                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                     UNITED STATES COURT OF APPEALS                          October 9, 2012

                                                                           Elisabeth A. Shumaker
                                     TENTH CIRCUIT                             Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,
                                                             No. 11-1303
v.

GERALD SANDOVAL,

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Colorado
                        (D.C. No. 1:10-CR-00470-WYD-1)



John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public
Defender with him on the brief) Denver, Colorado, for Defendant – Appellant.

Michael Conrad Johnson, Assistant U.S. Attorney (John F. Walsh, U.S. Attorney and
Patricia Davies, Assistant U.S. Attorney with him on the brief) Denver, Colorado, for
Plaintiff – Appellee.


Before KELLY, SEYMOUR, and O'BRIEN, Circuit Judges.


O’BRIEN, Circuit Judge.


      This is another of those cases, now becoming legion,1 where we must decide if a
prior conviction constitutes a violent felony under the Armed Career Criminal Act

(ACCA). See 18 U.S.C. § 924(e). Gerald Sandoval pled guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, he admitted

to several previous felony convictions, two of which, he also admits, are violent felonies

as defined by the ACCA. But he claims neither of the two remaining previous felonies

considered by the court, first-degree criminal trespass and second-degree assault, are

violent. Because either conviction could serve as the third “violent felony” triggering a

15-year mandatory minimum sentence under the ACCA, we address only one and

conclude his conviction of second degree assault, even though mitigated by heat of

passion, is a violent crime for the purposes of the ACCA.2




       1
         Since the Supreme Court decided Sykes v. United States, -- U.S.--, 131 S. Ct.
2267, 2270 (2011), a bit more than one year ago, there have been numerous reported
appellate cases construing a violent crime under the ACCA. The law is not well-settled.
As Justice Scalia commented in a dissent from the denial of certiorari:

       If it is uncertain how this Court will apply Sykes and the rest of our ACCA
       cases going forward, it is even more uncertain how our lower-court
       colleagues will deal with them. Conceivably, they will simply throw the
       opinions into the air in frustration, and give free rein to their own feelings
       as to what offenses should be considered crimes of violence—which, to tell
       the truth, seems to be what we have done. (Before throwing the opinions
       into the air, however, they should check whether littering—or littering in a
       purposeful, violent, and aggressive fashion—is a felony in their
       jurisdiction. If so, it may be a violent felony under ACCA; or perhaps not.)

Derby v. United States, -- U.S.--, 131 S. Ct. 2858, 2859-60 (2011) (Scalia, J., dissenting).
       2
           We defer discussion of first-degree criminal trespass to another day.

                                                -2-
                                      DISCUSSION

       It is a federal crime for a convicted felon to unlawfully possess a firearm. 18

U.S.C. § 922(g)(1). Ordinarily, the maximum sentence for that crime is 10 years of

imprisonment. 18 U.S.C. § 924(a)(2). “If, however, when the unlawful possession

occurred, the felon had three previous convictions for a violent felony or serious drug

offense, the punishment is increased to a minimum term of 15 years.” Sykes v. United

States, -- U.S.--, 131 S. Ct. 2267, 2270 (2011) (citing 18 U.S.C. § 924(e)). Sandoval

claims his conviction for second-degree, heat-of-passion assault (a violation of Colo.

Rev. Stat. § 18-3-203(2)), is not a violent felony.

       The ACCA defines a “violent felony” as:

       any crime punishable by imprisonment for a term exceeding one year . . .
       that—

       (i) has as an element the use, attempted use, or threatened use of physical
       force against the person of another; or

       (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
       involves conduct that presents a serious potential risk of physical injury to
       another.

18 U.S.C. § 924(e)(2)(B).

       Whether a prior conviction qualifies as a “crime of violence” is a legal question

we review de novo. United States v. McConnell, 605 F.3d 822, 824 (10th Cir. 2010),

cert, denied, 131 S. Ct. 3021 (2011).3 To determine whether a prior conviction is a crime



       3
        McConnell construed the “crime of violence” language in the Guidelines.
“Because of th[e] commonality of language in the residual clauses of the ACCA and

                                                -3-
of violence, we must take “a formal categorical approach, looking only to the statutory

definitions of the prior offenses, and not to the particular facts underlying those

convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990).4

          In Colorado, second-degree assault may be committed in several different ways.

