United States v. Devereaux, No. 22-1203 (10th Cir. 2024)
Annotate this CaseIn a criminal appeal, the defendant, Kenneth Devereaux, challenged his sixty-month sentence for being a felon in possession of a firearm. He argued that the district court erred in treating his prior conviction for assault resulting in serious bodily injury as a "crime of violence" and using that conviction to increase his base offense level. The United States Court of Appeals for the Tenth Circuit agreed with Devereaux and the government that the district court had erred. The court concluded that the differing mental states (intentional or reckless) that could constitute a violation of the assault statute were different means of committing a single, indivisible offense, rather than elements of separate offenses. The court applied the Supreme Court's guidance in Mathis v. United States and its own post-Borden decision in United States v. Benally to reach this conclusion. As a result, because the least criminalized conduct the assault statute proscribes is recklessness, a conviction under the statute does not categorically involve the use, attempted use, or threatened use of physical force against another person. Therefore, the court vacated Devereaux's sentence and remanded the case for resentencing.
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