The government’s case relied on the fact that Wright’s prior state conviction qualified as a misdemeanor crime of domestic violence under federal law, which requires the use or attempted use of physical force as an element. Wright argued that his Washington conviction did not meet this standard, citing the Ninth Circuit’s recent decision in United States v. DeFrance, which addressed a similar issue under Montana law.
The panel distinguished Wright’s case from DeFrance, noting that unlike the Montana statute, Washington’s fourth-degree assault statute does not statutorily define assault but instead applies the common law definition. Under that common law concept, force encompasses indirect application, and placing a victim in fear of bodily injury requires at least an implicit threat to use violent physical force.
Because Washington’s statute incorporates the generic common law definition of assault, the court held it contains the necessary element of the use or attempted use of physical force. The district court correctly observed that DeFrance did not apply to the conviction underlying Wright’s federal charge and did not abuse its discretion in finding no fair and just reason to allow Wright to withdraw his guilty plea.
On sentencing, the district court applied a two-level enhancement under U.S. Sentencing Guidelines Manual § 3C1.2 for recklessly creating a substantial risk of death or serious bodily injury while fleeing law enforcement. The Ninth Circuit reviewed the factual findings for clear error and the application of the guidelines for abuse of discretion.
The record supported the enhancement, showing that Wright’s one-hour-and-twenty-minute flight covered at least 34 miles and involved resistance to two precision-immobilization-technique maneuvers. Wright also engaged in evasive driving to avoid collisions with other vehicles, drove on the shoulder, and made a U-turn on a highway.
These actions provided logical and plausible support for the district court’s conclusion that Wright was aware of the risk created by his conduct and disregarded it in a manner constituting a gross deviation from the standard of care. The panel affirmed the district court’s final judgment.