United States v. Adams

40 F.4th 1162

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 20, 2022
• Docket: 21-3043
• Status: Published

Opinion

Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH July 20, 2022 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ___________________________________________

UNITED STATES,

Plaintiff - Appellee,

v. No. 21-3043

BRIAR CLAYTON EUGENE ADAMS,

Defendant - Appellant. ______________________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 5:20-CR-40015-TC-1) ___________________________________________

Melody Brannon, Kansas Federal Public Defender (Daniel T. Hansmeier, Appellate Chief, with her on the briefs), Kansas City, Kansas, for Defendant-Appellant.

Bryan C. Clark, Assistant United States Attorney, District of Kansas (Duston J. Slinkard, Acting United States Attorney, and James A. Brown, Assistant United States Attorney, with him on the briefs), Kansas City, Kansas, for Plaintiff-Appellee. ______________________________________________

Before BACHARACH, EBEL, and CARSON, Circuit Judges. _____________________________________________

BACHARACH, Circuit Judge. _____________________________________________

This appeal involves a challenge to a criminal sentence for

unlawfully possessing a firearm. In deciding the sentence, the district court Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 2

started with the federal sentencing guidelines. Under the guidelines, a prior

conviction for a crime of violence would increase the base-offense level.

U.S.S.G. § 2K2.1(a)(4).

The district court applied this guideline provision to the defendant,

Mr. Briar Adams, who had a prior conviction in Kansas for aggravated

battery. In considering that conviction, the court classified aggravated

battery as a crime of violence and sentenced Mr. Adams to 51 months’

imprisonment. 1

Mr. Adams challenges this classification, arguing that Kansas’s

crime of aggravated battery includes conduct that wouldn’t create a crime

of violence under the sentencing guidelines. We agree. In Kansas an

aggravated battery could stem from battery against a fetus, and the

guidelines’ definition of a crime of violence wouldn’t cover battery against

a fetus. Because the Kansas crime of aggravated battery doesn’t constitute

a crime of violence, we vacate the sentence and remand for resentencing.

1 With the classification of aggravated battery as a crime of violence, Mr. Adams’s total offense level rose to 17. With an offense level of 17, the guideline range was 51 to 63 months’ imprisonment. Without classification as a crime of violence, the offense level would have been 11, creating a guideline range of 27 to 33 months’ imprisonment.

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I. We must decide whether aggravated battery in Kansas constitutes a crime of violence under the applicable sentencing guideline.

Mr. Adams was convicted of aggravated battery. Under Kansas law,

aggravated battery takes place when someone “knowingly caus[es] physical

contact with another person when done in a rude, insulting, or angry

manner with a deadly weapon, or in any manner whereby great bodily

harm, disfigurement or death can be inflicted.” Kan. Stat. Ann. § 21-

5413(b)(1)(C) (emphasis added). 2 A separate definitional provision for the

term person includes an “unborn child.” Kan. Stat. Ann. § 21-5419(c). The

term unborn child is itself defined as “a living individual organism of the

species homo sapiens, in utero, at any stage of gestation from fertilization

to birth.” Id.

Given these definitional provisions, we must determine whether the

statutory definition of person creates separate crimes for batteries against

fetuses and individuals born alive. If these definitional provisions create

separate crimes, we would need to decide

 which crime was reflected in Mr. Adams’s judgment and

2 The Kansas judgment of conviction does not identify the applicable subsection of § 5413. In district court, the parties assumed a violation of § 21-5413(b)(1)(C). The government conditioned this assumption on Mr. Adams’s waiver of any argument that the court should treat the convictions differently under (b)(1)(B) and (b)(1)(C). Section (b)(1)(B) defines aggravated battery as “knowingly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Kan. Stat. Ann. § 21- 5413(b)(1)(B). 3 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 4

 whether that crime qualified as a “crime of violence.”

If the definitional provisions do not create separate crimes, we would need

to decide whether every conviction under the Kansas aggravated-battery

statute would necessarily qualify as a crime of violence.

