United States District Court, D. Arizona
Honorable G. Murray Snow, Judge
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.
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. 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.
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.
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).
defense moves to dismiss Count Four because neither Count One
nor Count Two are “crimes of violence” under
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. 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
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.
with a dangerous weapon is a crime of violence. See
United States v.
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 ...