United States v. Howell

Defendant plead guilty to possession of a firearm by a convicted felon. The district court concluded that defendant's prior conviction for assault under Texas Penal Code 22.01(a)(1), (b)(2)(B), constituted a "crime of violence" within the meaning of USSG 4B1.2(a). Thus, the district court enhanced defendant's base offense level under USSG 2K2.1(a)(3) and sentenced defendant to 100 months in prison. The court concluded that defendant's prior Texas assault offense “has as an element the use, attempted use, or threatened use of physical force against the person of another,” within the meaning of section 4B1.2(a)(1) of the Guidelines. To obtain a conviction for the least culpable Texas offense for which defendant was convicted, a jury would be required to find the defendant recklessly caused bodily injury committed by recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. It is difficult to conceive of how applying pressure to either a person’s throat or neck in a manner that resulted in “impeding the normal breathing or circulation” could not involve the use of physical force. The same is true of blocking a person’s nose or mouth resulting in “impeding the normal breathing or circulation of the blood of the person.” Accordingly, the court affirmed the judgment. View "United States v. Howell" on Justia Law