United States v. Benito Castro ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30050
Plaintiff-Appellee, D.C. No.
1:21-cr-00059-
v. SPW-1
BENITO CRAIG CASTRO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 27, 2023
Seattle, Washington
Filed June 26, 2023
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge Nguyen
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 UNITED STATES V. CASTRO
SUMMARY**
Criminal Law
The panel vacated Benito Castro’s sentence and
remanded for resentencing in a case in which Castro pled
guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).
The district court increased Castro’s offense level
pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based on a finding
that Castro’s prior Montana conviction for partner or family
member assault (“PFMA”) under Mont. Code Ann. § 45-5-
206(1)(a) is a crime of violence under the Sentencing
Guidelines.
Applying the categorical approach, the panel held that
PFMA is not a crime of violence under the Sentencing
Guidelines because the definition of “bodily injury”
incorporated into PFMA includes more conduct than the
“use of physical force” required by U.S.S.G. § 4B1.2(a)(1).
Under Montana’s unusual definition, bodily injury “includes
mental illness or impairment,” and Montana courts have
concluded that one can cause “bodily injury” solely through
the infliction of mental anguish unaccompanied by any
actual or threatened physical violence. Because the court
must determine whether PFMA categorically requires
violent force—not whether Castro actually used it in his
prior offense—the panel held that PFMA is not a crime of
violence under the Sentencing Guidelines.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CASTRO 3
COUNSEL
Russell A. Hart (argued) and Steven C. Babcock, Assistant
Federal Defender; Rachel Julagay, Federal Defender,
District of Montana; Federal Defenders of Montana;
Billings, Montana; for Defendant-Appellant.
Tim Tatarka (argued) and Benjamin D. Hargrove, Assistant
United States Attorneys; Jesse A. Laslovich, United States
Attorney, District of Montana; Office of the United States
Attorney; Billings, Montana; for Plaintiff-Appellee.
OPINION
NGUYEN, Circuit Judge:
Benito Castro pled guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). In
calculating Castro’s recommended sentence, the district
court increased his offense level based on a finding that
Castro had previously committed a crime of violence.
Castro contends that the crime in question, a Montana
conviction for partner or family member assault (“PFMA”),
Mont. Code Ann. § 45-5-206(1)(a), is not a crime of
violence under the federal Sentencing Guidelines. We agree.
Montana’s PFMA statute penalizes intentionally causing
“bodily injury.” Id. While bodily injury may sound like it
entails “force capable of causing physical pain or injury to
another person,” Johnson v. United States, 559 U.S. 133, 140
(2010), in Montana that is not necessarily true. Under that
state’s unusual definition, bodily injury “includes mental
illness or impairment.” Mont. Code Ann. § 45-2-101(5).
Montana courts have concluded that one can cause “bodily
4 UNITED STATES V. CASTRO
injury” solely through the infliction of mental anguish
unaccompanied by any actual or threatened physical
violence. Because we must determine whether PFMA
categorically requires violent force—not whether Castro
actually used it in his prior offense—we hold that PFMA is
not a crime of violence under the Sentencing Guidelines.
Therefore, we vacate Castro’s sentence and remand for
resentencing.
I.
In May 2021, Castro and his girlfriend went hiking in
Bighorn Canyon National Recreation Area. Park rangers on
patrol at the trailhead spotted drug paraphernalia in Castro’s
vehicle. The rangers intercepted Castro and his girlfriend at
the end of the trail and accompanied them back to the
vehicle. Castro initially denied possessing a firearm but later
admitted to the rangers that he had a firearm in his front shirt
pocket and was on probation for a felony PFMA conviction.
The rangers handcuffed Castro and seized the firearm—a
Glock pistol. After issuing Castro a citation for 2.53 grams
of marijuana and an empty beer bottle that they found in his
vehicle, the rangers released him.
A grand jury charged Castro with knowingly possessing
a firearm after a felony conviction in violation of 18 U.S.C.
§ 922(g)(1). Castro pled guilty.
