The opinion filed on July 23, 2010, and published at 612 F.3d 1131 (9th Cir.2010), is hereby amended.
MILAN D. SMITH, JR., Circuit Judge:
We address whether a conviction under Oregon's second-degree assault statute, Or.Rev.Stat. § 163.175(1)(b), is a "crime of violence" under the Sentencing Guidelines' "residual clause," U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (2008) (hereinafter U.S.S.G.). We hold that it is, and we affirm.
On February 13, 2009, Uhuru Navanda Crews pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court assigned Crews a base offense level of twenty-four, based on two prior convictions. See U.S.S.G. § 2K2.1(a)(2). Pursuant to section 2K2.1(a)(2), a defendant is assigned a base offense level of twenty-four if he has previously sustained "at least two felony convictions of either a crime of violence or a controlled substance offense." Id.
Crews concedes that his 1998 conviction for delivery of a controlled substance under Oregon Revised Statutes section 475.840
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a conviction constitutes a "crime of violence" under the Sentencing Guidelines. United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005).
Section 2K2.1 of the Guidelines defines "crime of violence" as that term is defined in the career offender Guideline, section 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Section 4B1.2, in turn, sets forth three different provisions defining the term "crime of violence." Id. § 4B1.2(a)(1), (2) & cmt. n. 1. The provision Crews focuses on, and that which we find most germane to whether subsection (1)(b) of Oregon's second-degree assault statute constitutes a "crime of violence," is Guidelines section 4B1.2(a)(2).
Id. § 4B1.2(a)(2) (emphasis added). The italicized language is referred to as the "residual clause."
Crews was convicted under subsection (1)(b) of Oregon's second-degree assault statute, which punishes "[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon." Or.Rev.Stat. § 163.175(1)(b). Second-degree assault in Oregon is a "Class B" felony punishable by a maximum of ten years imprisonment. See Or.Rev.Stat. §§ 161.605, 163.175(2). Therefore, Crews's prior conviction meets the threshold requirement for a "crime of violence" since it is "punishable by imprisonment for a term exceeding one year." U.S.S.G. § 4B1.2(a).
"We use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 [110 S.Ct. 2143, 109 L.Ed.2d 607] (1990), to determine whether a defendant's prior conviction satisfies the Guidelines definition of a crime of violence." United States v. Esparza-Herrera, 557 F.3d 1019, 1022 (9th Cir.2009) (per curiam). Under this approach, "we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We thus compare the statutory definition of the underlying offense to the Guidelines definition of "crime of violence." United States v. Carson, 486 F.3d 618, 619-20 (9th Cir.2007) (per curiam). Therefore, we must ask whether "[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon," Or.Rev.Stat. § 163.175(1)(b), "otherwise involves conduct that presents a serious potential risk of physical injury to another," U.S.S.G. § 4B1.2(a)(2).
The Supreme Court's recent decision in Begay v. United States sets forth a two-step approach to our inquiry.
We have little trouble concluding that "[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon," clearly presents a serious potential risk of physical injury to another. Oregon law defines both a "dangerous weapon" and a "deadly weapon" as an "instrument ... capable of causing death or serious physical injury." Or.Rev.Stat. § 161.015(1), (2). In addition, to be convicted under the statute, the state must prove that the defendant in fact caused the victim physical injury. See State v. O'Hara, 152 Or.App. 765, 955 P.2d 313, 315 (1998). Hence, "the statute itself contemplates bodily harm to the victim as a prerequisite to conviction." Johnson, 587 F.3d at 211.
Prior to Begay, we concluded our inquiry after addressing only step one. See, e.g., Carson, 486 F.3d at 620. However, after Begay we must make a second inquiry: whether the state offense is "roughly similar, in kind as well as in degree of risk posed," to the enumerated offenses that appear at the beginning of the residual clause—burglary of a dwelling, arson, extortion, and crimes involving the use of explosives. Begay, 553 U.S. at 143, 128 S.Ct. 1581; United States v. Alderman, 601 F.3d 949, 952 (9th Cir.2010); accord United States v. Smith, 544 F.3d 781, 784 (7th Cir.2008) (noting that after Begay "a finding that the offense poses a serious risk of physical injury to another is a necessary, but not sufficient, condition" for the offense to fall within the scope of the residual clause); United States v. Roseboro, 551 F.3d 226, 233 (4th Cir.2009) (holding that Begay rejected that circuit's earlier approach under which "an offense presented a serious potential risk of physical injury to another if the offense conduct had the potential for serious physical injury to another"), abrogated on other grounds by United States v. Rivers, 595 F.3d 558 (4th Cir.2010). In order to determine whether the state offense is "roughly similar" to the enumerated offenses, we ask whether the state offense "typically involve[s] purposeful, violent, and aggressive conduct." Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted); Alderman, 601 F.3d at 952-53.
