After the prosecution and defense were in unusual agreement that a trial judge misapplied the law when determining if a prior conviction amounted to a violent crime, the federal appeals court based in Denver agreed this month that the defendant’s sentence could not stand.

Kenneth Devereaux pleaded guilty in 2022 to the federal offense of being a felon in possession of a firearm and ammunition after Larimer County law enforcement investigated a domestic violence dispute and found a shotgun with an obliterated serial number in Devereaux’s home. Heading into his sentencing hearing, Devereaux’s imprisonment range was 57 to 71 months.

Even though all parties believed Devereaux’s prior assault conviction did not qualify as a violent crime increasing his sentencing range, U.S. District Court Senior Judge Raymond P. Moore disagreed with everyone — boosting the maximum possible sentence by 16 months.

On Feb. 6, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit confirmed the parties were correct and Moore was mistaken.

Devereaux’s prior assault conviction “categorically does not have as an element the use, attempted use, or threatened use of physical force,” wrote Senior Judge David M. Ebel in concluding the offense was not a violent crime after all.

The disagreement between Moore and the parties stemmed from how the U.S. Supreme Court’s precedent treats prior convictions that may be violent. Judges must strictly look to the legally-defined elements of the prior offense to see whether they fit the definition of a violent crime — known as the “categorical approach.”

The purpose, Justice Elena Kagan wrote in a 2016 Supreme Court decision, is to prevent judges from looking into the facts of a prior conviction — which is the jury’s role — and determining what happened for themselves. Furthermore, a defendant may decline to challenge non-essential details when agreeing to a plea deal, meaning the underlying narrative could contain inaccuracies that only gain significance during a subsequent conviction.

“Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence,” Kagan wrote.

However, the Supreme Court acknowledged that if there are alternative elements to the crime, judges employ a “modified” approach, looking at the underlying documents in the prior case to determine the scope of the defendant’s conviction and whether it amounted to violent crime.

In Devereaux’s case, he previously pleaded guilty to the federal offense of assault. Appearing at his sentencing for the subsequent gun crime, the prosecution and the defense understood the prior conviction did not amount to a violent crime. A pre-sentencing report from probation officials confirmed as much.

“What bothers me, and what bothered me in this case, is that there were a couple of matters that might be considered to be crimes of violence,” Moore told the parties. 

He elaborated that assault, to him, takes on “a variety of different meanings,” ranging from “intentional striking” to “unwanted touching.”

Moore suggested he could take the modified approach, looking at documentation from Devereaux’s assault case. Doing so would “not come out in a way that Mr. Devereaux would want,” Moore said, due to the seriousness of the charge.

Devereaux’s lawyer responded that the 10th Circuit had already concluded, as a categorical matter, the specific assault offense at issue was not a violent crime.

“It is rare that I am in a position where there’s a 10th Circuit opinion that seems to definitively offer an answer, and everyone in the court is in agreement with it,” said public defender Stephanie Snyder.

Moore ultimately elected to view the prior conviction as a violent crime and increased Devereaux’s sentencing range. After accounting for various factors, Moore handed down a five-year sentence.

Devereaux appealed to the 10th Circuit, arguing Moore should have found, as a categorical matter, the assault was not a violent crime. Although there are means of committing an assault that are more serious than others, the elements of the offense remain the same. The U.S. Attorney’s Office agreed with that logic.

Because Devereaux’s prior conviction was “a single indivisible assault offense,” Ebel wrote, the parties were correct that it was categorically not a violent crime. The panel ordered a resentencing for Devereaux without the violent crime enhancement.

The case is United States v. Devereaux.