                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                     UNITED STATES COURT OF APPEALS                        December 21, 2018

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

 UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

 v.                                                          No. 16-4165

 ANTHONY WAYNE BETTCHER,

       Defendant - Appellee.
                      _________________________________

                    Appeal from the United States District Court
                              for the District of Utah
                         (D.C. No. 2:15-CR-00623-DB-1)
                      _________________________________

William Glaser, Attorney, Criminal Division, Appellate Section, Department of Justice,
Washington, D.C. (John W. Huber, United States Attorney, and Ryan D. Tenney,
Assistant United States Attorney, Salt Lake City, Utah, on the briefs), for Plaintiff-
Appellant.

Benjamin C. McMurray, Assistant Federal Public Defender (Kathryn N. Nester, Federal
Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with him on
the brief), Salt Lake City, Utah, for Defendant-Appellee.
                          _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      We must decide whether Utah’s second-degree aggravated-assault offense

categorically qualifies as a “crime of violence” under the elements clause provided in
the federal sentencing guidelines.1 See U.S. Sentencing Guidelines Manual

§ 4B1.2(a)(1) (U.S. Sentencing Comm’n 2015). Because we hold that the Utah

offense does qualify, we reverse the district court’s contrary decision and remand for

resentencing.

                                  BACKGROUND

      In May 2016, Anthony Bettcher pleaded guilty to possessing a firearm as a

felon. See 18 U.S.C. § 922(g)(1). Afterward, a probation officer reviewed Bettcher’s

past, including his criminal history, and prepared a Presentence Investigation Report

(PSR).

      The PSR informed the district court that in 2013, the State of Utah had charged

Bettcher with second-degree aggravated assault. At the time,2 Utah law defined

simple assault as follows:


      1
        On appeal, Bettcher has abandoned his district-court argument that Utah’s
second-degree aggravated assault is not categorically a crime of violence because it
can include convictions for indirect uses of physical force, such as poisoning. Though
this argument once had force, it no longer does. See United States v. Perez-Vargas,
414 F.3d 1282, 1286–87 (10th Cir. 2005), overruled by United States v. Ontiveros,
875 F.3d 533, 536 (10th Cir. 2017); see also United States v. Castleman, 572 U.S.
157, 168–71 (2014). We have no reason to address this argument further, despite the
government’s request that we do so.
      2
         The Utah legislature has since amended its assault statutes. See S.B. 115, 61st
Leg., Gen. Sess., 2015 Utah Laws 430, §§ 76-5-102, 76-5-103 (amending Utah’s
assault and aggravated-assault statutes, in part to remove the latter’s cross-reference
to the former); H.B. 17, 62d Leg., Gen. Sess., 2017 Utah Laws 388,
§ 76-5-103(1)(b)(ii)–(iii), -103(2) (amending Utah’s aggravated-assault statute to
specifically cover “any act that impedes the breathing or the circulation” of the
victim); H.B. 433, 62d Leg., Gen. Sess., 2017 Utah Laws 454, § 76-5-103(2)(c)
(adding first-degree aggravated assault for targeting a law-enforcement officer).

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

          (b) a threat, accompanied by a show of immediate force or violence, to
              do bodily injury to another; or

          (c) an act, committed with unlawful force or violence, that causes bodily
              injury to another or creates a substantial risk of bodily injury to
              another.

Utah Code Ann. § 76-5-102(1) (LexisNexis 2012).3 To convict Bettcher of second-

degree aggravated assault, prosecutors had to prove the simple assault, plus two

additional elements: (1) that he used either “(a) a dangerous weapon as defined in

Section 76-5-601[] or (b) other means or force likely to produce death or serious

bodily injury,” id. § 76-5-103(1), and (2) that his conduct “result[ed] in serious

bodily injury,” id. § 76-5-103(2)(b).

      In the PSR, the probation officer recommended treating this earlier conviction

as a crime of violence, which if adopted would enhance Bettcher’s base offense

level.4 See U.S.S.G §§ 2K2.1(a)(4)(A), 4B1.2(a)(1) (2015). At his sentencing



      3
        The criminal information charges Bettcher with violating subsection (c).
Bettcher later pleaded guilty to this offense and, in his written plea statement,
admitted that on August 5, 2012, in Salt Lake County, he had held a throwing star in
his hand and struck another man in the neck, causing serious bodily injury. But as we
explain below, these facts are irrelevant to our analysis—applying a categorical
approach, we focus solely on the elements of the underlying crime. See United States
v. Kendall, 876 F.3d 1264, 1267 (10th Cir. 2017) (citing Mathis v. United States, 136
S. Ct. 2243, 2248 (2016); and quoting Descamps v. United States, 570 U.S. 254, 257
(2013)).
      4
         The resulting six-level enhancement would have increased Bettcher’s
advisory-guideline range from 30–37 months to 57–71 months. Compare U.S.S.G.
§ 2K2.1(a)(4)(A) (setting a base offense level of 20 if the current offense followed an
earlier crime-of-violence conviction), with id. § 2K2.1(a)(6)(A) (setting a base
                                            3
hearing, Bettcher objected to the crime-of-violence enhancement. He argued that