Sandoval pled guilty to violating § 18-3-203(1)(b), which provides: “A person commits

the crime of assault in the second degree if . . . [w]ith intent to cause bodily injury to

another person, he or she causes such injury to any person by means of a deadly

weapon . . . .” The statute, however, contains a mitigating provision, § 18-3-

203(2)(a)(1996), which applied in Sandoval’s case. At the time of the plea the provision

stated:

          If assault in the second degree is committed under circumstances where the
          act causing the injury is performed, not after deliberation, upon a sudden
          heat of passion, caused by a serious and highly provoking act of the
          intended victim, affecting the person causing the injury sufficiently to




USSG § 4B1.2(a), we have consistently interpreted them identically.” United States v.
Thomas, 643 F.3d 802, 805 (10th Cir. 2011).
          4
          If “the statute is ambiguous, or broad enough to encompass both violent and
nonviolent crimes, a court can look beyond the statute ‘to certain records of the prior
proceeding, such as the charging documents, the judgment, any plea thereto, and findings
by the [sentencing] court.’” United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir.
2001) (quoting United States v. Zamora, 222 F.3d 756, 764 (10th Cir. 2000)). Known as
a modified categorical approach, we limit our inquiry to “(1) an examination of the
language of the statute under which [Sandoval] was convicted, (2) the charging document
or court records of comparable reliability, and (3) any admissions (including those within
the plea agreement) [Sandoval] made regarding the facts of his prior convictions.”
United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005). The record in this
case contains no such documents.

                                                 -4-
       excite an irresistible passion in a reasonable person, it is a class 6 felony. 5

The district judge decided Sandoval’s second-degree assault conviction, even if

committed upon provocation and in the heat-of-passion, was a violent crime under the

residual clause of § 924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a

serious potential risk of physical injury to another”).6 He is correct.

       When evaluating whether a specific statute is a crime of violence under §

924(e)(2)(B)(ii)’s residual clause, we do not inquire “‘into the specific conduct of this

particular offender.’” Sykes, 131 S. Ct. at 2272 (quoting James v. United States, 550 U.S.

192, 202 (2007)). “[Sandoval] freely admits that heat-of-passion assault does not just

pose a serious risk of injury to another, it actually requires an injury to another, and with

a deadly weapon . . . .” (Appellant’s Reply Br. at 7-8.) He argues, however, because a



       5
           In 1997, the legislature changed § 18-3-203(2)(a)’s language to read:

       If assault in the second degree is committed under circumstances where the
       act causing the injury is performed upon a sudden heat of passion, caused
       by a serious and highly provoking act of the intended victim, affecting the
       person causing the injury sufficiently to excite an irresistible passion in a
       reasonable person, and without an interval between the provocation and the
       injury sufficient for the voice of reason and humanity to be heard, it is a
       class 6 felony.

      The legislature removed the phrase “not after deliberation” and added the
language requiring the absence of an interval between the provocation and the act.
       6
         Although the government originally maintained Sandoval’s crime qualified
under both 18 U.S.C. § 924(e)(2)(B)(i) and (ii), it limited its argument to the residual
clause prior to oral argument. Therefore, the only question is whether Sandoval’s heat-
of-passion, second-degree assault conviction is a crime of violence under the residual
clause found in § 924(e)(2)(B)(ii).

                                                 -5-
heat-of-passion violation involves, by definition, a lack of deliberation and, in addition,

the defendant’s acts must result from provocation by the victim “sufficient[] to excite an

irresistible passion in a reasonable person,” his offense does not reflect the purposeful

and aggressive conduct contemplated by Begay v. United States, 553 U.S. 137 (2008).

