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

                             FOR THE TENTH CIRCUIT                        September 22, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-8113
                                                  (D.C. No. 2:16-CR-00015-ABJ-1)
JOSEPH TYRELL DEVRIES,                                        (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.
                  _________________________________

      Joseph Devries appeals his sentence, arguing that his Wyoming conviction for

threatening to use a drawn deadly weapon does not qualify as a crime of violence

under U.S.S.G. § 4B1.1. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm his sentence.

                                            I

      Devries pled guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). A Presentence Investigation Report (“PSR”) recommended

that Devries’ 2014 conviction in Wyoming state court for threatening to use a drawn

deadly weapon be treated as a crime of violence under U.S.S.G. § 4B1.2. Combined

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
with a prior controlled substance conviction, Devries was subject to a base offense

level of 24. With a total offense level of 25 and a criminal history category of VI,

Devries’ advisory Guidelines range was 110-120 months. The district court adopted

the PSR and imposed a sentence of 110 months. Devries timely appealed.

                                           II

      We review de novo whether a state crime qualifies as a “crime of violence”

under § 4B1.2. United States v. Rooks, 556 F.3d 1145, 1146-47 (10th Cir. 2009). A

crime of violence includes any offense punishable by a term of imprisonment of more

than one year that “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). In conducting

our analysis, we apply the modified categorical approach to “determine which

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

conviction.” United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017)

(quotation omitted).1 “With the elements (not the facts) identified, courts can then do

what the categorical approach demands and compare those elements to the

[Guidelines] definition.” Id. (quotation omitted). Courts “must focus on the

minimum conduct criminalized by the state statute without applying legal

imagination to consider hypothetical situations that technically violate the law but




      1
         There appears to be no dispute that the statute at issue is divisible; both
parties confine their analyses to the particular subsection under which Devries was
convicted. See id. (noting that a divisible statute “sets out one or more elements of
the offense in the alternative” (quotation omitted)).
                                           2
have no realistic probability of falling within its application.” Id. at 1274 (quotations

omitted).

       Devries was convicted under a subsection of Wyoming’s aggravated assault

and battery statute that applies to any individual who “[t]hreatens to use a drawn

deadly weapon on another unless reasonably necessary in defense of his person,

property or abode or to prevent serious bodily injury to another.” Wyo. Stat. § 6-2-

502(a)(iii). A “deadly weapon” is “a firearm, explosive or incendiary material,

motorized vehicle, an animal or other device, instrument, material or substance,

which in the manner it is used or is intended to be used is reasonably capable of

producing death or serious bodily injury.” Wyo. Stat. § 6-1-104(a)(iv).

      Because the term “deadly weapon” includes animals and substances, Devries

argues that the statute could be violated by a defendant who threatens to poison a

victim while holding a vial of poison, or who warns he will release bees or poisonous

snakes. He relies on United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir.

2008), a case in which we held that a Colorado conviction for “drugging a victim”

does not constitute a crime of violence. Id. at 1191. We concluded that the

Guidelines’ use of the modifier “physical” in physical force “must refer to the

mechanism by which the force is imparted to the person of another.” Id. at 1194

(quotation omitted). “[I]t is the presence of [a] mechanical impact that defines when

force is physical. In contrast, the effect of poison on the body is achieved by

chemical action, not by mechanical impact.” Id. Accordingly, “injury effected by

chemical action on the body (as in poisoning or exposure to hazardous chemicals)

                                            3
should not be described as caused by physical force.” Id. at 1195; see also United

States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005) (stating that

“intentionally exposing someone to hazardous chemicals” would not constitute the

use of physical force).2

      However, we limited the application of this rule in Armijo. In that case we

considered a Colorado felony menacing statute that applied when an individual

placed another in “fear of imminent serious bodily injury” through the use or

threatened use of a “deadly weapon.” Armijo, 651 F.3d at 1230 (quoting Colo. Rev.

Stat. § 18-3-206). Like the Wyoming statute at issue in this case, the term “deadly

weapon” was defined to include a “material[] or substance.” Id. (quoting Colo. Rev.

Stat. § 18-1-901(e)). Relying on Rodriguez-Enriquez, the defendant argued that

because the offense could be committed by poisoning, it did not qualify as a crime of

violence. We held that “Rodriguez-Enriquez stands for the limited proposition that a

Colorado provision criminalizing the surreptitious drugging of a victim does not

involve the use of physical force.” Id. at 1233. Even in light of that rule, we held

that the Colorado offense qualified as a crime of violence “despite the inclusion of

poisons and pathogens in Colorado’s definition of deadly weapon.” Id. at 1231-32.

      We conclude the Wyoming offense at issue is closer to that considered in

Armijo than in Rodriguez-Enriquez. The Wyoming statute requires that a weapon be


      2
       These cases considered whether an offense qualified as a “crime of violence”
under U.S.S.G. § 2L1.2 rather than § 4B1.2. But the two provisions contain identical
elements clauses, and we have construed them in the same fashion. See United States
v. Armijo, 651 F.3d 1226, 1233 n.4 (10th Cir. 2011).
                                           4
“drawn,” which the Wyoming Supreme Court has interpreted to mean “in a position

for use when [defendant] made the threat.” Ewing v. State, 157 P.3d 943, 947 (Wyo.

2007). Although we are not directed to Wyoming case law directly on point, it would

seem that a defendant who threatens a victim with poison or venom would have to

threaten to force it on the victim rather than surreptitiously apply it. And we ruled in

Armijo that unlike surreptitious poisoning, a threat to “force the poison on the

victim” is sufficient to qualify as a threat of physical force. 651 F.3d at 1232

(quotation omitted).

      Devries notes that the Wyoming statute lacks an explicit imminence element,

and thus one could threaten to surreptitiously poison a victim at a later date while

holding a vial. But the requirement that a defendant threaten to use a deadly weapon

that is “in a position for use,” Ewing, 157 P.3d at 947, strongly suggests that the

defendant must threaten to use it at the time it is drawn. We thus think that the

scenarios proposed by Devries are “hypothetical situations that technically violate the

law but have no realistic probability of falling within its application.” Titties, 852

F.3d at 1274 (quotations omitted).

                                           III

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge


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