Tenth Circuit – Kansas Aggravated Battery is not a Crime of Violence

In United States v. Adams, No. 21-3043 (10th Cir. July 20, 2022), the Tenth Circuit ruled recently that the Kansas offense of aggravated battery is not a “crime of violence,” as the term is defined by USSG § 4B1.1(a)(1). The court agreed with the FPD argument that Kansas aggravated battery is categorically broader than the guidelines definition of crime of violence in USSG § 4B1.2(a)(1) because the Kansas offense could be committed against a fetus (under KSA 21-5419(c)).

After Adams, no Kansas aggravated battery conviction will be a crime of violence under USSG § 4B1.2(a)(1). The Adams opinion noted that this same categorical argument may even apply to Kansas homicide offenses.

The court explained that 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.” USSG § 4B1.2(a)(1) (emphasis added). The court held: “[u]nder 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.” The court rested its holding on the definition of “person” from the Dictionary Act, which defines “person” to “include . . . every infant member of the species homo sapiens who is born alive.” 1 U.S.C. § 8(a).

Thus, because some Kansas aggravated batteries can be committed against a fetus, this offense falls outside the guidelines’ definition of a crime of violence in USSG § 4B1.2(a)(1). And no Kansas aggravated battery conviction can meet the guidelines definition of crime of violence.

This opinion has already had a major impact on sentences under USSG § 2K2.1. And it should serve as a reminder to engage in this categorical analysis of statutes to determine whether the statutory elements are broader than the guidelines definition of a particular enhancement (whether it be crime of violence, controlled substance offense, or the like).