We conclude that the definitional provisions do not create separate

crimes. So we must consider whether some aggravated batteries would fall

outside the guidelines’ definition of a crime of violence. We answer yes.

The guidelines define a crime of violence as “any offense under federal or

state law, punishable by imprisonment for a term exceeding one year, that

. . . has as an element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 4B1.2(a)(1) (emphasis

added). Under this guideline definition, we conclude that the term person

refers only to individuals born alive; fetuses aren’t included. So some

aggravated batteries in Kansas would fall outside the federal sentencing

guidelines’ definition of a crime of violence.

II. We compare the guidelines’ definition of a crime of violence to the elements of Mr. Adams’s crime.

To determine whether the state conviction matches the federal

sentencing guidelines’ definition of a crime of violence, we apply the

categorical approach. United States v. Taylor, 843 F.3d 1215, 1220 (10th

Cir. 2016). Under this approach, the court identifies the elements of the

statute of conviction. Mathis v. United States, 579 U.S. 500, 136 S. Ct.

4 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 5

2243, 2248 (2016); United States v. Kendall, 876 F.3d 1264, 1268 (10th

Cir. 2017). The court then “compare[s] the scope of conduct covered by the

elements of the crime . . . with § 4B1.2(a)’s definition of ‘crime of

violence.’” United States v. O’Connor, 874 F.3d 1147, 1151 (10th Cir.

2017). “If some conduct that would be a crime under the statute would not

be a ‘crime of violence’ under § 4B1.2(a), then any conviction under that

statute will not qualify as a ‘crime of violence’ for a sentence enhancement

under the Guidelines, regardless of whether the conduct that led to a

defendant’s prior conviction was in fact violent.” Id.

III. Kansas’s statute on aggravated battery creates only a single crime that can be committed against either a fetus or an individual born alive.

To apply the categorical approach, we must determine the scope of

the applicable state statute. On appeal, the government argues that

Kansas’s aggravated-battery statute (§ 21-5413) and the definitional

provision (§ 21-5419) create two separate crimes: (1) § 21-5413

criminalizes battery of individuals born alive, and (2) § 21-5419

criminalizes battery of fetuses. We reject this argument, concluding that

the aggravated-battery statute creates only a single crime.

A. The government has justified consideration of its new argument as to the existence of two separate crimes.

The government didn’t make this argument in district court. But we

have discretion to consider this argument as a basis to affirm. Elkins v.

5 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 6

Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). In deciding how to

exercise this discretion, we consider

1. “whether the [argument] was fully briefed and argued here and below,”

2. “whether the parties have had a fair opportunity to develop the factual record,” and

3. “whether, in light of factual findings to which we defer or uncontested facts, [the court’s] decision would involve only questions of law.”

Id. The first factor weighs against consideration of the government’s new

argument as a basis to affirm, but the second and third factors support

consideration.

The first factor weighs against consideration because the government

did not brief the issue in district court. See United States v. Black, 25 F.4th

766, 777 (10th Cir. 2022) (stating that the first factor weighs against

consideration when the argument was fully briefed on appeal but hadn’t

been briefed in district court); Brown v. Perez, 835 F.3d 1223, 1236 (10th

Cir. 2016) (“Because the [appellees] did not raise this argument before the

district court, the first factor weighs against reaching it on appeal.”).

But the second and third factors support consideration. When the

appellate argument involves a pure issue of law, this factor would support

consideration. See p. 6, above. But if the Kansas statute created two

separate crimes, we’d need to decide which crime Mr. Adams had

committed. That inquiry would ordinarily involve either a question of fact

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or a mixed question of law and fact. Lucio-Rayos v. Sessions, 875 F.3d

573, 583 (10th Cir. 2017); see also Pereida v. Wilkinson, 141 S. Ct. 754,

765 (2021) (“Really, this Court has never doubted that the who, what,

when, and where of a conviction . . . pose questions of fact.”).

