FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

BENITO CRAIG CASTRO, 

Defendant-Appellant.

No. 22-30050 

D.C. No. 

1:21-cr-00059-

SPW-1 

OPINION

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 commonlaw 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 at 

4 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.