At sentencing, the parties disputed whether one of
Castro’s 2013 PFMA convictions qualifies as a “crime of
violence” under the Sentencing Guidelines.1 The district
1
Castro had three prior felony PFMA convictions—two in 2013 and one
in 2017. The government conceded that only one of the convictions
could qualify as a crime of violence because the charging documents in
UNITED STATES V. CASTRO 5
court ruled that the PFMA conviction was a crime of
violence, which increased Castro’s offense level from 14 to
20 and his recommended sentencing range from 27–33
months to 46–57 months. See U.S. Sent’g Guidelines
Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A), (6)(A) (U.S. Sent’g
Comm’n 2016). The district court sentenced Castro to a
prison term of 50 months.
We have jurisdiction under 28 U.S.C. § 1291. Whether
a prior offense constitutes a crime of violence under the
Sentencing Guidelines is a legal question that we review de
novo. See United States v. Perez, 932 F.3d 782, 784 (9th
Cir. 2019).
II.
For unlawfully possessing a firearm, the Sentencing
Guidelines set a base offense level of 14 if the defendant was
a “prohibited person”—here, someone previously convicted
of a felony—at the time of the offense. U.S.S.G.
§ 2K2.1(a)(6)(A) & cmt. n.3. The base offense level
increases to 20 if the prior felony was a “crime of violence.”
Id. § 2K2.1(a)(4)(A).
The Guidelines define a crime of violence in two ways.
In the so-called enumerated offenses clause, the Guidelines
list several offenses that constitute a crime of violence. See
id. § 4B1.2(a)(2). But if the crime at issue is not among
them, the elements clause defines “crime of violence” more
the others didn’t specify which subsection of the PFMA statute Castro
violated. One subsection allows for a conviction based on negligent
conduct, see Mont. Code Ann. § 45-5-206(1)(b), which is an insufficient
mens rea. See Borden v. United States, 141 S. Ct. 1817, 1824 (2021)
(“The phrase ‘crime of violence’ . . . ‘suggests a category of violent,
active crimes that cannot be said naturally to include’ negligent
offenses.” (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 (2004))).
6 UNITED STATES V. CASTRO
generally as one that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” Id. § 4B1.2(a)(1).
To determine whether a felony is a crime of violence, we
apply the categorical approach. United States v. Prigan, 8
F.4th 1115, 1118–19 (9th Cir. 2021). This requires, for
better or worse, that we ignore what actually occurred during
the defendant’s prior felony; instead, we consider only
whether the prior felony’s elements cover conduct that
“sweeps more broadly than the conduct covered by
§ 4B1.2(a)’s crime-of-violence definitions.”2 Id. at 1119. If
so, then the prior felony is not categorically a crime of
violence and cannot be used to increase the base offense
level under § 2K2.1(a). See id.
We begin by analyzing the state statute’s text, and we
may also consider state court interpretations of the statute.
See United States v. Baldon, 956 F.3d 1115, 1123 (9th Cir.
2020). Montana defines PFMA in relevant part as
“purposely or knowingly caus[ing] bodily injury to a partner
or family member.”3 Mont. Code Ann. § 45-5-206(1)(a).
2
The Supreme Court mandates this mode of analysis, but other federal
courts “hate the categorical approach,” as the district court put it. See,
e.g., Lopez-Aguilar v. Barr, 948 F.3d 1143, 1149 (9th Cir. 2020) (Graber,
J., concurring) (joining “the substantial chorus of federal judges pleading
for the Supreme Court or Congress to rescue us from the morass of the
categorical approach”). It frequently “produces absurd results,” id., and
this case is illustrative. While we conclude that PFMA violations need
not be violent, in the one at issue, Castro “grabbed [the victim] by the
neck” and “then threw her to the ground and hit her face into a glass
door.”
3
Castro contends that we cannot cabin our analysis to the subsection of
the PFMA statute under which he was charged because the statute isn’t
UNITED STATES V. CASTRO 7
Bodily injury, in turn, “means physical pain, illness, or an
impairment of physical condition and includes mental illness
or impairment.” Id. § 45-2-101(5).
A.
The government does not contend that PFMA is a
categorical match with one of the offenses enumerated in
§ 4B1.2(a)(2), and for good reason. The closest analogue to
PFMA among the enumerated offenses is aggravated
assault. The generic definition of aggravated assault covers
bodily injury caused “‘under circumstances manifesting
extreme indifference to the value of human life’ or with a
deadly weapon.” United States v. Vederoff, 914 F.3d 1238,
1245 (9th Cir. 2019) (quoting Model Penal Code § 211.1(2)
(Am. L. Inst. 1985)). PFMA, which requires neither serious
bodily injury nor use of a weapon, see State v. Brown, 781
P.2d 281, 283 (Mont. 1989), covers a wide spectrum of
physically injurious conduct that generic aggravated assault
does not, see State v. Goodwin, 679 P.2d 231, 233 (Mont.
1984) (explaining that “bodily injury” does not require
substantial risk of death and involves less substantial pain,
risk, disfigurement, or impairment than the “serious bodily
“divisible”—i.e., one that “lists multiple, alternative elements, and so
effectively creates ‘several different . . . crimes.’” Descamps v. United
States, 570 U.S. 254, 264 (2013) (quoting Nijhawan v. Holder, 557 U.S.
29, 41 (2009)). To the contrary, “each subsection of the statute
involve[s] unique mens rea and conduct elements.” United States v.
Tagatac, 36 F.4th 1000, 1003 (9th Cir. 2022). For that reason, the
Montana Supreme Court held that jury instructions combining the
elements of subsections (1)(a) and (1)(c) improperly amended an
information that charged the defendant only under subsection (1)(a). See
State v. Spotted Eagle, 243 P.3d 402, 404 (Mont. 2010) (“Changing the
essential elements changed the nature and substance of the
charge . . . .”).
8 UNITED STATES V. CASTRO
injury” necessary under Montana’s aggravated assault
statute).
B.
We turn then to the elements clause, which defines
“crime of violence” as an offense 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).
“Because this language is identical to that interpreted by the
Supreme Court in Johnson, we apply Johnson’s definition of
‘physical force’: ‘violent force—that is, force capable of
causing physical pain or injury to another person.’” United
States v. Fitzgerald, 935 F.3d 814, 816 (9th Cir. 2019)
(internal citation omitted) (quoting Johnson, 559 U.S. at
140). Although violent force “need not cause pain or injury
or even be prolonged,” Stokeling v. United States, 139 S. Ct.
544, 553 (2019), it “requires, at the very least, more than ‘a
mere unwanted touching,’” Fitzgerald, 935 F.3d at 817
(quoting Johnson, 559 U.S. at 142).
The definition of “bodily injury” incorporated into
PFMA includes more conduct than the “use of physical
force” required by § 4B1.2(a)(1). We must presume that
Castro’s PFMA conviction “rested upon nothing more than
the least of the acts criminalized,” Baldon, 956 F.3d at 1125
(cleaned up) (quoting Moncrieffe v. Holder, 569 U.S. 184,
190–91 (2013)), which is intentionally causing “mental
illness or impairment” to a partner or family member, Mont.
Code Ann. §§ 45-2-101(5), 45-5-206(1)(a).
While mental illness or impairment can be caused by
threats of violent force, it can also be caused by less forceful
means, such as “subjecting someone to a public tirade of
insults or emotional abuse.” United States v. Ross, No. CR
13-29-BLG-BMM, 2017 WL 1288425, at *4 (D. Mont. Apr.
UNITED STATES V. CASTRO 9
6, 2017). More importantly, a mere threat of force—violent
or otherwise—is not an element of PFMA subsection (1)(a),
which requires that the defendant actually inflict physical or
mental bodily injury. Subsection (1)(c), in contrast,
penalizes “caus[ing] reasonable apprehension of bodily
injury.” Mont. Code Ann. § 45-5-206(1)(c). Thus, even if
threatened violent force causes mental injury,
subsection (1)(a) is not a crime that “has as an element
the . . . threatened use of physical force.” U.S.S.G.
§ 4B1.2(a)(1).
1.
In arguing that Montana’s definition of bodily injury
necessarily entails violent force, the government relies on
two inapposite cases.
a.
United States v. Castleman did not involve the
Sentencing Guidelines, but rather a federal statute that
penalized “the possession of firearms by anyone convicted
of ‘a misdemeanor crime of domestic violence.’” 572 U.S.
