Tuesday, November 28, 2017

Perez-Vargas and Rodriquez-Enriquez ABROGATED!

United States v. Ontiveros, 2017 WL 5147257 (November 7, 2017) (CO) (J. Kelly)(published): The panel decides that United States v. Castleman, 134 S.Ct. 1405 (2014), abrogates its earlier opinions in United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005) and United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008). It uses Castleman’s holding - which the Supreme Court limited specifically to misdemeanor domestic violence offenses - to apply to felony crimes of violence. Any felony offense which requires the knowing or intentional causation of bodily injury necessarily involves the use of physical force. By expanding Castleman, the panel allowed itself the following logic: “If it is impossible to commit battery without applying force, and battery can be committed by an omission to act, then second-degree [Colorado] assault must also require physical force.” Thus, a Colorado assault conviction in which a son has neglected to care for his father, is now an offense perpetrated with the use of violent, physical force.