But here, Mr. Adams hasn’t suggested a factual dispute over the

nature of his conviction. In its response brief, the government had argued

that Mr. Adams’s conviction involved battery against his girlfriend rather

than a fetus. Mr. Adams responded that he didn’t need to address the

government’s characterization of his conviction. That’s true because he

contended only that aggravated battery constitutes a single crime that

covers harm to a fetus or an individual born alive.

Though Mr. Adams had a chance to address the government’s

characterization of his conviction, he didn’t need to. He could instead do

what he did, focusing on the characterization of the crime itself. And that

characterization creates a legal issue. See, e.g., United States v. Lerma,

877 F.3d 628, 632 (5th Cir. 2017) (stating that “the district court’s

divisibility determination would generally represent a question of law”).

Given the legal nature of that issue, we see no deficiency in the record on

the government’s characterization of Mr. Adams’s conviction. So the

second and third factors support consideration of the government’s new

argument.

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Because two of the three factors support consideration, we exercise

our discretion to consider the government’s new argument for affirmance.

B. We reject the government’s argument on the merits.

Though we consider the government’s new argument, we reject it

because aggravated battery in Kansas constitutes a single crime that can be

committed against either a fetus or individual born alive.

The parties agree that the Kansas law criminalizes batteries against

both fetuses and individuals born alive. But are batteries against

individuals and fetuses two separate crimes or just different means of

committing the same crime? The answer to this question turns on the

distinction between elements and means. United States v. Cantu, 964 F.3d

924, 927–28 (10th Cir. 2020). Elements are what the prosecution must

prove to obtain a conviction; means are just ways that someone can commit

a crime. Mathis v. United States, 579 U.S. 500, 136 S. Ct. 2243, 2248

(2016).

To determine whether statutory terms are elements or means, we start

by considering the state statute and state caselaw. If they definitively show

that the terms are elements or means, the inquiry ends. Id., 136 S. Ct. at

2256. If the status remains uncertain, we can peek at the state-court record

to determine whether the statutory term involves an element or means. Id.

at 2256–57. If we were to remain uncertain, we would consider the

8 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 9

statutory term a means (creating only a single crime) rather than an

element. United States v. Degeare, 884 F.3d 1241, 1248 (10th Cir. 2018).

1. The definitional provision creates means rather than elements.

We need not look beyond the statutory definition of battery. This

definition contains everything that the prosecution must prove:

 knowing or reckless conduct and

 causation of physical contact with another person in a manner that’s rude, insulting, or angry.

Kan. Stat. Ann. § 21-5413(a). The term person is elsewhere defined to

include an unborn child. See Kan. Stat. Ann. § 21-5419(c). Given that

definition, the government argues that the statutory definition of person

splits battery into two separate crimes. But definitional provisions don’t

ordinarily create separate elements.

The Kansas Supreme Court considered the impact of a definitional

provision in State v. Castleberry, 339 P.3d 795 (Kan. 2014). There the

defendant had been charged with distributing methamphetamine. Id. at 798.

The charge had arisen from two Kansas statutes. One statute criminalized

the distribution of controlled substances. Kan. Stat. Ann. § 21-36a05(a)(1)

(2009 supp.). Another statute defined distribute as an “actual, constructive

or attempted transfer.” Kan. Stat. Ann. § 21-36a01(d) (2009 supp.). Given

the two provisions, the court considered whether the State had needed to

prove all three statutory methods of distribution (actual, constructive, and 9 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 10

attempted). Castleberry, 339 P.3d at 189. This issue turned on whether the

methods of distribution constituted

 separate elements or

 different means of committing the same crime.

Id. at 808.

The Kansas Supreme Court characterized these as means of

committing the same crime rather than as separate elements to be proven.

Id. For this characterization, the court reasoned that

 the three statutory methods of distribution (actual, constructive, and attempted transfers) had come from a definitional provision and

 definitional provisions elaborating on elements don’t require separate proof.

Id. at 807–08.