157, 159 (2014) (quoting 18 U.S.C. § 922(g)(9)). The
Supreme Court held that a “misdemeanor crime of domestic
violence” requires less force than Johnson requires of a
violent felony. See id. at 163 (“[A]t common law, the
element of force in the crime of battery was ‘satisfied by
even the slightest offensive touching.’ . . . [T]he common-
law meaning of ‘force’ fits perfectly [here].” (quoting
Johnson, 559 U.S. at 139)). Thus, insofar as Castleman
concerns “the degree [of force] required,” it is
unilluminating as to § 4B1.2(a). Amaya v. Garland, 15 F.4th
976, 981 n.4 (9th Cir. 2021). Castleman expressly declined
to decide whether a state statute defining bodily injury
10 UNITED STATES V. CASTRO
“necessitate[d] violent force[] under Johnson’s definition of
that phrase.”4 Castleman, 572 U.S. at 170.
b.
Similarly unhelpful is United States v. Calvillo-Palacios,
which explained that “in the context of assault statutes,
bodily injury entails the use of violent, physical force.” 860
F.3d 1285, 1291 (9th Cir. 2017). Calvillo-Palacios
concerned aggravated assault statutes that require physical
bodily injury, such as the Texas statute at issue there. See
Tex. Penal Code Ann. §§ 22.02(a)(1) (defining aggravated
assault to include “serious bodily injury”), 1.07(8) (defining
“bodily injury” as “physical pain, illness, or any impairment
of physical condition”). If anything, Calvillo-Palacios
undermines the government’s position insofar as it suggests
that causing “impairment of physical condition” may not
require violent force. See Calvillo-Palacios, 860 F.3d at4
The government argues that the Tennessee statute at issue in Castleman
employed a definition of bodily injury similar to the Montana statute
here, thus showing that PFMA “require[s] at least the use of force
sufficient to meet the standard of common-law battery.” It is unclear that
Tennessee’s definition of bodily injury, like Montana’s, includes
emotional and psychological harm. While the Tennessee definition
includes “impairment of the function of a bodily member, organ, or
mental faculty,” Castleman, 572 U.S. at 170 (quoting Tenn. Code Ann.
§ 39-11-106(a)(2) (1997)), it may be limited to physical brain damage
rather than mental or emotional distress. See State v. Kissinger, 922
S.W.2d 482, 488 n.9 (Tenn. 1996) (holding that “serious psychological
injury” does not constitute “bodily injury” for sentencing purposes); see
also Ivey v. Trans Glob. Gas & Oil, 3 S.W.3d 441, 447 (Tenn. 1999)
(describing “two basic types of [mental] injuries”: one “result[ing] from
physical trauma to the brain,” and one “involv[ing] a mental or emotional
disorder that results from a non-physical injury”); Tenn. Code Ann. §
50–6-102(15) (distinguishing “a loss of mental faculties” from “a mental
or behavioral disorder”). Because Johnson requires more force than
common law battery, however, we need not resolve the issue.
UNITED STATES V. CASTRO 11
1292 (assuming that “‘impairment of physical condition[]’
could occur without violent, physical force” because the
crime at issue required “serious bodily injury”). Montana,
like Texas, defines bodily injury to include impairment of
physical condition. See Mont. Code Ann. § 45-2-101(5).
2.
As the government points out, there must be a “realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of a crime.” Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007). But the government’s reliance on this
principle is misplaced.
To begin with, it is far from clear that the generic offense
of simple battery—of which PFMA subsection (1)(a) is a
species5—is a crime of violence under § 4B1.2(a). Common
law battery, which is “satisfied by even the slightest
offensive touching,” does not satisfy that definition.
Johnson, 559 U.S. at 139; see Fitzgerald, 935 F.3d at 816–
17. Moreover, § 4B1.2(a)’s enumerated offenses clause
omits simple assault while including aggravated assault,
which involves more severe injury. For the sake of
argument, however, we will assume that the generic crime
of simple battery satisfies the elements clause.
To show a “realistic probability” that Montana would
apply PFMA subsection (1)(a) to conduct outside the
generic definition of simple battery, Castro “has two paths.”
5
Normally, battery requires a “physical injury or offensive touching”
whereas assault “needs no such physical contact.” 2 Wayne R. LaFave,
Substantive Criminal Law § 16.1(a) (3d ed. 2022). PFMA’s three
subsections, like many assault statutes, combine elements of both. See
id. § 16.3 n.3 (noting that “a statute labelled ‘assault’ may in addition
cover conduct of the battery type”).
12 UNITED STATES V. CASTRO
Baldon, 956 F.3d at 1124. He “may simply ‘rely on the
statutory language to establish the statute as overly
inclusive.’” Id. (quoting Chavez-Solis v. Lynch, 803 F.3d
1004, 1010 (9th Cir. 2015)). After all, “if a state statute
explicitly defines a crime more broadly than the generic
definition, no ‘legal imagination’ is required to hold that a
realistic probability exists.” Id. (quoting Chavez-Solis, 803
F.3d at 1009). Alternatively, Castro can “point to his own
case or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he
argues.” Id. (quoting Duenas-Alvarez, 549 U.S. at 193). In
the end, he “succeeds on both paths.” Id.a.
To determine what conduct generic battery covers, we
“ordinarily survey a number of sources—including state
statutes, the Model Penal Code, federal law, and criminal
treatises.” Alfred v. Garland, 64 F.4th 1025, 1037 (9th Cir.
2023) (en banc) (cleaned up) (quoting United States v.
Garcia-Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015)). Most
simple battery statutes (whether denominated assault or
battery) encompass intentionally causing bodily injury. See,
e.g., Model Penal Code § 211.1(1)(a) (defining simple
assault in part as “purposely, knowingly or recklessly
caus[ing] bodily injury to another”).
Of the states that require a showing of bodily injury,
however, the vast majority do not include mental injury. See
2 LaFave, supra, § 16.2(a) (“The modern approach . . . is to
limit battery to instances of physical injury . . . .”); Francis
X. Shen, Mind, Body, and the Criminal Law, 97 Minn. L.
Rev. 2036, 2048 (2013) (surveying state definitions and
concluding that “with only a few exceptions, mental injury
is not explicitly included under the bodily injury umbrella”).
UNITED STATES V. CASTRO 13
About half the states define bodily or physical injury in terms
of pain or other physical impairments,6 and some limit
bodily injury to physical injury through case law.7 Several
other states adhere to the common law definition of battery,
requiring minimal, non-injurious physical force, which does
not qualify as a crime of violence under Johnson.8
Montana added its definition of “bodily injury” in 1973,
when the state “replaced its former common-law based
criminal code with a modified version of the Model Penal
Code.” State v. Mills, 428 P.3d 834, 840 (Mont. 2018).
6
See Ala. Code § 13A-1-2(12); Alaska Stat. § 11.81.900(b)(48); Ariz.
Rev. Stat. Ann. § 13-105(33); Ark. Code Ann. § 5-1-102(14); Conn.
Gen. Stat. § 53a-3(3); Del. Code Ann. tit. 11, § 222(26); Haw. Rev. Stat.
§ 707-700; Ky. Rev. Stat. Ann. § 500.080(15); Me. Rev. Stat. tit. 17-A,
§ 2(5); Minn. Stat. § 609.02(7); Mo. Rev. Stat. § 556.061(36); Neb. Rev.
Stat. § 28-109(4); N.J. Stat. Ann. § 2C:11-1(a); N.Y. Penal Law
§ 10.00(9); N.D. Cent. Code § 12.1-01-04(4); Ohio Rev. Code Ann.
§ 2901.01(A)(3) & cmt.; Or. Rev. Stat. § 161.015(7); 18 Pa. Consol. Stat.
§ 2301; Tex. Penal Code Ann. § 1.07(a)(8); Utah Code Ann.
§ 76-1-101.5(4); Vt. Stat. Ann. tit. 13, § 1021(a)(1); Wis. Stat.
§ 939.22(4).
7
See State v. Randle, 781 S.E.2d 781, 784 (Ga. 2016); People v. Mays,
437 N.E.2d 633, 635–36 (Ill. 1982); State v. Phillips, 479 P.3d 176, 198
(Kan. 2021); Commonwealth v. Gorassi, 733 N.E.2d 106, 110 (Mass.
2000); Murrell v. State, 655 So. 2d 881, 884 (Miss. 1995); State v.
Wilkerson, 738 S.E.2d 32, 38 (W. Va. 2013).
8
See Ind. Code § 35-42-2-1(c); Md. Code Ann., Crim. Law §§ 3-201, 3-
203; N.M. Stat. Ann. § 30-3-4; Wash. Rev. Code § 9A.36.041; People v.
Rocha, 479 P.2d 372, 377 n.12 (Cal. 1971); State v. Schenck, 513 So. 2d
1159, 1165 (La. 1987); People v. Nickens, 685 N.W.2d 657, 661 (Mich.
2004); Hobbs v. State, 251 P.3d 177, 179 (Nev. 2011); State v. West, 554
S.E.2d 837, 840 (N.C. Ct. App. 2001); Steele v. State, 778 P.2d 929, 931
(Okla. Crim. App. 1989); State v. Albanese, 970 A.2d 1215, 1221 (R.I.
2009); Kelley v. Commonwealth, 822 S.E.2d 375, 379 (Va. Ct. App.
2019).
14 UNITED STATES V. CASTRO
Montana’s definition tracks the Model Penal Code’s, but
only to a point. Both begin with “physical pain, illness or . . .
impairment of physical condition,” Model Penal Code
§ 210.0(2) (1962), but the Model Penal Code’s definition
ends there, whereas Montana’s “includes mental illness or
impairment,” Mont. Code Ann. § 45-2-101(5). Thus,
Montana “explicitly defines [bodily injury] more broadly
than the generic definition.” Baldon, 956 F.3d at 1124
(quoting Chavez-Solis, 803 F.3d at 1009).
It would be one thing if Montana’s bodily injury statute
matched the Model Penal Code and excluded mental injury.
Castro would then need to show that physical bodily injury
can occur without violent force. He might argue, as did
Calvillo-Palacios, that “impairment of physical condition”
can be caused nonviolently. See Calvillo-Palacios, 860 F.3d
at 1292. While Montana courts theoretically could interpret
the statutory language that broadly—“physical condition”
can refer to physical strength, see, e.g., In good physical
condition, Merriam-Webster Dictionary, https://www.merri
am-webster.com/dictionary/in%20good%20physical%20co
ndition [https://perma.cc/E6F8-TG55]—Castro would need
to show a realistic probability that they would do so.
In short, PFMA subsection (1)(a) expressly deviates
from the generic crime of battery by allowing the harm to be
mental rather than physical. Thus, we need not speculate
whether Montana courts would stretch the statute beyond the
generic definition. See Baldon, 956 F.3d at 1124.
b.
We also need not speculate because Castro identifies at
least two cases in which Montana courts have found that
psychological harm constitutes bodily injury.
UNITED STATES V. CASTRO 15
i.
In the first case (really, a pair of cases), the Montana
Supreme Court considered the propriety of two civil
commitment orders, which turned on whether the committed
individual presented a substantial risk of “serious bodily
injury . . . to [himself] or others.” Mont. Code Ann.
§ 46-14-301(3)(a). The civil commitment statute employs
the criminal definition of “serious bodily injury,” see State
v. Cooney (“Cooney I”), 963 P.2d 1272, 1274 (Mont. 1998),
which provides that serious bodily injury “includes serious
mental illness or impairment,” Mont. Code Ann.
§ 45-2-101(66)(b). Thus, both “bodily injury” and “serious
bodily injury” include some degree of “mental illness or
impairment.”
In Cooney I, the trial court found that a convicted stalker
(Cooney) “was capable of acting upon his delusional beliefs,
creating a substantial risk of serious bodily injury to his
victim, including bodily injury in the form of serious mental
illness or impairment.” Cooney I, 963 P.2d at 1274. On
appeal, Cooney contended that the victim’s “emotional
anguish or emotional trauma” from his past stalking
behavior did not cause her “a diagnosable ‘serious mental
illness’” and that even if he continued to stalk her upon
release, as was likely, that was “not sufficient to show that
his victim [was] at risk for developing a ‘serious mental
illness.’” Id. The Montana Supreme Court affirmed the trial
court, concluding that “Cooney’s stalking activities . . .
ha[d] already caused [the victim] a great deal of emotional
anguish related to fears of her own and her family’s safety
and may have already resulted in a diagnosable psychiatric
condition for her.” Id.