Focusing on this second step of the analysis, Crews argues that a conviction under Oregon Revised Statutes section 163.175(1)(b) does not "involve purposeful, violent, and aggressive conduct." Specifically, Crews takes issue with the "purposeful" requirement, arguing that section (1)(b) punishes "knowing" conduct, which
In Begay, the Supreme Court addressed whether driving under the influence of alcohol is the sort of purposeful, violent, and aggressive conduct that fits within the scope of the residual clause, and held that it is not. 553 U.S. at 148, 128 S.Ct. 1581. While the Court did not specifically define "purposeful," it explained that this type of conduct characterized crimes committed by the armed career criminal, and noted that the ACCA was especially concerned with "the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun." Id. at 146, 128 S.Ct. 1581. The Court reasoned that when a prior offense involves purposeful, violent, and aggressive conduct—conduct that is "characteristic of [crimes committed by] the armed career criminal," id. at 145, 128 S.Ct. 1581 (internal quotation marks omitted)—the perpetrator is more likely to engage in similar future conduct, id. at 148, 128 S.Ct. 1581. That is, having once been involved in "purposeful, violent, and aggressive conduct," it is "more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Id. at 145, 128 S.Ct. 1581; accord id. at 146, 128 S.Ct. 1581 ("In order to determine which offenders fall into this category, the Act looks to past crimes ... because an offender's criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun.").
The Court juxtaposed the kind of conduct that typifies the armed career criminal with that which does not. Under this latter category it placed strict liability crimes and crimes involving only accidental, negligent, or reckless conduct. It listed crimes which, "though dangerous, are not typically committed by those whom one normally labels `armed career
Following Begay, our sister circuits have similarly held that crimes involving only negligent or reckless mens reas do not fall within the residual clause. See, e.g., Roseboro, 551 F.3d at 242-43 (holding that, to the extent a South Carolina violation for failing to stop for a blue light required only negligent conduct, it is not a violent felony under Begay); Baker, 559 F.3d at 453 (holding that Tennessee's reckless endangerment statute is not a crime of violence under Begay); Gray, 535 F.3d at 131-32 (same with respect to New York reckless endangerment statute because it "does not criminalize purposeful or deliberate conduct"); Smith, 544 F.3d at 786 (holding that "those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA"); United States v. Herrick, 545 F.3d 53, 60 (1st Cir.2008) (holding that vehicular homicide involving criminal negligence is not a crime of violence under Begay).
With Begay's analysis in mind, we hold that subsection (1)(b) of Oregon's second-degree assault statute clearly involves "purposeful, violent, and aggressive conduct." The subsection applies when a defendant acts more than just negligently or recklessly, and punishes assaultive conduct when the "defendant was aware of the assaultive nature of his conduct." See Barnes, 986 P.2d at 1167. To be sure, to act knowingly in Oregon does not require knowledge that physical injury could possibly occur as a result of particular conduct, or conscious disregard of risks associated with that conduct. See State v. Jantzi, 56 Or.App. 57, 641 P.2d 62, 63-64 (1982) (holding that where defendant knew he had a dangerous weapon and it was possible that an injury would occur, he acted recklessly, not knowingly, under Oregon law), abrogated on other grounds by State v. Boone, 294 Or. 630, 661 P.2d 917 (1983) and State v. Cook, 163 Or.App. 578, 989 P.2d 474 (1999), as recognized in State v. McNair, 179 Or.App. 308, 39 P.3d 284, 288 (2002). Rather, to act knowingly in Oregon is to act with the awareness that one's conduct is of the nature described in the statute. See Or.Rev.Stat. § 161.085(8); Barnes, 986 P.2d at 1167. Acting with an awareness of the assaultive nature of one's conduct is sufficiently "purposeful, violent, and aggressive" under Begay to fall within the residual clause. Indeed, the conduct described in subsection (1)(b)—conduct of an assaultive nature carried out by means of a deadly or dangerous weapon—is exactly the type of conduct that characterizes armed career criminals and repeat violent offenders and is the type of conduct that the Court in Begay deemed "relevan[t] to the possibility of future danger with a gun." Begay, 553 U.S. at 146, 128 S.Ct. 1581.