       In Begay, the Supreme Court decided a state conviction for driving under the

influence of alcohol (DUI) was not a “violent felony” under the ACCA. The Court

“assume[d] the lower courts were right in concluding that DUI involves conduct that

‘presents a serious potential risk of physical injury to another.’” 553 U.S. at 141 (quoting

18 U.S.C. § 924(e)(2)(B)(ii)). Nonetheless, it concluded DUI was not a “violent felony”

because the examples in 18 U.S.C. § 924(e)(2)(B)(ii) “illustrate the kinds of crimes that

fall within the statute’s scope,” and “[t]heir presence indicates that the statute covers only

similar crimes, rather than every crime that ‘presents a serious potential risk of physical

injury to another.’” Id. at 142 (quoting § 924(e)(2)(B)(ii)). Thus, to constitute a “violent

felony” under the ACCA’s residual clause, Begay requires the offense to be “roughly

similar, in kind as well as in degree of risk posed, to the [statutory] examples

themselves.” Id. at 143. The Court reasoned: “DUI differs from the example crimes—

burglary, arson, extortion, and crimes involving the use of explosives—in at least one

pertinent, and important, respect. The listed crimes all typically involve purposeful,

violent, and aggressive conduct.” Id. at 144-45 (quotation marks omitted). Because the

DUI statute did not require purposeful, violent, and aggressive conduct to sustain a

conviction, it was not a violent crime under the statute.


                                                -6-
       Following Begay, our residual clause analysis involved a two-part inquiry: (1)

“whether the offense presents a serious potential risk of physical injury to another” and

(2) whether “the offense is roughly similar, in kind as well as degree of risk posed, to the

enumerated crimes,” i.e., whether it was purposeful, violent, and aggressive. McConnell,

605 F.3d 826-27 (quotation marks omitted). It is the second question Sandoval contends

we must answer in the negative. He argues his crime is not similar in kind to the

enumerated crimes because those offenses require deliberation and cannot be mitigated

by heat of passion. According to Sandoval, his crime involved no deliberation, thus

making it akin to a crime committed recklessly, not intentionally or purposefully. And

under our cases following Begay, “reckless” conduct is not considered a “crime of

violence” even if there is a serious risk of physical injury. See, e.g., United States v.

Armijo, 651 F.3d 1236, 1237 (10th Cir. 2011).

       His argument is unpersuasive for several reasons. First, the Supreme Court’s

decision in Sykes limited the application of Begay’s inquiry into whether the crime is

“purposeful, violent, and aggressive.” 131 S. Ct. at 2275. The Court stated:

       The Begay phrase is an addition to the statutory test. In many cases the
       purposeful, violent, and aggressive inquiry will be redundant with the
       inquiry into risk, for crimes that fall within the former formulations and
       those that present serious potential risks of physical injury to others tend to
       be one and the same. As between the two inquiries, risk levels provide a
       categorical and manageable standard that suffices to resolve the case before
       us.

       Begay involved a crime akin to strict liability, negligence, and recklessness
       crimes; and the purposeful, violent and aggressive formulation was used in
       that case to explain the result. The felony at issue here is not a strict


                                                -7-
       liability, negligence, or recklessness crime and because it is, for the reasons
       stated and as a categorical matter, similar in risk to the listed crimes, it is a
       crime that “otherwise involves conduct that presents a serious potential risk
       of physical injury to another.”

Id. at 2275-76.

       After Sykes, it is not necessary to reach Begay’s “purposeful” inquiry when the

mens rea of the offense requires intentional conduct. United States v. Smith, 652 F.3d

1244, 1247-48 (10th Cir. 2011). “Where the felony at issue is ‘not a strict liability,

negligence or recklessness crime’ the test is not whether the crime was ‘purposeful,

violent, and aggressive’ but whether it is ‘similar in risk to the listed crimes.’” Smith,

652 F.3d at 1248 (quoting Sykes, 131 S. Ct. at 2276); see United States v. Perez-Jiminez,

654 F.3d 1136, 1141 n.4 (10th Cir. 2011) (Sykes limited Begay’s test to strict liability,

reckless, and negligent crimes). Here, the statutory elements of second-degree, heat-of-

passion assault require specific intent, i.e. Sandoval intended to cause bodily injury to the

victim and actually caused bodily injury.7 The intent and risk involved in his crime

clearly meet the Sykes test.8




       7
           Under Colorado law, “intentionally” or “with intent” is defined as follows:

       All offenses defined in this code in which the mental culpability
       requirement is expressed as “intentionally” or “with intent” are declared to
       be specific intent offenses. A person acts “intentionally” or “with intent”
       when his conscious objective is to cause the specific result proscribed by
       the statute defining the offense. It is immaterial to the issue of specific
       intent whether or not the result actually occurred.