Here the definitional provision (§ 21-5419(c)) doesn’t prohibit

anything, so one can’t be guilty of violating this provision. It serves only

to help interpret an element of the statute governing aggravated battery

(contact with another person). So the statute itself creates only a single

crime (aggravated battery) regardless of whether the victim is an

individual or a fetus. 3

3 The government points out that § 21-5419 contains exceptions. Appellees’ Resp. Br. at 29 (quoting Kan. Stat. Ann. § 21-5419(b)). The government’s point is unclear. The exceptions identify situations where the definitional provision doesn’t apply. But with or without exceptions, § 21- 5419 is only a definitional provision. 10 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 11

2. Kansas caselaw shows that the definitional provision creates means rather than elements.

But let’s assume for the sake of argument that uncertainty remains.

We’d then consider the state’s caselaw to determine whether jury

unanimity is required for classification of the victim. Mathis, 136 S. Ct. at

2249; United States v. Degeare, 884 F.3d 1241, 1251 (10th Cir. 2018); see

p. 8, above. If the jury must unanimously agree on whether the victim is a

fetus or individual born alive, the victim’s classification would generally

constitute an element; if jury unanimity isn’t required, we’d generally

consider aggravated battery a single crime regardless of the victim’s

classification. Degeare, 884 F.3d at 1252.

No one has suggested that Kansas law requires a jury to unanimously

decide whether the victim was born alive. So we’d ordinarily consider the

victim’s classification as a means rather than an element.

Though jury unanimity isn’t required for the victim’s classification,

the government insists on the existence of distinct crimes under State v.

Seba, 380 P.3d 209 (Kan. 2016). There the defendant was convicted of two

counts of murder: one for killing a pregnant woman, the other for killing

the woman’s unborn child. Id. at 213. The count involving the unborn child

stemmed from the definitional provision, which stated that the term person

includes an unborn child. Id. (quoting Kan. Stat. Ann. § 21-5419(a)(2)

(2015 supp.)). But the defendant wasn’t charged with violating the

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definitional provision. He couldn’t violate the definitional provision

because it didn’t criminalize anything; it just clarified the meaning of a

statutory term. See Kan. Stat. Ann. § 21-5419 (2015 supp.).

Granted, the definitional provision allowed the State to charge two

counts rather than one. But the existence of two counts doesn’t translate

into two separate crimes, for elements and units of prosecution are

“conceptually distinct.” United States v. Rentz, 777 F.3d 1105, 1117 (10th

Cir. 2015) (en banc) (Matheson, J., concurring). 4

Seba thus doesn’t show with certainty that the status of the victim

constitutes an element. And any remaining uncertainty would require us to

peek at the record “for the sole and limited purpose of determining whether

the listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256–57

(cleaned up). But the parties don’t suggest any value from peeking at the

record.

The government does argue that Mr. Adams had battered his

girlfriend rather than a fetus. But the identity of Mr. Adams’s victim

wouldn’t affect classification of the victim as an element or means. Given

4 The government points out that the Kansas legislature enacted § 21- 5413 and § 21-5419 at different times. But separate passage doesn’t mean that the sections create separate crimes. Section 21-5419 serves only to further define the term person for existing criminal provisions (including the existing provision for aggravated battery). See Kan. Stat. Ann. § 21- 5419(c).

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the resulting uncertainty, we consider the classification of the victim as

simply a means of committing a single crime (aggravated battery). See

pp. 8–9, above.

IV. The guideline for a crime of violence covers only crimes against individuals born alive.

Because aggravated battery in Kansas constitutes only a single crime,

we must determine whether commission of that crime would always

constitute a crime of violence under the federal sentencing guidelines. As

noted, Kansas’s crime of aggravated battery is committed whenever the

victim is either an individual or a fetus. See Part III(B), above. So we must

consider whether the guidelines’ definition of a crime of violence includes

crimes against fetuses. The guideline definition covers crimes against

persons. See Part I, above. In this context, does person include a fetus? To

answer, we look to the Dictionary Act. 5 There, the term person refers only

to an individual born alive.

The Dictionary Act contains a provision bearing on the meaning of

administrative regulations like the sentencing guidelines: 1 U.S.C. § 8(a).