crimes capable of being committed recklessly don’t categorically have as an element

the use of physical force against another person, so they can’t be crimes of violence

under U.S.S.G. § 4B1.2(a)(1). And because the Utah legislature didn’t specify a mens

rea (or provide strict liability) for second-degree aggravated assault, “intent,

knowledge, or recklessness . . . suffice to establish criminal responsibility.” Utah

Code Ann. § 76-2-102 (LexisNexis 2012); see State v. McElhaney, 579 P.2d 328,

328–29 (Utah 1978) (applying § 76-2-102’s gap-filler mens rea to an earlier version

of the aggravated-assault statute). Thus, everyone at the hearing agreed, Utah permits

second-degree aggravated-assault convictions based on reckless conduct.5

      The government recognized that this circuit’s precedents favored Bettcher’s

position that reckless crimes categorically aren’t crimes of violence under the

elements clause. But the government argued that our court’s precedents had relied on

a mistaken interpretation of Leocal v. Ashcroft, 543 U.S. 1 (2004)—as recently



offense level of 14 if the defendant was prohibited from possessing a firearm when
he committed the current offense).
      5
        Accordingly, we do not consider whether the element of serious bodily injury
caused by the “use” of a dangerous weapon or other means or force likely to produce
death or serious bodily injury, Utah Code Ann. § 76-5-103(1) (LexisNexis 2012),
automatically satisfies U.S.S.G. § 4B1.2(a)(1)’s “use” of physical force against the
person of another. Cf. United States v. Brown, 892 F.3d 385, 402–03 (D.C. Cir. 2018)
(including defendant’s earlier District of Columbia Code violation for attempted
assault with a deadly weapon as a crime of violence under U.S.S.G. § 4B1.2(a)(1)’s
elements clause because that offense required proof of “the use of a dangerous
weapon in committing the assault” (quoting Spencer v. United States, 991 A.2d 1185,
1192 (D.C. 2010)).

                                            4
revealed in Voisine v. United States, 136 S. Ct. 2272 (2016). In the end, the district

court agreed with Bettcher that a reckless assault isn’t a crime of violence under

U.S.S.G. § 4B1.2(a)(1), and so it declined to apply the crime-of-violence

enhancement.

      The government appealed. It asks us to examine the viability of our earlier

precedents and their foundations.

                                     DISCUSSION

      We review de novo whether the elements of an earlier offense establish a

categorical crime of violence. United States v. Williams, 893 F.3d 696, 699 (10th Cir.

2018). We apply the categorical approach, examining the elements of the Utah statute

to see whether they meet the requirements of U.S.S.G. § 4B1.2(a)(1)’s crime-of-

violence definition. Kendall, 876 F.3d at 1267 (citing United States v. Titties, 852

F.3d 1257, 1268 (10th Cir. 2017)).

      In Leocal v. Ashcroft, the Court first addressed what level of mens rea must

attend the “use” of physical force against another person to qualify as a crime of

violence. 543 U.S. at 7–9. In that case, the government removed from the United

States a lawful permanent resident, Josue Leocal, after a Florida jury found him

guilty of driving under the influence resulting in bodily injury. Id. at 4–6. At issue in

Leocal was whether this state offense qualified as an aggravated felony under 8

U.S.C. § 1101(a)(43)(F), which in turn depended on whether the offense qualified as




                                            5
a “crime of violence” under 18 U.S.C. § 16. Id. at 4–5. Section 16(a) has an elements

clause nearly identical to U.S.S.G. § 4B1.2(a)(1)’s.6 See id. at 4–5.

