United States v. Carson

¶5PER CURIAM:

¶6We address whether a conviction under Washington’s second-degree assault statute is a “crime of violence” for the purposes of the Sentencing Guidelines career offender enhancement provision, U.S.S.G. § 4B1.1.

¶7Facts

¶8Defendant was convicted of being a felon in possession of a firearm, posses*619sion of a firearm in furtherance of drug trafficking and possession of methamphetamine with intent to distribute. At sentencing, the district court found that defendant was a career offender subject to a sentencing enhancement under U.S.S.G. § 4Bl.l(a). Specifically, the judge found that defendant’s prior convictions in Washington State for second-, Wash. Rev. Code § 9A.36.021(l)(f), and third-degree assault, Wash. Rev.Code § 9A.36.031(l)(f), are “crimes of violence” for purposes of section 4Bl.l(a). On appeal, defendant challenges the determination that second-degree assault, as defined by subsection (l)(f) of Washington’s second-degree assault provision, is a crime of violence.1

¶9Analysis

¶10A defendant who, like Carson, has been convicted of a controlled substance offense committed when he was at least eighteen years old, is eligible for a sentencing enhancement under section 4Bl.l(a) if he has at least two prior convictions for “crime[s] of violence.” A “crime of violence” for the purposes of section 4Bl.l(a) is defined by U.S.S.G. § 4B1.2(a) as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

¶11Id. (emphasis added).

¶12Defendant was convicted under subsection (l)(f) of Washington’s second-degree assault statute, which punishes the “[k]nowing[ ] infliction of] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.” Wash. Rev.Code § 9A.36.021(l)(f).2 The offense meets the prefatory requirement of section 4B1.2(a), because, under Washington law, second-degree assault is a “class B” felony punishable by a maximum term of ten years imprisonment. See Wash. Rev.Code §§ 9A.36.021(2)(a), 9A.20.021(l)(b). The parties here dispute whether the offense also meets the requirements of either subsections 4B1.2(a)(l) or (2).

¶13Under the categorical analysis of Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we look *620to the statutory definition of the prior offense to determine whether the “elements of the offense are of the type that would justify its inclusion” within the federal provision. James v. United States, — U.S. —, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). In so doing, we must not conjure up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit an act encompassed by the federal provision. Rather, we must find “a realistic probability, not a theoretical possibility,” that this might happen. Gonzales v. Duenas-Alvarez, -U.S.-, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). In other words, “the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case,” would satisfy the requirements of section 4Bl.l(a). James, 127 S.Ct. at 1597 (emphasis added). If we find that it would, the burden shifts to the defendant to “at least point to his own case or other cases” where the state courts applied the statute in a way that would make it overbroad under Taylor. Duenas-Alvarez, 127 S.Ct. at 822.

¶14Under the categorical approach, as refined by James and Duenas-Alvarez, we have little difficulty concluding that a conviction under subsection (l)(f) of Washington’s second-degree assault statute “presents a serious potential risk of physical injury to another” and is therefore a “crime of violence” for the purposes of the career offender enhancement provision. Even were it possible to “[kjnowingly inflict[ ] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture” without creating a serious risk of physical injury, this would not be the ordinary case. Common experience teaches that the level of pain suffered by the victim increases with the degree of trauma inflicted. For example, a blow severe enough to break a bone or cause a concussion will certainly be more painful than a slap in the face. Knowing infliction of bodily harm serious enough to cause the degree of pain or agony described in subsection (l)(f) will, in the ordinary case, carry a significant risk of physical injury to the victim.

¶15Defendant has made no showing that the state courts have applied Wash. Rev.Code § 9A.36.021(l)(f) to him, or anybody else, in circumstances where bodily injury was unlikely to occur. Given that defendant’s prior conviction for second-degree assault is for a categorical crime of violence, the district court did not err in determining that defendant was eligible for a career offender enhancement.3

¶16AFFIRMED.