Colo. 3rd-degree Assault a COV under USSG 4B1.2

U.S. v. Paxton, 2005 WL 2176031 (9/9/05) - Colorado third degree assault is a crime of violence as defined under U.S.S.G. § 4B1.2(a)(2), even though it could be committed by causing mental, rather than physical, impairment. Conduct that causes mental impairment creates a "serious potential risk of physical injury to another, " especially since the threats that would be third degree assaults must cause more than just fright or shock. Such conduct is likely to incite an exchange that culminates in physical violence. There was harmless non-constitutional Booker error because the d.ct. sentenced the defendant above the lowest end of the guideline range.