      In examining the meaning of “use” of physical force against another under 18

U.S.C. § 16(a)’s elements clause,7 the Leocal Court noted that though the Florida

statute “requires proof of causation of injury, [it] does not require proof of any

particular mental state.” Id. at 7–8 (citing State v. Hubbard, 751 So. 2d 552, 562–64

(Fla. 1999)). Employing its earlier rule that “use” requires “active employment,” the

Court rejected any reading allowing even the “elastic” word “use” to include

accidental or negligent conduct. Id. at 9 (citing Bailey v. United States, 516 U.S. 137,

145 (1995), superseded by statute on other grounds, 18 U.S.C. § 924(c)(1)(A), as

recognized in United States v. O’Brien, 560 U.S. 218, 232–33 (2010)). Lacking a

mens rea requirement for causing bodily injury, the Florida offense reached even

negligent uses of force against another person, disabling it from being a crime of

violence under 18 U.S.C. § 16. Id. at 11–12. But the Court declined to address—as


      6
         Section 16(b), like U.S.S.G. § 4B1.2(a)(2) (2015), also contains a residual
clause. But the government has not argued that Bettcher’s Utah conviction qualifies
as a crime of violence under the residual clause then found at U.S.S.G. § 4B1.2(a)(2).
See U.S.S.G. § 4B1.2(a)(2) (2015) (“The term ‘crime of violence’ means any
offense . . . [that] involves conduct that presents a serious potential risk of physical
injury to another.”).
      7
        With one small difference—some crime-of-violence provisions require that
the use of physical force be against the person or property of another—the otherwise-
identical elements clause applies across a broad swath of federal statutes and
sentencing guidelines. See, e.g., 18 U.S.C. §§ 924(c)(3)(A), 924(e)(2)(B)(i); U.S.S.G.
§§ 2L1.2, cmt. n.2 (immigration offenses); 4B1.2(a)(1) (general definition
incorporated in multiple guidelines).

                                            6
unpresented—“whether a state or federal offense that requires proof of the reckless

use of force against a person or property of another qualifies as a crime of violence

under 18 U.S.C. § 16.” Id. at 13.

       Twelve years later, in Voisine v. United States, the Court faced that question in

deciding whether Maine reckless domestic assaults categorically included the use of

physical force as defined within the meaning of “misdemeanor crime of domestic

violence” in 18 U.S.C. §§ 921(a)(33) and 922(g)(9). 136 S. Ct. at 2277–80. In

Voisine, the Court considered two steps implicit in Leocal: (1) was the defendant’s

conduct volitional, not “merely accidental”? and (2) did the level of mens rea

required by the state crime involve a “use” of physical force against another person?8

Id. at 2278–79 (quoting Leocal, 543 U.S. at 9).

       The Court rejected Mr. Voisine’s argument that Leocal “marks a dividing line

between reckless and knowing conduct.” Id. at 2279. Commenting on what mens rea

the word “use” requires, the Court said that “use” “does not demand that the person

applying force have the purpose [i.e., intent] or practical certainty [i.e., knowledge]

that [the use of force] will cause harm, as compared with the understanding that it is

substantially likely to do so [i.e., reckless].” Id. Significantly, in broad language in a

section not particular to misdemeanor crimes of domestic violence, the Voisine Court

pointedly addressed the issue Leocal reserved—whether the Court would group



       8
       Though Mr. Leocal voluntarily drove his car while intoxicated, the Florida
crime had no mens rea element tied to his causing bodily injuries.

                                             7
reckless harm (voluntary acts “undertaken with awareness of their substantial risk of

causing injury”) with intentional and knowing harm or, instead, with negligent and

accidental harm. Id. at 2278–80. The Court chose the former, for a simple reason:

“The harm such [reckless] conduct causes is the result of a deliberate decision to

endanger another—no more an ‘accident’ than if the ‘substantial risk’ were

‘practically certain.’” Id. at 2279.

       Voisine’s application and understanding of Leocal overrides our contrary

precedents classifying reckless harm with negligent or accidental harm. In our

seminal case, United States v. Zuniga-Soto, we read Leocal to categorically exclude

crimes capable of being committed recklessly from meeting the use-of-physical-force

requirement. 527 F.3d 1110, 1113, 1124 (10th Cir. 2008) (considering misdemeanor

crimes of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and cmt. n.1(B)(iii) (2006)). As

did the other circuit courts after Leocal, we grouped reckless conduct with accidental and

negligent conduct. Id. at 1124 (“In light of the persuasive reasoning of our sister circuits,

we are convinced that recklessness falls into the category of accidental conduct that the

Leocal Court described as failing to satisfy the use of physical force requirement under

either of § 16’s definitions of ‘crime of violence.’” (citing Leocal, 543 U.S. at 9)).

