United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WAITERS, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Gary Duane Ervin's objection to
the Presentence Investigation Report's calculation of his
base offense level. For the following reasons, the Court
overrules Ervin's objection.
April 5, 2019, Ervin pled guilty to one count of being a
prohibited person in possession of a firearm, in violation of
18 U.S.C. 922(g)(1). (Docs. 20, 23, 24). The Court set
sentencing for August 8, 2019, and a Presentence
Investigation Report was ordered to be prepared. (Doc. 25).
compiling the Defendant's criminal history, the
Presentence Investigation Report author discovered Ervin had
previously been convicted of two assaults in Michigan in
2001. The first conviction was for Assault with Intent to Rob
While Armed in violation of Mich. Comp. Laws Ann. §
750.89. The second conviction was for Assault with Intent to
do Great Bodily Harm in violation of Mich. Comp. Laws Ann.
§ 750.84(1)(a). While calculating Ervin's offense
level, the Presentence Investigation Report author determined
Ervin's base offense level was 20 under USSG §
2K2.1(a)(4)(A), which provides, in relevant part, a
defendant's base level is 20 if the defendant committed
the offense subsequent to sustaining a felony conviction of
either a crime of violence or a controlled substance offense.
The Presentence Investigation Report author concluded
Ervin's two assaults were crimes of violence under
U.S.S.G. §§ 2K2.1 app. n. 1 and 4B 1.2(a).
objected to the Presentence Investigation Report's
conclusion that his two prior assaults were crimes of
violence under U.S.S.G. §§ 2K2.1 and 4B1.2(a).
determine whether a prior conviction is a crime of violence
under U.S.S.G. § 4B 1.2(a), the Court applies what's
known as the categorical approach. United States v.
Door, 917 F.3d 1146, 1150 (9th Cir. 2019) (citing
Taylor v. United States, 495 U.S. 575 (1990)). Under
the categorical approach, the Court compares the elements of
the statute of conviction with U.S.S.G. § 4B1.2(a)'s
definition of "crime of violence" to determine
whether the statute of conviction criminalizes a broader
range of conduct than the federal definition captures.
Door, 917 F.3d at 1150 (citing United States v.
Edling, 895 F.3d 1153, 1155 (9th Cir. 2018)).
Sentencing Guidelines define "crime of violence" as
[A]ny 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
[known as the force clause], or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion,
or the use or unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as defined in
18 U.S.C. § 841(c) [known as the enumerated offenses
U.S.S.G. § 4B1.2(a). When determining whether a prior
conviction constitutes a crime of violence, the precise
inquiry differs depending on whether the offense is alleged
to qualify as a crime of violence pursuant to the force
clause or the enumerated offenses clause. Door, 917
F.3d at 1150. An offense constitutes a "crime of
violence" if it qualifies under either of the clauses.
Door, 917 F.3d at 1150. Throughout the analysis, the
Court presumes the prior conviction rested upon nothing more
than the least of the acts criminalized by the statute of
conviction. Door, 917 F.3d at 1150 (citing
Moncrieffe v. Holder, 569 U.S. 184, 191-192 (2013)).
determine whether a prior conviction qualifies pursuant to
the force clause, the question is whether the crime of
conviction "has as an element the use or threatened use
of physical force against the person of another, with
'physical force' understood to mean in this context
'violent force-that is, force capable of causing
physical pain or injury to another person.'"
Door, 917 F.3d at 1151 (citing Edling, 895
F.3d at 1156). If the crime of conviction necessarily entails
the use or threatened use of violent physical force, ...