Colo. 3rd-degree Assault Convictions are COVs for Purposes of USSG § 4B1.2(a)

U.S. v. Krejcarek, 2006 WL 1892573 (7/11/06) - The defendant's prior Colorado convictions for third degree assault were for crimes of violence as defined under U.S.S.G. § 4B1.2(a) for purposes of assigning a base offense level of 26 for possession of a sawed-off shotgun. Even though the assault statute provides for conviction for the causing of mental impairment, as opposed to bodily injury, a "potential serious risk of physical injury to another" is always associated with the offense. The defendant failed to prove his waivers of counsel when he pleaded guilty to those offenses were unintelligent or involuntary. Plus, [not surprisingly], he did not have the right to counsel to decide whether to waive counsel or the right to be advised at the plea that his crimes would be considered crimes of violence for federal sentencing purposes.

Most interestingly, the 10th holds that when a d.ct. departs downward pursuant to § 5K1.1 it may consider all sorts of factors, not just substantial assistance factors, in determining the amount of departure. The 10th makes this holding in support of its refusal to reverse a pre-Booker sentence. The 10th reasons the error in considering the guidelines mandatory was harmless because the court exercised complete discretion, unimpaired by the mandatory nature of the guidelines, in deciding how far to depart. It was not at all clear the d.ct. knew it had all that discretion.