United States v. Gieswein, No. 16-6366 (10th Cir. 2018)
Annotate this CaseShawn Gieswein appealed his sentence pursuant to convictions for witness tampering and possession of a firearm as a felon. The Tenth Circuit agreed with Gieswein that the district court erred in applying a circumstance-specific approach to determine that his prior conviction for lewd molestation in Oklahoma state court qualified as a “forcible sex offense” and thus a “crime of violence” under the Sentencing Guidelines. “Recent changes to the Guidelines have not abrogated our prior decisions holding that the categorical approach applies in determining whether a conviction qualifies as a ‘forcible sex offense.’” Because the Oklahoma statute included conduct that would not qualify, Gieswein’s conviction should not have been treated as a crime of violence. Although an erroneously calculated Guidelines range generally requires resentencing, the Court found this was the rare case in which the error was harmless.
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