Texas Assault of Public Servant is Not a Violent Offense
Deangelo Kelley fled from Houston police officers after they stopped a vehicle in which he was a passenger. He fired a gun while running away, but the round only struck the ground. It did, however, spook the officers who retreated and called in a canine and a helicopter. An officer found a Glock 17 9mm handgun with bullets in an extended magazine while the hunt for Kelley continued. Officers later found Kelley hiding in a tree and arrested him.
A federal grand jury later indicted Kelley for having been a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1), 924(a)(2). The district court conducted a bench trial and found him guilty of possessing a firearm that had travelled in interstate commerce despite having been previously convicted of a felony. A presentence report was ordered which calculated a guideline imprisonment range of 120 months. The court ultimately adopted the PSR aside from sustaining a single objection and sentenced him to 84 months of imprisonment.
Kelley appealed, and argued that the PSR incorrectly calculated his Base Offense Level because his prior convictions for attempted aggravated assault were not crimes of violence. U.S.S.G. 2K2.1(a)(3) provides for a base offense level of 22 if:
(A) the offense involved a (i0 semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]
The Fifth Circuit previously held that assault on a public servant in violation of Texas Penal Code 22.01(b)(1) was a crime of violence, but the Supreme Court has since held that “an offense requiring ‘the use of physical force against the person of another’ does not include offenses with a mens rea of recklessness.” Because Texas assault of a public servant can be committed recklessly, Kelley did not commit a crime of violence as defined by the Sentencing Guidelines and his sentence had to be vacated.