § 111(b) in this

manner involves the use of violent physical force.

       And, as the government correctly points out, this conclusion is consistent

with our recent conclusion in Titties. 825 F.3d at 1257. In Titties, the statute

prohibited pointing a gun at someone for the purpose of discharging the weapon,

injuring someone, or whimsy, humor or prank. Id. at 1262 n.2. We held the

statute did not qualify as a crime of violence because pointing a gun at someone

for the purpose of humor or prank is non-violent. Id. at 1273–75. But unlike the

statute in Titties, the Supreme Court long ago explained that violating § 111

requires “an intent to assault.” United States v. Feola, 420 U.S. 671, 684 (1974).

                                         -14-
An intent to assault is incompatible with jokes or pranks, so Titties is not on

point.

   C. D.C. Code § 22-405 is a Crime of Violence

         Finally, turning to D.C. Code § 22-405, we first conclude the statute is

divisible as a whole, but subsections (b) and (c) are indivisible. Then, we apply

the modified categorical approach and determine Kendall was convicted of

violating § 22-405(c). Applying the categorical approach, we conclude § 22-

405(c) constitutes a crime of violence.

         1. Divisibility and Elements versus Means

         Kendall claims D.C. Code § 22-405 is not divisible as a whole. But as we

explained above, when “statutory alternatives carry different punishments . . .

they must be elements.” Mathis, 136 S. Ct. at 2256. D.C. Code § 22-405 is thus

divisible as a whole.

         Subsections (b) and (c), however, are each indivisible. That is, both

sections contain various means of committing a single crime—either a subsection

(b) or subsection (c) violation. When the indictment “reiterat[es] all the terms of”

the statute, this is “as clear an indication as any” the listed items are only possible

means of violating the statute. Mathis, 136 S. Ct. at 2257. And the indictment

charging Kendall with violating D.C. Code § 22-405 does just that. On § 22-

405(b), the indictment alleges Kendall “did assault, resist, oppose, impede,

intimidate, and interfere with” a law enforcement officer and “caused significant

                                          -15-
bodily injury to [the officer] or committed a violent act that created a grave risk

of bodily injury to [the officer].” App. at 10. And on § 22-405(c), the indictment

states Kendall “caused significant bodily injury . . . or committed a violent act

that created a grave risk of serious bodily injury . . . .” Id. (emphasis added).

Subsection (b) and (c) are therefore both indivisible.

       Because D.C. Code § 22-405 is divisible as a whole, we must first apply

the modified categorical approach to determine which crime Kendall committed.

This is easily done since the indictment charges Kendall with violating D.C. Code

§ 22-405(c).

          2. Applying the Categorical Approach

       Applying the categorical approach, § 22-405(c) can be violated in two

ways: one must, without just cause, assault, resist, oppose, impede, intimidate, or

interfere with a law enforcement officer performing his duties and in doing so

either (1) cause significant bodily injury to the officer, or (2) commit a violent act

that creates a grave risk of causing significant bodily injury to the officer.

Violating the statute in either manner will always involve the use, threatened use,

or attempted use of violent physical force. We therefore conclude D.C. Code

§ 22-405(c) constitutes a crime of violence.

               a. Causing a Significant Bodily Injury
       The question of whether violating § 22-405(c) by causing a bodily injury

always involves the use of force begins and ends with Johnson’s definition of


                                         -16-
violent physical force: force “capable of causing physical injury to another

person.” 559 U.S. at 140. A conviction for violating § 22-405(c) by causing

bodily injury thus perfectly matches Johnson’s definition.

       Kendall once again hangs his entire case on Perez-Vargas and the fact that

one can violate D.C. Code § 22-405(c) by causing a bodily injury indirectly. But

as we already explained, Perez-Vergas was abrogated by the Supreme Court.

                b. Committing a Violent Act
       Committing a violent act that creates a grave risk of causing significant

bodily injury will always involve the use of violent physical force. The question

turns on how we define a violent act. And the dictionary definition of “violent”

demonstrates a violent act will always involve the use of physical force. Black’s

Law Dictionary offers three definitions of violent: (1) of, relating to, or

characterized by strong physical force; (2) resulting from extreme or intense

force; (3) vehemently or passionately threatening. Violent, Black’s Law

Dictionary (10th ed. 2014). All three of these definitions fall squarely with USSG

§ 4B1.2’s definition of a crime of violence—the use, attempted use, or threatened

use of violent physical force. Johnson, 559 U.S. at 140. The plain meaning of

“violent act” thus illustrates how committing 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.

       In sum, D.C. Code § 22-405(c) constitutes a crime of violence.


                                         -17-
                                III. Conclusion

       The district court properly found Kendall’s convictions under 18 U.S.C.

§ 111(b) and D.C. Code § 22-405(c) qualify as crimes of violence. Because

Kendall concedes his other prior conviction constitutes a crime of violence, the

district court correctly classified him as a career offender under the Guidelines.


       We accordingly AFFIRM.




                                        -18-