5 Mr. Adams also argues that we should consider the Model Penal Code, dictionary definitions, and the common law. Although Mr. Adams uses these sources to support our conclusion, we need not consider them because the Dictionary Act sufficiently clarifies the meaning of the term person. We decline to consider these additional arguments for reversal, “confin[ng] ourselves to deciding only what is necessary to the disposition.” Whitehouse v. Illinois Cent. Railroad Co., 349 U.S. 366, 372– 73 (1955).

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See Mistretta v. United States, 488 U.S. 361, 393–94 (1989) (stating that

the U.S. Sentencing Commission is an administrative agency of the United

States); Stinson v. United States, 508 U.S. 36, 45 (1993) (referring to the

sentencing guidelines as regulations). This provision states that the term

person “include[s] . . . every infant member of the species homo sapiens

who is born alive.” 1 U.S.C. § 8(a). At first glance, this definition appears

to exclude crimes from the guideline provision for crimes of violence when

the victims are not yet born. Kansas’s statute on aggravated battery

includes crimes against victims not yet born.

But the government argues that a list following the word includes is

ordinarily illustrative, not exhaustive. This argument overlooks the

purpose underlying the Dictionary Act’s definition of a person.

The original version of the Dictionary Act did not use the term

include or born alive. The House of Representatives amended the

Dictionary Act to specify that persons “include . . . [those] born alive.”

Born Alive Infants Protection Act of 2002, H.R. 2175, 107th Cong. (2002).

By amending the Act to cover those born alive, Congress was addressing a

controversy involving infants born alive after partial birth abortions. H.R.

Rep. No. 107-186, at 2 (2001). Through this amendment, Congress

clarified that an infant would be considered a person “regardless of

whether the infant [had] survived an abortion.” Id. at 3. In this context,

Congress used the word include to emphasize that the term person

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extended to any infant born alive, not to suggest that a fetus could be a

person without being born alive.

Case law confirms this reading of the Dictionary Act. The two

circuits to interpret the Dictionary Act have held that § 8 defines person in

a way that excludes fetuses. United States v. Montgomery, 635 F.3d 1074,

1086 (8th Cir. 2011); Gomez Fernandez v. Barr, 969 F.3d 1077, 1087 (9th

Cir. 2020). 6

So the Dictionary Act supports interpretation of the sentencing

guideline for crimes of violence to exclude crimes against fetuses, and

Kansas’s crime of aggravated battery can be committed against fetuses.

The Kansas crime would thus ordinarily include at least some conduct not

covered by the guideline.

The government suggests that this analysis creates an anomaly.

Because § 21-5419 also applies to Kansas’s murder statutes, the

government suggests that this analysis takes even a crime like first-degree

murder outside the definitional bounds of a crime of violence. But other

circuits have held that some state murder statutes fall outside the

sentencing guidelines’ provisions for a crime of violence. See, e.g., United

6 None of our precedential opinions have squarely addressed whether the statutory term person includes fetuses. But in an unpublished opinion, we interpreted the Dictionary Act to “suggest[] that the statutory term ‘individual’ applies only after birth.” Sheff v. U.S. Dep’t of Justice–Civil Div., 734 F. App’x 540, 542 (10th Cir. 2018) (unpublished). 15 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 16

States v. Vederoff, 914 F.3d 1238, 1248 (9th Cir. 2019) (“[S]econd-degree

murder under Washington law is not a crime of violence under . . .

U.S.S.G. § 4B1.2(a)(2).”); United States v. McCollum, 885 F.3d 300, 309

(4th Cir. 2018) (holding that federal conspiracy to commit murder in aid of

racketeering was not a crime of violence under § 4B1.2(a)).