                                                 -8-
Colo. Rev. Stat. § 18-1-501(5). In contrast, a person acts “recklessly” “when he
consciously disregards a substantial and unjustifiable risk that a result will occur or that a
circumstance exists.” Id. § 18-1-501(8).
       8
          The Supreme Court’s holding in Sykes is not a model of clarity. See Sykes, 131
S. Ct. at 2284 (Scalia, J., dissenting). However, it is clear after Sykes, that resort to
Begay’s “purposeful, violent, and aggressive” test is not required in every case. The
Court plainly stated that “[i]n general, levels of risk divide crimes that qualify [as
predicates] from those that do not,” and it ultimately held, “risk levels provide a
categorical and manageable standard that suffices to resolve the case before us.” Id. at
2275-76 (emphasis added). Resort to the Begay analysis was unnecessary in Sykes. Id.

       Thus, objective risk or dangerousness appears to be the general measure of
whether an offense is a crime of violence, especially when the offense requires
intentional or knowing conduct. The fate of other considerations, such as the
“purposeful, violent, and aggressive” formulation from Begay, is less than clear. It may
be that the test is reserved for cases “akin to strict liability, negligence, and recklessness
crimes.” Id. That is how Justice Thomas reads the majority opinion. Id. at 2277-78
(Thomas, J., concurring) (“[T]he majority errs by implying that the ‘purposeful, violent,
and aggressive’ test may still apply to offenses ‘akin to strict liability, negligence, and
recklessness crimes.’”). According to Justice Scalia the Court “now suggests” Begay’s
test “applies only ‘to strict liability, negligence and recklessness crimes.’” Id. at 2285
(Scalia, J., dissenting). However, Justice Kagan expressly rejects this reading. Id. at
2289 n.1 (Kagan, J., dissenting) (“I understand the majority to retain the ‘purposeful,
violent, and aggressive’ test, but to conclude that it is ‘redundant’ in this case . . . . I do
not think the majority could mean to limit the test to ‘strict liability, negligence, and
recklessness crimes.’”).

        Even as to such “strict liability, negligence, and recklessness crimes,” however, it
is far from clear that the Supreme Court is still committed to the Begay test. The majority
was deliberate in its criticism of the Begay test, particularly highlighting the test’s lack of
a “textual link” and observing that Begay was the Court’s “sole decision” to rely on the
test rather than a more general assessment of risk. Id. at 2275. In short, it is hard to say
whether the Begay test survived Sykes, and if so, under what circumstances Begay
continues to apply.

       This is especially problematic for those Circuits, like ours, that have held crimes
involving “recklessness” to be categorically outside the scope of the ACCA’s residual
clause even after Sykes. See Armijo, 651 F.3d at 1236-37 & n.14 . The future application
of Begay seems to be open to debate, at least in this Circuit.

                                                  -9-
       Even if we were to consider the mitigating clause and apply the Begay test, it

would make no difference. Heat of passion is not an element of second-degree assault.

See People v. Sanchez, 253 P.3d 1260, 1263 (Colo. App. 2010), cert. denied, 2011 WL

2175853 (D. Colo. May 16, 2011) (“[T]he statutory elements that the prosecution must

prove for first or second degree assault do not include proof of the presence or absence of

heat of passion.”). Instead, it is “a circumstance that mitigates otherwise applicable

penalties for [certain] crimes . . . .” People v. Villarreal, 131 P.3d 1119, 1126 (Colo.

App. 2005). Even though Sandoval’s crime may have been impulsive, it is no less

violent and intentional. Although Sandoval may have acted without deliberation and

subject to an “irresistible passion,” his conduct still constituted a violent, purposeful, and

aggressive felony. See People v. Martinez, 32 P.3d 582, 584 (Colo. App. 2001)

(Colorado second-degree murder conviction is a crime of violence even if committed in

the heat of passion); United States v. Banks, 514 F.3d 769, 780 (8th Cir. 2008) (Colorado

assault in the first degree, whether in the heat of passion or not, is still a violent crime

under USSG §4B1.2(a)(2)).

       AFFIRMED.




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