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Criminal Law

: Tenth Circuit Blog

Federal Conviction of Assault with a Dangerous Weapon Is A Crime of Violence, Tenth Circuit Holds

By Shari Allison

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United States v. Muskett, No. 17-2123, 2020 WL 4726020 (10th Cir. Aug. 14, 2020) (N.M.) 2255 appeal seeking to vacate a conviction for brandishing in furtherance of a crime of violence post-Davis. The predicate felony was assault with a dangerous weapon, 18 U.S.C. 113(a)(3). The government argued that even though Davis rendered the residual clause unconstitutional, the predicate satisfied the elements clause in 18 U.S.C. 924(c), rendering any problem harmless. The Tenth goes through the analysis that they?ve been going through lately, effectively rendering the Curtis Johnson Ievel of force (i.e. violent force) a nullity by applying Castleman and Ontiveros (both containing more expansive definitions of ?physical force.?) Armed with this logic, the Court holds that 113(a)(3) crimes satisfy the elements clause reasoning ?if one has attempted or threatened to inflict injury upon another person (thereby committing federal criminal assault), he has attempted or threatened physical force capable of causing physical pain or injury...continue to full post

Full post as published by Tenth Circuit Blog on August 17, 2020 (boomark / email).