       Following that same approach, we held in United States v. Duran that crimes

permitting a mens rea of recklessness could not categorically be crimes of violence under

U.S.S.G. § 4B1.2(a). 696 F.3d 1089, 1095 (10th Cir. 2012). Until Voisine, Duran would

have bound us to rule now in Bettcher’s favor. But Duran must now yield to Voisine’s

reading of Leocal. Indeed, under other sentencing provisions, we have since applied

                                              8
Voisine to include as “crimes of violence” crimes capable of being committed with a

mens rea of recklessness.9 See, e.g., United States v. Mann, 899 F.3d 898, 902–08 (10th

Cir. 2018) (holding post-Voisine that, though 18 U.S.C. § 113(a)(6) includes reckless

assaults, convictions for that offense are categorically crimes of violence under the

elements clause of 18 U.S.C. § 924(c)(3)(A)); Pam, 867 F.3d at 1206–11 (holding post-

Voisine that, though New Mexico’s felony offense of shooting at or from a motor vehicle

includes reckless violations, convictions for that offense are categorically violent felonies

under the Armed Career Criminal Act’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i)).10

       Bettcher would have us confine Voisine to the misdemeanor-crime-of-domestic-

violence context. By his account, “the fact that Voisine construed the word ‘use’ to

include reckless conduct in the context of § 921 has no bearing on how the elements

clause[s] of § 16, the ACCA, and § 4B1.2 should be interpreted.” Br. for the Appellee at




       9
         Circuits have also done so with other sentencing provisions. See, e.g., United
States v. Mendez-Henriquez, 847 F.3d 214, 217, 221 (5th Cir. 2017) (concluding that
a California conviction for maliciously and willfully discharging a firearm at an
occupied motor vehicle fit U.S.S.G. § 2L1.2’s elements clause, after concluding that
“our court’s interpretation of § 4B1.2 informs our interpretation of § 2L1.2, given the
two Guidelines’ identical language and closely aligned purposes”); United States v.
Fogg, 836 F.3d 951, 953, 956 (8th Cir. 2016) (concluding that a Minnesota
conviction for drive-by shooting was a violent felony under 18 U.S.C. § 924(e), and
relying on Voisine to reach reckless discharge of a firearm “because the force clauses
in 18 U.S.C. § 921(a)(33)(A)(ii) and the ACCA both define qualifying predicate
offenses as those involving the ‘use . . . of physical force’ against another” (alteration
in original)).
       10
         Pam is particularly instructive given the definitional kinship between crimes
of violence under U.S.S.G. § 4B1.2(a)(1), (2) and violent felonies under 18 U.S.C.
§ 924(e)(2)(B)(i), (ii).

                                              9
18. Yet as noted in the preceding paragraph, our court has already extended Voisine’s

recklessness reasoning outside of the 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)

(misdemeanor crimes of domestic violence) context. We do so again here. None of

Bettcher’s arguments for excluding reckless conduct carry more force when applied to

U.S.S.G. § 4B1.2(a)(1)’s elements clause than similar arguments did when applied to the

elements clauses in play in earlier cases. As did those cited cases, we recognize that

Voisine reserved deciding whether recklessness sufficed to establish the “use” of force in

any other elements clause, including 18 U.S.C. § 16(a). Voisine, 136 S. Ct. at 2280 n.4.

But Voisine’s reading of Leocal defeats the reach we attributed to it in the Zuniga-Soto

line of cases. So we now conform our reading of Leocal to that announced in Voisine,

which puts us on a different course.11

       Bettcher also argues that this panel has no authority to overrule its own precedent.

We acknowledge that unlike the panels in Pam and Mann, which were subject to no


       11
          Post-Voisine, other circuits have concluded that U.S.S.G. § 4B1.2(a)(1) does
not categorically exclude crimes capable of being committed recklessly. See, e.g.,
United States v. Ramey, 880 F.3d 447, 448–49 (8th Cir. 2018) (applying the guideline
to the Missouri crime of recklessly causing physical injury to another by discharging a
firearm); United States v. Verwiebe, 874 F.3d 258, 262, 264 (6th Cir. 2017) (applying it
to 18 U.S.C. § 113(a)(6), and saying that an earlier Sixth Circuit case excluding crimes
with a recklessness mens rea “simply does not hold water after Voisine” and declaring
that “Voisine’s analysis applies with equal force to the Guidelines, which define crimes of
violence nearly identically to § 921(a)(33)(A)(ii): any felony that ‘has as an element the
use, attempted use, or threatened use of physical force.’” (quoting U.S.S.G.
§ 4B1.2(a)(1))); United States v. Howell, 838 F.3d 489, 490–91, 499–501 (5th Cir. 2016)
(applying it to the Texas crime of third-degree assault with an element of recklessly
causing bodily injury). But see United States v. Schneider, 905 F.3d 1088, 1091–92 (8th
Cir. 2018) (citing circuit precedent in declining to apply U.S.S.G. § 4B1.2(a)(1) to a
North Dakota aggravated-assault statute extending to reckless driving).

