Issue: The issue we resolve on appeal is whether Mr. Wray’s prior conviction for “Sexual Assault – 10 Years Age Difference” under Colo. Rev. Stat. § 18-3-402(1)(e) constitutes a “crime of violence” as that phrase is used in U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2.
At his sentencing the government argued, and the district court agreed, that Mr. Wray’s former conviction for Sex Assault, was either: (1) is a “forcible sex offense” under to Application Note 1, or (2) comes within the residual clause of § 4B1.2(a)(2) (i.e., is one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”)
The Tenth Circuit disagreed and found it is not a COV:
The commission of a strict liability offense, while potentially posing a serious risk of physical injury, does not involve purposeful, violent, or aggressive conduct. In other words, the commission of such an offense does not involve a risk that is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Begay, 553 U.S. at 143. Accordingly, where a defendant’s prior conviction is for a strict liability offense, the Begayexception applies and the conviction is outside the scope of the residual clause.