United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS, U.S. DISTRICT COURT JUDGE
the Court is Defendant Jeff Lee Jewart's objection to the
Presentence Investigation Report's calculation of his
base offense level. For the following reasons, the Court
overrules Jewart's objection.
26, 2019, Jewart 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. 16, 18, 19). The Court set
sentencing for October 31, 2019, and a Presentence
Investigation Report was ordered to be prepared. (Doc. 20).
compiling the Defendant's criminal history, the
Presentence Investigation Report author discovered Jewart had
previously been convicted of an assault in Wyoming in 2010.
The conviction was for Aggravated Assault and Battery in
violation of Wyo. Stat. Ann. § 6-2-502(a). While
calculating Jewart's offense level, the Presentence
Investigation Report author determined Jewart's base
offense level was 22 under USSG § 2K2.1(a)(3), which
provides, in relevant part, a defendant's base offense
level is 22 if the offense involved a firearm capable of
accepting a large capacity magazine and 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 Jewart's prior assault was a crime of
violence under U.S.S.G. §§ 2K2.1 app. n. 1 and 4B
objected to the Presentence Investigation Report's
conclusion that his prior assault was a crime of violence
under U.S.S.G. §§ 2K2.1 and 4B 1.2(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. § 4B 1.2(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, attempted use, or threatened use of violent physical