Lewd Molestation Offense Not a Crime of Violence Under the Guidelines

United States v. Gieswein, 2018 WL 1789933 (10th Cir. 4/16/18) (Okla.) - the district court wrongly decided that the defendant's prior state lewd molestation conviction was a "crime of violence." The state offense was broader than 18 U.S.C. § 2241(c) and thus not a "forcible sex offense" under U.S.S.G. § 4B1.2(a)(2) app. n.1. Consequently, the district court imposed the sentence based on a miscalculated guideline range and procedurally erred. While this error normally would not be harmless, it is in this case because the district court, based on the defendant's horrific criminal history, imposed the statutory maximum sentence and indicated that it would have imposed a higher sentence if it could have. The Tenth decides it is clear the district court would have imposed the same sentence had it not erred by treating the lewd molestation offense as a "crime of violence."