UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSEPH TYRELL DEVRIES, Defendant - Appellant. No. 16-8113 (D.C. No. 2:16-CR-00015-ABJ-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Joseph Devries appeals his sentence, ar guing that his Wyoming conviction for threatening to use a drawn deadly weapon does not qualify as a crime of violence under U.S.S.G. § 4B1.1. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affi rm his sentence.
I Devries pled guilty to being a felon in possession of a firear m in violation of 18 U.S.C. § 922(g)(1). A Presentence Investigation Report (“PSR”) recommended that Devries’ 2014 conviction in Wyoming state court for threatening to use a drawn deadly weapon be treated as a crime of violence under U.S. S.G. § 4B1.2. Combined

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 22, 2017
Elisabeth A. Shumaker Clerk of Court2 with a prior controlled substance conviction, Devries was subject to a base offense level of 24. With a total offense level of 25 and a criminal history category of VI, Devries’ advisory Guidelines range was 11 0-120 months. The district court adopted the PSR and imposed a sentence of 110 months . Devries timely appealed.
II We review de novo whether a state cr ime qualifies as a “c rime of violence” under § 4B1.2. United States v. Rooks, 556 F.3d 1145, 1146-47 ( 10th Cir. 2009). A crime of violence includes any offense punish able by a term of imprisonment of more than one year that “has as an element the use, attempted use, or threatened use of physical force against the pers on of another.” U.S.S.G. § 4B1.2(a)(1). In conducting our analysis, we apply the modified cate gorical approach to “determine which alternative element in a divisible statut e formed the basis of the defendant’s conviction.” United States v. Tittie s, 852 F.3d 1257, 1266 (10th Cir. 2017) (quotation omitted). 1 “With the elements ( not the facts) identifie d, courts can then do what the categorical approach demands and compare those elements to the [Guidelines] definition.” Id. (quotati on omitted). Courts “must focus on the minimum conduct criminalized by the state statute without applying legal imagination to consider hypothe tical situations that tec hnically violate the law but

1 There appears to be no dispute that th e statute at issue is divisible; both parties confine their analyses to the particular subsect ion under which Devries was convicted. See id. (noting that a divisible statute “sets out one or more elements of the offense in the alterna tive” (quotation omitted)).3 have no realistic probability of falling within its application.” Id. at 1274 (quotations omitted). Devries was convicted under a subsec tion of Wyoming’s aggravated assault and battery statute that app lies to any individual who “[t]hreatens to use a drawn deadly weapon on another unless reasonabl y necessary in defense of his person, property or abode or to prevent serious bodily injury to another.” Wyo. Stat. § 6-2- 502(a)(iii). A “deadly weapon” is “a fi rearm, explosive or incendiary material, motorized vehicle, an animal or other de vice, instrument, material or substance, which in the manner it is us ed or is intended to be us ed is reasonably capable of producing death or serious bodily injury .” Wyo. Stat. § 6-1-104(a)(iv). Because the term “deadly weapon” incl udes animals and s ubstances, Devries argues that the statute could be violated by a defendant who threatens to poison a victim while holding a vial of poison, or w ho warns he will releas e bees or poisonous snakes. He relies on United States v. R odriguez-Enriquez, 518 F. 3d 1191 (10th Cir. 2008), a case in which we held that a Colorado conviction for “drugging a victim” does not constitute a crime of violence. Id. at 1191. We concluded that the Guidelines’ use of the modifier “physical ” in physical force “must refer to the mechanism by which the force is imparted to the person of another.” Id. at 1194 (quotation omitted). “[I]t is the presence of [a] mechanical impact that defines when force is physical. In cont rast, the effect of poison on the body is achieved by chemical action, not by mechan ical impact.” Id. Accord ingly, “injury effected by chemical action on the body (as in poisoning or exposure to hazardous chemicals)4 should not be described as cau sed by physical force.” Id . at 1195; see also United States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005) (stating that “intentionally exposing someone to hazardous chemicals” would not constitute the use of physical force). 2 However, we limited the application of th is rule in Armijo. In that case we considered a Colorado felony menacing stat ute that applied when an individual placed another in “fear of imminent se rious bodily injury” through the use or threatened use of a “deadly weapon.” Armijo, 651 F.3d at 1230 (quoting Colo. Rev. Stat. § 18-3-206). Like the Wyoming statute at issue in this ca se, the term “deadly weapon” was defined to include a “material[ ] or substance.” Id . (quoting Colo. Rev. Stat. § 18-1-901(e)). Rely ing on Rodriguez-Enriquez, the defendant argued that because the offense could be committed by poisoning, it did not qualify as a crime of violence. We held that “Rodriguez-Enriquez stands for the limited proposition that a Colorado provision criminaliz ing the surreptitious druggi ng of a victim does not involve the use of physical for ce.” Id. at 1233. Even in li ght of that rule, we held that the Colorado offense qualif ied as a crime of violence “despite the inclusion of poisons and pathogens in Colorado’s definiti on of deadly weapon.” Id. at 1231-32. We conclude the Wyoming offense at issu e is closer to that considered in Armijo than in Rodriguez-En riquez. The Wyoming statut e requires that a weapon be

2 These cases considered whether an o ffense qualified as a “crime of violence” under U.S.S.G. § 2L1.2 rather than § 4B1.2. But the two provisions contain identical elements clauses, and we have construed them in the same fashion. See United States v. Armijo, 651 F.3d 1226, 1233 n.4 (10th Cir. 2011).5 “drawn,” which the Wyoming Supreme Court has interpreted to mean “in a position for use when [defendant] made the threat.” Ewing v. St ate, 157 P.3d 943, 947 (Wyo. 2007). Although we are not directed to Wyoming case law directly on point, it would seem that a defendant who threatens a vict im with poison or venom would have to threaten to force it on the victim rather than surreptiti ously apply it. And we ruled in Armijo that unlike surrepti tious poisoning, a threat to “force the poison on the victim” is sufficient to qualify as a thre at of physical for ce. 651 F.3d at 1232 (quotation omitted). Devries notes that the Wyoming statute lacks an explicit im minence element, and thus one could threaten to surreptitious ly poison a victim at a later date while holding a vial. But the requi rement that a defendant thr eaten to use a deadly weapon that is “in a position for us e,” Ewing, 157 P.3d at 947, strongly suggests that the defendant must threaten to us e it at the time it is drawn. We thus think that the scenarios proposed by Devries are “hypothetical situations that technically violate the law but have no realistic proba bility of falling within its application.” Titties, 852 F.3d at 1274 (quotations omitted).
III AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge