UNITED STATES v. ERVIN (2020)

MEMORANDUM ***

Gary Ervin appeals his sentence. In calculating Ervin’s base offense level, the district court determined that Ervin’s prior conviction of Assault with Intent to Do Great Bodily Harm, Mich. Comp. Laws § 750.84(1)(a), was categorically a crime of violence under U.S.S.G. § 4B1.2(a).

Ervin contends that Mich. Comp. Laws § 750.84(1)(a) penalizes conduct that does not fall within the definition of a crime of violence because “[n]o actual force need be used against the victim in order to commit the offense[ ],” as “poison could seriously harm the health or function of the body and thereby qualify as great bodily injury in Michigan,” but would not involve actual force against the victim. This Court has already rejected that argument. See United States v. Calvillo-Palacios, 860 F.3d 1285, 1291 (9th Cir. 2017) (“[United States v. Castleman, 572 U.S. 157, 170, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014),] explicitly rejected the poison hypothetical frequently employed by other circuits—the notion that one could cause bodily harm without using physical force by administering poison.”); see also id. (“[I]n the context of assault statutes, bodily injury entails the use of violent, physical force[.]”).

Ervin’s appeal is therefore DENIED, and his sentence is AFFIRMED.