We note that while Begay considered "the particular statutory provision" before
In arguing that his crime was not "purposeful" because he was "convicted of assault without any proof that he acted with any purpose, or with any awareness of the potential result of his conduct," Crews misinterprets Begay's "purposeful conduct" requirement in three ways. First, while the enumerated offenses that appear at the beginning of the residual clause require more culpable mens reas than recklessness or negligence, none of them requires any proof that the offender acted with any particular purpose to injure another person. See United States v. Dismuke, 593 F.3d 582, 592 (7th Cir.2010) (noting that none of the enumerated crimes "require that the offender act with the specific purpose of inflicting physical harm on another"). Thus, to be "roughly similar" to the enumerated offenses, it is not necessary that a crime be committed with specific intent.
Second, Begay held that crimes would be sufficiently similar to the enumerated crimes to fall within the residual clause if they "typically involve purposeful, violent, and aggressive conduct." Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted) (emphasis added). Indeed, under our categorical approach, section 163.175(1)(b) would fall within the residual clause "even if, on some occasions, it can be committed in a way that poses no serious risk of physical harm." Id. at 141, 128 S.Ct. 1581 (citing James, 550 U.S. at 208-09, 127 S.Ct. 1586, for that proposition) (emphasis in original). We have no doubt that the offense for which Crews was convicted—knowingly causing physical injury to another by means of a deadly or dangerous weapon—typically involves purposeful conduct. Although we could find no Oregon cases directly addressing the issue, we presume that, to be convicted under section 163.175(1)(b), a defendant must have known both (1) that he engaged in assaultive conduct and (2) that he used an instrument capable of causing death or serious physical injury. See Or.Rev.Stat. 161.085(8) (defining "knowingly" as "act[ing] with an awareness that the conduct of the person is of a nature [described in the statute] or that a circumstance [described in the statute] exists" (emphasis added)); cf. Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886, 1891, 173 L.Ed.2d 853 (2009) ("[C]ourts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word `knowingly' as applying that word to each element."). We have trouble imagining a circumstance in which a person could knowingly use a dangerous weapon to assault another person without
Third, Begay made clear that the residual clause applies to offenses involving "the deliberate kind of behavior associated with violent criminal use of firearms." Begay, 553 U.S. at 147, 128 S.Ct. 1581. In noting that the enumerated offenses all "typically involve purposeful, violent, and aggressive conduct," the Begay Court explained that the conduct involved in those offenses "is such that it makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim." Id. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted). Crews ignores the obvious fact that "knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon," Or.Rev.Stat. § 163.175(1)(b), likewise involves conduct associated with such future danger. See Begay, 553 U.S. at 146, 128 S.Ct. 1581 (assessing "a crime's relevance to the possibility of future danger with a gun").
Our recent decision in Coronado does not compel a different conclusion here. There, we addressed whether, in light of Begay, a conviction under California Penal Code § 246.3 for discharging a firearm with gross negligence was a crime of violence under the residual clause. Coronado, 603 F.3d at 708. We held it was not, because the state statute "only requires gross negligence, and crimes with a mens rea of gross negligence or recklessness do not satisfy Begay's requirement of `purposeful' conduct." Id. at 710.
Arguably, our decision in Coronado contains language suggesting that only crimes involving specific intent satisfy Begay's "purposeful" requirement. See id. at 711. There, we noted that in "other contexts" we have defined "purposeful" as "done with a specific purpose in mind; DELIBERATE." Id. (internal quotation marks omitted). But in those other contexts, we had no occasion to consider the issue presented here: Whether knowingly causing physical injury to another by means of a deadly or dangerous weapon satisfies Begay's "purposeful" requirement. Rather, in those contexts, we considered whether crimes committed with gross negligence or recklessness were sufficiently purposeful and concluded they were not. Id. at 710; Fernandez-Ruiz, 466 F.3d at 1129-30. Today we reaffirm that more than recklessness or gross negligence is required, and more specifically hold that Begay can be satisfied by knowing conduct.
In addition, we note that every circuit to have addressed the issue has held that Begay's "purposeful conduct" requirement is satisfied where the underlying state offense requires the defendant to act knowingly. See Johnson, 587 F.3d at 211 (holding that, to the extent simple assault under
In sum, because a violation of subsection (1)(b) of Oregon's second-degree assault statute, Or.Rev.Stat. § 163.175(1)(b), presents a serious potential risk of physical injury to another and "typically involve[s] purposeful, violent, and aggressive conduct," Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted), we hold that it is categorically a crime of violence under Guidelines section 4B1.2(a)(2).
Model Penal Code § 2.02(2)(b).
