The Tenth Circuit held in United States v. Adams, No. 21-3043 (10th Cir. July 20, 2022), that because Kansas includes injury to a fetus in its aggravated battery statute, a prior conviction for that offense could not be used to enhance a firearm sentence, even if the prior offense had nothing to do with a fetus. The case raises some bigger questions about states that count a fetus as a “person” under their criminal laws.
This case was a direct appeal after a defendant was convicted of unlawful possession of a firearm (18 U.S.C. sec 922(g)) and was handed a 51-month prison sentence in federal court. The sentence was enhanced because the defendant had a prior “crime of violence,” under USSG sec 2K2.1(a)(4), for aggravated battery in Kansas. A crime of violence is defined under the U.S. Sentencing Guidelines as an offense that has as an element the use of “physical force against the person of another.” (USSG sec 4B1.2)
The Tenth Circuit held that a Kansas aggravated battery conviction wasn`t “categorically” a crime of violence for USSG purposes because it included injury to a “fetus,” and a fetus was not a “person” under the USSG. This meant the Kansas aggravated battery offense was overbroad and fell outside the federal definition of “crime of violence,” and so couldn`t be used to enhance the defendant`s sentence. The court vacated the sentence and remanded for resentencing without the enhancement.
This case raises some interesting questions about enhancements in federal sentencing, particularly for anyone sentenced under the career offender guideline or the Armed Career Criminal Act. Killing or injuring a fetus in many states is considered a felony. Even the feds have a law against causing death or injury to a fetus. It`s called the Unborn Victims of Violence Act of 2004 (18 U.S.C. sec 1841).
But if a fetus isn`t a “person” for federal sentencing purposes, does this exclude prior convictions under state and federal law dealing with harm to a fetus? Even if someone kills the mother, and as a result her fetus, the “categorical approach” requires that the federal sentencing court must determine if the prior offense meets the definition of a “crime of violence” for certain sentencing enhancements. If it reaches beyond that definition, it`s no good for an enhanced sentence.
I`d say keep an eye on this developing area of law. This could have a wider-reaching effect in the federal system than just firearm sentencing.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.