from the United States District Court for the District of New
Mexico (D.C. No. 1:18-CR-00585-JAP-1)
A. Pori, Assistant Federal Public Defender, Albuquerque, New
Mexico, for the Defendant-Appellant.
Ong, Assistant United States Attorney (Dustin C. Segovia,
Assistant United States Attorney, and John C. Anderson,
United States Attorney, District of New Mexico), Office of
the United States Attorney, Albuquerque, New Mexico, for the
MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
James Gonzales pleaded guilty to possessing a firearm after a
felony conviction. See 18 U.S.C. § 922(g)(1).
The district court sentenced him to 27 months'
imprisonment and 3 years of supervised release. In selecting
this sentence, the court enhanced the base-offense level
under Sentencing Guideline § 3A1.2(c)(1), which applies
when the defendant assaults a law-enforcement officer during
the course of the offense. But the court erred in
interpreting § 3A1.2(c)(1), so we reverse.
While fleeing from Albuquerque police officers, Mr. Gonzales
pulls a firearm and drops it.
sentencing issue springs from a 2018 confrontation between
Mr. Gonzales and Albuquerque police officers. While trying to
arrest Mr. Gonzales on outstanding warrants, the police
officers conducted a traffic stop. After the cars came to a
stop, the officers approached and Mr. Gonzales ran away.
Detective Eric Endzel closed in, Mr. Gonzales lifted up his
shirt and pulled a gun. According to Detective Endzel, Mr.
Gonzales briefly applied a "firing grip" but then
dropped the gun. R. vol. 4, at 19. After dropping the gun,
Mr. Gonzales reached forward, but he was unable to grab the
gun and it fell to the ground. Detective Endzel believed that
Mr. Gonzales was trying to hold onto the gun. Mr. Gonzales
contends that the evidence also supported a finding that he
had intentionally discarded the gun.
Section 3A1.2(c)(1) requires proof of an intent to
instill fear of bodily harm.
district court ruled that
• Mr. Gonzales had failed to present evidence regarding
his intent and
• § 3A1.2(c)(1) had no intent requirement.
reasoning reflects an erroneous interpretation of §
engage in de novo review of the district court's
interpretation of this guideline provision. United States
v. Robertson, 350 F.3d 1109, 1112 (10th Cir. 2003). In
applying de novo review, we consider (1) the guideline's
language and scholarly commentaries on the common-law
definition of assault, (2) our case law defining the crime of
assault, and (3) other circuits' interpretations of
The Common-Law ...