United States of America v. Dallas T. Maynard

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0130p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DALLAS T. MAYNARD,
Defendant-Appellant.
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No. 17-6057
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 7:17-cr-00005—Karen K. Caldwell, Chief District Judge.
Decided and Filed: July 3, 2018
Before: SILER, COOK, and WHITE, Circuit Judges.
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COUNSEL
ON BRIEF: Sebastian M. Joy, JOY LAW OFFICES, Catlettsburg, Kentucky, for Appellant.
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Appellee.
COOK, J., delivered the opinion of the court in which SILER and WHITE, JJ., joined.
WHITE, J. (pg. 5), delivered a separate concurring opinion.
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OPINION
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COOK, Circuit Judge. Dallas Maynard pleaded guilty to possessing an explosive as a
felon. The previous felony? Assault under extreme emotional disturbance in Kentucky. The
consequence? An increased base offense level under the Sentencing Guidelines. Agreeing with
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the district court that this prior conviction qualifies as a crime of violence, we AFFIRM
Maynard’s sentence.
I.
Maynard and others stole over 700 pounds of blasting agent from a Revelation Energy
job site. A grand jury indicted him on multiple counts and he pleaded guilty to one—possessing
an explosive as a felon, under 18 U.S.C. § 842(i)(1). Relying on Maynard’s prior convictions for
second-degree assault under extreme emotional disturbance in Kentucky and assault during the
commission of a felony in West Virginia, the Presentence Report calculated his base offense
level under the Sentencing Guidelines as 24. See U.S.S.G. § 2K1.3(a)(1).
Maynard contested this scoring. The base offense level should be 16, he argued, because
neither of the two underlying felony convictions is a “crime of violence.” Although the district
court sustained Maynard’s objection to the West Virginia offense, it overruled his objection
regarding the Kentucky one. With one felony conviction for a crime of violence instead of two,
Maynard’s base offense level dropped to 20, see U.S.S.G. § 2K1.3(a)(2); the court ultimately
sentenced him to a below-Guidelines 108 months’ imprisonment. Maynard appeals the district
court’s treating his Kentucky assault under extreme emotional disturbance as a crime of violence
and asks us to remand for resentencing.
II.
We give fresh review to the district court’s determination that a prior conviction
constitutes a crime of violence. United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). The
Guidelines label as a “crime of violence” any federal or state law offense punishable by more
than one year’s imprisonment that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). “We have not hesitated to
use authority interpreting the elements clause in the Armed Career Criminal Act in interpreting
the same phrase in the Guidelines.” United States v. Patterson, 853 F.3d 298, 305 (6th Cir.
2017); see 18 U.S.C. § 924(e)(2)(B)(i).

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To determine whether the Sentencing Guidelines’ elements clause covers the Kentucky
assault Maynard challenges, we apply a categorical approach and focus on the statutory
definition of the offense. See Patterson, 853 F.3d at 302. “If the statute requires proving that
someone used, attempted, or threatened to use physical force against another, it satisfies the
elements clause even if the statute does not match the elements clause word for word.” Id.
That’s what we have here. Kentucky’s assault under extreme emotional disturbance
statute reads:
(1) In any prosecution under KRS 508.010 [first-degree assault],
508.020 [second-degree assault] or 508.030 [fourth-degree assault] in which
intentionally causing physical injury or serious physical injury is an element of
the offense, the defendant may establish in mitigation that he acted under the
influence of extreme emotional disturbance, as defined in subsection (1)(a) of
KRS 507.020.
Ky. Rev. Stat. § 508.040. Maynard argues that a defendant need not have used force to be
convicted of this crime. But the statute’s plain language requiring that the defendant
intentionally cause a physical injury in committing the underlying assault reads otherwise.
We also make quick work of Maynard’s contention that the statute excuses the
intentional nature of the assault and therefore somehow does not qualify as a crime of violence.
Holding that assault under extreme emotional disturbance is a violent felony under the ACCA,
United States v. Colbert explained that “extreme emotional disturbance does not negate the intent
elements of first or second degree assault under Kentucky law.” 525 F. App’x 364, 368 (6th Cir.
2013). Maynard, like Colbert, “ignores the plain language of § 508.040, which limits the
application of assault under extreme emotional disturbance to prosecutions . . . ‘in which
intentionally causing physical injury or serious physical injury is an element of the offense.’” Id.
at 370 (quoting Ky. Rev. Stat. § 508.040).
United States v. Knox closes the door. 593 F. App’x 536 (6th Cir. 2015). That case
considered the very question presented here, albeit under plain-error review. Id. at 537–38.
Relying on Colbert “because we treat violent felonies under the [ACCA] the same as crimes of
violence under the guidelines,” Knox concluded that Kentucky’s assault under extreme emotional
disturbance “is a ‘crime of violence’ no matter how you cut it.” Id. Maynard, like Knox, relies

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on Begay v. United States, 553 U.S. 137 (2008), to argue that this crime “does not involve the
same kind of ‘purposeful, violent, and aggressive conduct’ as the crimes listed in U.S.S.G.
§ 4B1.2(a)(2).” See Knox, 593 F. App’x at 538. Even if that were correct—and we agree with
Knox that it is not, id.—assault under extreme emotional disturbance in Kentucky remains a
crime of violence under the Guidelines’ elements clause because it requires proving that
someone used physical force against another. See U.S.S.G. § 4B1.2(a)(1). Maynard addresses
neither Colbert nor Knox, and his arguments do not persuade us to vary from the paths taken in
those cases.
III.
We AFFIRM.

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No. 17-6057 United States v. Maynard Page 5
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CONCURRENCE
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HELENE N. WHITE, Circuit Judge, concurring. I concur because I believe Maynard’s
arguments are foreclosed by the majority decision in United States v. Anderson, 695 F.3d 390
(6th Cir. 2012). This is especially so because the Ohio statute at issue in Anderson required
“knowingly” causing injury and the statute here involves the higher standard of intentionally
causing the injury.

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