United States v. Bigbeaver

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2026
• Docket: 25-5656
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-5656 D.C. No. Plaintiff - Appellee, 4:24-cr-00099-BMM-1 v. MEMORANDUM* JOHN LEE BIGBEAVER,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted June 11, 2026 Portland, Oregon

Before: CHRISTEN, HURWITZ, and BADE, Circuit Judges.

John Lee Bigbeaver pleaded guilty to felony child abuse, in violation of 18

U.S.C. § 1153(a) and Mont. Code Ann. §§ 45-5-512(1), (2)(b)(i), and assault

resulting in substantial bodily injury to an individual under the age of sixteen, in

violation of 18 U.S.C. §§ 1153(a) and 113(a)(7). He challenges the sentencing

court’s application of Sentencing Guideline § 2A2.2, which applies to conduct that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. constitutes aggravated assault. See U.S. Sent’g Guidelines Manual § 2A2.2 (U.S.

Sent’g Comm’n 2024) (“U.S.S.G.”). We have jurisdiction under 28 U.S.C. § 1291

and review the district court’s interpretation of the Guidelines de novo. United States

v. Castillo, 69 F.4th 648, 652 (9th Cir. 2023). We affirm.

The Statutory Index in Appendix A of the Guidelines instructs the sentencing

court to calculate the base offense level for Bigbeaver’s statute of conviction, 18

U.S.C. § 113(a)(7), under U.S.S.G. § 2A2.3. See U.S.S.G. app. A. But § 2A2.3

requires the court to apply U.S.S.G. § 2A2.2 instead “[i]f the conduct constituted

aggravated assault.” Id. § 2A2.3(c). The Guidelines do not define “aggravated

assault.” See id. Instead, the commentary to § 2A2.2 defines “aggravated assault” to

include “a felonious assault that involved . . . strangling, suffocating, or attempting

to strangle or suffocate.” Id. § 2A2.2, cmt. n.1. It is undisputed that Bigbeaver

strangled his daughter. Following the commentary, the district court applied § 2A2.2

to calculate Bigbeaver’s base offense level.

Bigbeaver challenges the district court’s reliance on the commentary. We

apply the framework in Kisor v. Wilkie, 588 U.S. 558 (2019), “to determine whether

to defer to the commentary’s interpretation.” United States v. Trumbull, 114 F.4th

1114, 1117-18 (9th Cir. 2024), cert. denied, 145 S. Ct. 1952 (2025). Under Kisor,

“courts owe deference to an agency’s interpretation of its own rules where (1) the

regulation is genuinely ambiguous, (2) the interpretation is reasonable, and (3) the

2 25-5656 interpretation is entitled to controlling weight.” United States v. Yafa, 136 F.4th

1194, 1197 (9th Cir. 2025) (cleaned up). The definition of aggravated assault in the

commentary to § 2A2.2 satisfies these requirements.

a. The term “aggravated assault” is genuinely ambiguous. It is not defined

in the text of Guidelines, and neither party contends that the term has a “single

meaning . . . evident from [§ 2A2.2’s] text.” Id. at 1198. Aggravated assault

generally means “[c]riminal assault accompanied by circumstances that make it

more severe.” Assault, Black’s Law Dictionary (12th ed. 2024). But aggravated and

severe are “relative term[s] with . . . meaning[s] that may vary depending on the

context.” Trumbull, 114 F.4th at 1119. Thus, “uncertainty remains following a plain

reading of the term.” Yafa, 136 F.4th at 1198 (cleaned up).

The “structure, history, and purpose” of the Guidelines do not resolve the

ambiguity. Kisor, 588 U.S. at 575. The Guidelines instruct courts to apply the “cross

references in Chapter Two” based on “all acts and omissions committed . . . by the

defendant” during the commission of the offense, even if not an element of the

offense of conviction. U.S.S.G. § 1B1.3(a). Section “1B1.3’s broad

directive . . . adds further ambiguity” and “strongly suggests that [aggravated

assault] is not limited,” as Bigbeaver contends, to the offenses assigned to § 2A2.2

in the Statutory Index. Yafa, 136 F.4th at 1198.

3 25-5656 Bigbeaver argues that the Commission added strangulation to the definition

of aggravated assault in the commentary to § 2A2.2 to address only strangulation of

intimate partners. See U.S.S.G. supp. app. C, amend. 781 (Nov. 2014). The historical

record does not unambiguously reflect Bigbeaver’s limited view of Amendment 781.

See, e.g., id. (reason for amendment); Violence Against Women Reauthorization Act

of 2013, Pub. L. No. 113–4, 127 Stat. 54 (2013). Thus, “even after employing the

traditional tools of interpretation, a genuine ambiguity exists.” Yafa, 136 F.4th at

1198.

b. Therefore, we must determine whether the commentary’s definition of

aggravated assault is reasonable. See Kisor, 588 U.S. at 575-76. We conclude that it

is. If attempting to strangle an adult intimate partner is treated as aggravated assault,

see U.S.S.G. § 2A2.2(b)(4), then it is eminently reasonable that actual strangulation

of a child resulting in substantial bodily injury is also. Amendment 781 explained

that “almost all cases” involving strangulation occur “in the domestic violence

context,” see U.S.S.G. supp. app. C, amend. 781 (Nov. 2014), and domestic violence

has been defined in various statutes to include a parent’s assault on a child, see 18

U.S.C. § 117(b) (defining “domestic assault” as “an assault committed by a current

or former spouse, parent, child, or guardian of the victim”); U.S.S.G.

§ 2A6.2(b)(1)(C) (enhancement for strangulation during a violation of a protective

order pursuant to 18 U.S.C. § 2262). Several states expressly define strangulation as

4 25-5656 aggravated or felony assault. See Trumbull, 114 F.4th at 1119 (concluding that

definition in Guidelines commentary was reasonable because of similarity to state

definitions); Ark. Code Ann. § 5-13-204(a)(3); Cal. Penal Code § 273.5(a), (d); Ga.

Code Ann. § 16-5-21(a)(3); Me. Stat. tit. 17-A, § 208(1)(C); Minn. Stat. § 609.2247;

Neb. Rev. Stat. § 28-310.01; Tenn. Code Ann. § 39-13-102(a)(1)(A)(iv); Va. Code

Ann. § 18.2-51.6. Defining aggravated assault to include a felonious assault

involving strangulation is therefore consistent with the “text, structure, [and]

history” of the Guidelines. Kisor, 588 U.S. at 576.

c. Before deferring to a “reasonable agency reading of a genuinely

ambiguous rule,” we must consider whether the interpretation is entitled to

“controlling weight.” Id. An interpretation is entitled to controlling weight if it

“(1) constitutes the agency’s official position . . . (2) implicates the agency’s

substantive expertise, and (3) reflects the agency’s fair and considered judgment.”

Yafa, 136 F.4th at 1199 (cleaned up).

“The commentary is issued by the Commission as its official position” and

“implicates the Commission’s substantive expertise.” Id. It is not merely a

“convenient litigating position,” “post hoc rationalization advanced to defend past

agency action,” or “new interpretation . . . that creates unfair surprise.” Kisor, 588

U.S. at 578-79 (cleaned up). Amendment 781, which added strangulation to the

definition of aggravated assault in the commentary, was published in the Federal

5 25-5656 Register, another indication that it is entitled to controlling weight. See Trumbull,

114 F.4th at 1120-21.

AFFIRMED.

6 25-5656