United States v. Ontiveros

Defendant-Appellant, Tito Ontiveros, appeals from the district court judgment resentencing him following the vacation of his original sentence as a result of the Supreme Court’s decision in Johnson v United States (“Johnson II”), 135 S. Ct. 2551 (2015). Ontiveros was convicted by jury of being a felon in possession of a firearm and possessing an unregistered firearm. After finding that Ontiveros qualified as an armed career criminal under the Armed Career Criminal Act (ACCA) for having committed three prior violent felonies, one of which fell under the “residual clause,” the district court sentenced Ontiveros to 382 months’ imprisonment. The sentence was affirmed on direct appeal. In 2015, the Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. At resentencing, the new presentence report (PSR) recommended a base offense level of 22 under section 2K2.1(a)(3) of the Sentencing Guidelines because Ontiveros had one prior felony conviction that counted as a crime of violence. The government objected, arguing that the base offense level should be 26 under section 2K2.1(a)(1) because Ontiveros had two prior crimes of violence. The government argued that Ontiveros’s 2007 conviction for Colorado second-degree assault, in violation of Colo. Rev. Stat. 18-3-203(1)(g), also counted as a crime of violence. Ontiveros conceded that one of his prior convictions constituted a crime of violence but argued, relying on the Tenth Circuit’s decision in United States v. Perez-Vargas, 414 F.3d 1282 (2005), his Colorado second-degree assault conviction did not. The district court agreed with the government and, based on the higher offense level, sentenced Ontiveros to two concurrent 110-month sentences with a three-year term of supervised release. Ontiveros appealed, arguing that Colorado second-degree assault is not a “crime of violence.” Finding no reversible error, the Tenth Circuit affirmed the district court’s judgment. View "United States v. Ontiveros" on Justia Law