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United States v. Blatchford

United States District Court, D. Arizona

June 7, 2017

United States of America, Plaintiff,
v.
Brandyn Paul Blatchford, Defendant.

          ORDER

          Honorable G. Murray Snow, Judge

         Pending before the Court is Defendant Brandyn Blatchford's Motion to Dismiss Count Four of the Indictment, (Doc. 40). For the following reasons, the Court denies the motion.

         BACKGROUND

         On the evening of April 5, 2016, Sergeant Curtis of the Navajo Police Department identified a victim of a violent assault, RW, at Fort Defiance Indian Hospital.[1] RW had sustained significant injuries to his head. He was brought to the hospital by two friends in a pick-up truck. Later that night, Brandyn Blatchford (“Blatchford”) was arrested for allegedly attacking RW with a hammer. Blatchford had a prior criminal record that included convictions for Sexual Abuse and Sexual Abuse of a Minor.

         Due to these prior convictions, Blatchford was required to register as a sex offender. As of January, 2016, Blatchford registered a home in New Mexico as his permeant address. The government asserts that this New Mexico home is not his true residence and that he actually splits his time between his mother and grandmother's homes in Arizona.

         Blatchford was charged in a four count indictment: Count One alleges that he committed assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3), Count Two alleges that he committed assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6), Count Three alleges that he failed to register as a sex offender in violation of 18 U.S.C. § 2250, and Count Four alleges that he committed a crime of violence while an unregistered sex offender in violation of 18 U.S.C. § 2250(c).

         The defense moves to dismiss Count Four because neither Count One nor Count Two are “crimes of violence” under Title 18.

         DISCUSSION

         Section 2250 does not define “crime of violence.” But, two other statutes within Title 18, §§ 16 and 924(c)(3) have virtually identical definitions of the term. The Court will thus apply the force provision of both definitions.[2] The force provision of Section 16 describes a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16. The force provision of § 924(c)(3) defines a crime of violence as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3). The Supreme Court has narrowed the definition of physical force by adding that the physical force proposed in the definition “the phrase ‘physical force' means violent force-that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010) (Johnson I).[3]

         Determining whether a crime is a crime of violence is a question of law for the court rather than a question of fact for the jury. See United States v. Amparo, 68 F.3d 1222, 1224 (9th Cir. 1995) (“The defendant asserts that whether this offense is a ‘crime of violence' is a question of fact for the jury to decide, and not a question of law for the judge. To the contrary this circuit has adopted a categorical approach to determining which offenses are included under section 924(c) as ‘crimes of violence' obviating the need for fact finding by the jury.”). The categorical approach requires courts to examine “the elements of the offense rather than the particular facts underlying the defendant's own conviction.” United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014). If it is determined that the offense criminalizes a “broader swath” of criminal activity than the criminal activity encompassed in the crime of violence definition, then a crime is not a crime of violence. Id. (internal quotations omitted). Therefore, “[a]n offense qualifies as a crime of violence in all cases or in none.” Id. (internal quotation omitted). For the following reasons, both Counts at issue in this case are crimes of violence.

         Assault with a dangerous weapon is a crime of violence. See United States v.

         Juvenile Female, 566 F.3d 943, 947-48 (9th Cir. 2009) (finding that “[a] defendant charged with the first variant, assault with a deadly or a dangerous weapon, must have always ‘threatened [the] use of physical force'” (quoting 18 U.S.C. § 16(a))). To successfully convict Blatchford of assault with a dangerous weapon, the government must prove, in relevant part that

First, the defendant assaulted [the victim] by intentionally striking or wounding him using a display of force that reasonably caused him to fear immediate bodily harm; Second, the defendant acted ...

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