                                            10
governing precedent, our position on U.S.S.G. § 4B1.2(a) differs from Duran’s. See

Duran, 696 F.3d at 1095. And we acknowledge that a three-judge panel can’t “overturn

the decision of another panel of this court.” United States v. Meyers, 200 F.3d 715, 720

(10th Cir. 2000). “Absent en banc reconsideration,” earlier panels’ decisions bind us

unless “the Supreme Court issues an intervening decision that is ‘contrary’ to or

‘invalidates our previous analysis.’” United States v. Brooks, 751 F.3d 1204, 1209 (10th

Cir. 2014) (first quoting Meyers, 200 F.3d at 720; and then quoting United States v.

Shipp, 589 F.3d 1084, 1090 n.3 (10th Cir. 2009)). Yet as mentioned, Duran’s foundation

rested on our mistaken reading of Leocal, a reading at odds with Voisine. After all, Duran

relied on Zuniga-Soto, and Voisine proved Zuniga-Soto’s interpretation of Leocal wrong.

Compare Duran, 696 F.3d at 1093 (citing Zuniga-Soto, 527 F.3d at 1117), with Voisine,

136 S. Ct. at 2279–80 (citing Leocal, 543 U.S. at 9, 13). Though tracking other circuit

courts, Zuniga-Soto erred in being “convinced that recklessness falls into the category of

accidental conduct that the Leocal Court described as failing to satisfy the use of physical

force requirement under either of § 16’s definitions of ‘crime of violence.’” 527 F.3d at

1124.

        And Pam itself eroded Duran. There, we applied Voisine to U.S.S.G. § 4B1.2(a)’s

fraternal twin in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). Pam, 867

F.3d at 1208. Because the two provisions have historically mirrored each other, we see no

sense in including reckless crimes in 18 U.S.C. § 924(e)(2)(B) but not U.S.S.G.

§ 4B1.2(a). See Ramey, 880 F.3d at 449 (“We see no reason why ‘use’ of force under the

guidelines would mean something different from ‘use’ of force under the ACCA.”).

                                            11
       Moreover, our approach is consistent with that taken in United States v. Ontiveros,

875 F.3d 533, 538 (10th Cir. 2017). In Ontiveros, we held that our previous decisions in

Perez-Vargas, 414 F.3d at 1282, and United States v. Rodriguez-Enriquez, 518 F.3d 1191

(10th Cir. 2008), “relied on reasoning that is no longer viable in light of” the Court’s

decision in Castleman, 572 U.S. at 157. Ontiveros, 875 F.3d at 536. The Ontiveros panel

overruled these cases, which had held that statutes criminalizing the result of conduct

(e.g., bodily injury) rather than the conduct itself (e.g., the means of inflicting the injury)

don’t necessarily involve the “use” of physical force. Id. In doing so, we took

Castleman’s newly announced reasoning from the 18 U.S.C. § 921(a)(33)(A)(ii) realm

and extended it to the Armed Career Criminal Act, 18 U.S.C. § 924(e). See id. at 536–38.

We do no more here by applying Voisine outside of § 921(a)(33)(A)(ii). We recognized

in Ontiveros that Castleman’s reasoning abrogated the reasoning on which we had

decided our earlier cases. Ontiveros, 875 F.3d at 538. Here we recognize that Voisine

does the same. Simply put, our reasoning in Zuniga-Soto and Duran has lost viability

after Voisine.

       Finally, Bettcher invokes the rule of lenity. But this argument is unavailing. In

Voisine, the Supreme Court rejected the same claim. 136 S. Ct at 2282 n.6. The rule of

lenity applies only when “a grievous ambiguity or uncertainty in the statute” leaves the

court “simply [to] guess as to what Congress intended.” Abramski v. United States, 573

U.S. 169, 188 n.10 (2014) (quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)). In

Voisine, the court stated that 18 U.S.C. “§ 921(a)(33)(A) plainly encompasses reckless

assaults.” 136 S. Ct. at 2282 n.6. Here, after Voisine, the law is sufficiently plain that

                                              12
reckless assaults qualify as crimes of violence under U.S.S.G. § 4B1.2(a)(1). Cf. Mann,

899 F.3d at 908 (denying relief under the rule of lenity when applying Voisine to include

reckless assaults under 18 U.S.C. § 113(a)(6) as crimes of violence under 18 U.S.C.

§ 924(c)(3)(A)).

                                    CONCLUSION

      For the reasons given, we reverse and remand for resentencing consistent with this

opinion.




                                           13