Ultimately, though, we need not concern ourselves with the

guidelines’ classification of murder. Our issue involves aggravated battery,

not murder. Even if the classification of murder is counterintuitive, the

categorical approach can sometimes generate counterintuitive results. See

United States v. Escalante, 933 F.3d 395, 406 (5th Cir. 2019) (“[T]he

categorical approach has developed a reputation for crushing common

sense in any area of the law in which its tentacles find an inroad.”); United

States v. Castillo, 36 F.4th 431, 444 (2d Cir. 2022) (stating that if the

court’s decision creates the anomalous result that attempted assault is not a

crime of violence, the anomaly would “result[] at least in part from the

rigidity of the categorical approach”). 7

7 Mr. Adams points out that the guidelines treat murder as an enumerated offense that always constitutes a crime of violence. U.S.S.G. § 4B1.2(a)(2). The government doesn’t disagree, but this provision applies only if the criminal statute matches the generic definition of murder. United States v. O’Connor, 874 F.3d 1147, 1151 (10th Cir. 2017). We need not decide whether the generic definition of a hypothetical statute on first- degree murder would encompass the killing of a fetus. Cf. Gomez Fernandez v. Barr, 969 F.3d 1077, 1087 (9th Cir. 2020) (concluding “that the federal generic definition of murder, as reflected in [the federal murder statute, 18 U.S.C. § 1111], excludes the killing of an unborn fetus”). For 16 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 17

Despite the occasional anomalies from the categorical approach, its

application here is straightforward: The Kansas statute expressly allows a

conviction of aggravated battery when the victim is a fetus, and the federal

sentencing guidelines define batteries as crimes of violence only when the

victim had been born alive. A mismatch thus exists between the elements

of the state crime and the guidelines’ definition of a crime of violence. So

aggravated battery is not a crime of violence.

V. Kansas’s criminal statute unambiguously covers aggravated battery against fetuses.

The government argues that if someone batters a fetus, the battery

would almost certainly victimize the pregnant mother and this battery

would necessarily include the use of force against another person. But this

argument would not affect our application of the categorical approach.

Battery against the pregnant woman and the fetus would constitute

two incidents of the same crime. One of those (the battery against the

pregnant woman) would presumably constitute a crime of violence. But

that’s not the issue here: we must consider the minimum conduct that

would permit a conviction. So our issue is whether the State would

consider the other incident (the battery against the fetus) as an aggravated

example, if a first-degree murder statute were to outlaw both the killing of a fetus and an individual born alive, the guidelines might not consider the offense a crime of violence. But this is a function of the categorical approach, which sometimes leads to odd outcomes. See text accompanying note. 17 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 18

battery. The State would consider that offense an aggravated battery

because § 21-5413 unambiguously treats fetuses as persons under the

aggravated-battery statute. See Part I, above. Given the clarity of Kansas

law, “no legal imagination is required to see that” someone could be

convicted under § 21-5413 for aggravated battery against a fetus. United

States v. Titties, 852 F.3d 1257, 1274–75 (10th Cir. 2017).

The government’s example from State v. Seba is instructive. See

Part III(B)(2), above. There the victims included both a pregnant woman

and her fetus, so the defendant was convicted of two incidents of murder.

380 P.3d 209, 220 (Kan. 2016). The murder of the woman would

presumably constitute a crime of violence. But the killing of the fetus

constituted a separate incident of murder under Kansas law. Id.

The existence of two criminal acts matters because we must consider

not just the aggravated batteries that would unambiguously qualify as

crimes of violence, but also the minimum conduct that would permit a

conviction under the Kansas law. See Moncrieffe v. Holder, 569 U.S. 184,

190–91 (2013). That conduct included harm to fetuses, which

unambiguously fell within Kansas’s statute on aggravated battery.

The government’s argument thus proves little. If someone batters

both a fetus and the mother, one of the batteries might constitute a crime of

violence but the other battery wouldn’t. So the Kansas statute sweeps

beyond the guidelines’ definition of a crime of violence. Given the

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mismatch between the Kansas crime and the guideline, the court shouldn’t

have applied the guideline for crimes of violence. We thus vacate the

sentence and remand for resentencing. 8

8 Because we vacate the sentence based on a categorical mismatch, we need not address Mr. Adams’s alternative argument relying on the absence of an element involving physical force. 19