United States v. Abeyta, No. 17-1025 (10th Cir. 2017)
Annotate this CaseDefendant Thomas Abeyta challenged the sentence he received for pleading to being a previously convicted felon in possession of a firearm. The district court enhanced Abeyta’s sentence pursuant to United States Sentencing Guidelines section 4A1.2(c), counting Abeyta’s prior conviction for “damaging, defacing or destruction of private property” under Denver Revised Municipal Code (“Den.”) section 38-71 as a local ordinance violation that also violates state criminal law. Because Den. 38-71 offense was a local ordinance violation, it qualified as an exception under 4A1.2(c)(2), meaning that it did not count toward Abeyta’s criminal history score. But, if a Den. 38-71 offense also violated state criminal law, then the exception to the exception applies, meaning that it did count under the guidelines. Abeyta argued (among other things) that his Den. 38-71 conviction was a local ordinance violation that did not necessarily violate state criminal law. He noted that Colorado has a similar offense, Colo. Rev. Stat. (“Colo.”) section 18-4-501 (making it “unlawful for any person knowingly to damage, deface, destroy or injure” another person’s property), but argued that the Colorado statute only criminalized conduct that actually damaged property, whereas Den. 38-71 criminalized broader conduct, including defacement that does not cause damage. Because a violation of Den. 38-71 does not necessarily violate Colo. 18-4-501, Abeyta argued, the “exception to the exception” did not apply. The Tenth Circuit determined the district court erred by applying a "common sense approach" in making the Den. 38-71 conviction count towards his criminal history score. The Court remanded this case with direction to vacate Abeyta's sentence and for resentencing.
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