16 UNITED STATES V. CASTRO
Nearly two years later, the state trial court found that
Cooney still presented “a substantial risk of serious mental
harm to the young woman whom he had stalked” and
ordered his continued commitment. State v. Cooney
(“Cooney II”), 1 P.3d 956, 957 (Mont. 2000). The Montana
Supreme Court once again upheld the commitment order,
finding that “Cooney was likely to attempt to contact his
stalking victim if he was released” and that the victim feared
“Cooney would be able to locate her and members of her
family and would continue stalking her” despite her
“precautions to seclude herself.” Id.The government speculates that “the victim’s mental
distress ‘stemmed from apprehension of physical injury if
she did not respond to the defendant’s stalking’” (quoting
United States v. DeFrance, 577 F. Supp. 3d 1085, 1097 (D.
Mont. 2021)), but the reason for the victim’s apprehension
was irrelevant to the Montana Supreme Court’s analysis.
The court did not find that Cooney presented a risk of
causing physical injury.9 The court’s holding that “Cooney
posed a substantial risk of serious bodily injury or death to
himself or others” rested on its finding that “Cooney
presented a substantial risk of causing serious mental
impairment in” his stalking victim. Cooney II, 1 P.3d at 958.
9
At the criminal trial, the victim “testified that she was apprehensive that
Cooney might physically injure her because Cooney gets mad when she
does not respond,” State v. Cooney, 894 P.2d 303, 305 (Mont. 1995), but
there was no evidence of any express or implied threats of physical
violence. Rather, he “expressed his love for [the victim] with unusual
forms of expression, such as ‘I wuv U, I wuv U,’” and asked the victim
if she would like to have sex. Id. Like Cooney’s civil commitment, his
criminal conviction for stalking did not rest on any threat of physical
injury. The trial court found—and the state supreme court affirmed—
that “Cooney’s persistence, despite rejection, caused [the victim]
substantial emotional distress.” Id.UNITED STATES V. CASTRO 17
Montana’s statute defining “bodily injury” describes
symptoms, not their causes, so the reason for the court’s
mental impairment finding made no difference—just as it
makes no difference under PFMA subsection (1)(a).
ii.
In the second case, People v. Shen, No. DC 20-1260
(Mont. Dist. Ct. filed Sept. 21, 2020), Shen moved to dismiss
five counts of felony sexual assault. Montana’s sexual
assault statute imposes misdemeanor punishment for
nonconsensual “sexual contact,” Mont. Code Ann. § 45-5-
502(1), which requires only a “touching,” id.§ 45-2-101(67). However, the statute elevates the offense to
a felony “if the offender inflicts bodily injury.” Id. § 45-5-
502(3). In each of the five sexual assault counts, the state
charged Shen with “caus[ing] bodily injury in that [the]
victim suffered . . . mental impairment in the form of
emotional anguish.” Second Amended Information at 2–4,
Shen, No. DC 20-1260, Dkt. No. 25.
Shen argued that emotional anguish is insufficient to
constitute “bodily injury.” See Order Denying Defendant’s
Motion to Dismiss at 3, Shen, No. DC 20-1260, Dkt. No. 34.
The trial court disagreed and denied the motion to dismiss:
[T]he plain language of bodily injury, which
includes simply “mental illness or
impairment” does not require permanent,
protracted, or any other “serious”
consequence, far less than was required in
Cooney.
Here, a common-sense reading of the Second
Amended Information and Affidavit
establishes probable cause that Shen inflicted
18 UNITED STATES V. CASTRO
bodily injury through mental impairment on
the victims of the Sexual Assault Counts.
Shen allegedly engaged in conduct with each
victim that caused them considerable
emotional anguish. This is sufficient to meet
mental impairment as a factual basis and
allow a factual finding by the jury.
Id. at 5.
While the unreviewed order of a single trial court is
obviously not conclusive as to state law, it is entitled to at
least “some weight.” King v. Ord. of United Com. Travelers
of Am., 333 U.S. 153, 160–61 (1948). Shen’s reasoning is a
straightforward application of Cooney I and II and
underscores that bodily injury in Montana does not require
violent force.
III.
Castro’s conviction under PFMA subsection (1)(a)
required nothing more than causing mental anguish through
nonviolent conduct. Because his offense was not
categorically a crime of violence under § 4B1.2(a), the
district court erred in calculating the Sentencing Guidelines
range. See United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). We therefore vacate Castro’s sentence
and remand for resentencing.
VACATED and REMANDED.