Tuesday, January 24, 2017

Oklahoma Assault and Battery with a Deadly Weapon is a Crime of Violence

U.S. v. Taylor, 2016 WL 7187303 (12/12/16) (Okla.) - The Tenth applies the modified categorical approach to determine that Taylor's prior Oklahoma conviction of assault and battery with a dangerous weapon is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1). The Okla. statute criminalizes an intentional attempt or threat to commit violence on another that is either an attempted-battery assault or an apprehension-causing assault with a weapon capable of causing great bodily harm. The court points out that this Okla. offense is similar to New Mexico's apprehension-causing assault with a deadly weapon and the offenses have similar "deadly weapon" definitions. Under Ramon Silva, 608 F.3d 663 (10th Cir. 2010), a statute criminalizing "purposely threatening ... a victim [ ] with a weapon capable of causing death or great bodily harm" is a crime of violence. Regardless of the type of "dangerous weapon" used, the use of a "dangerous weapon" during an assault or battery always has a sufficient threat of force to satisfy the § 4B1.2(a)(1) elements clause.