UNITED STATES,

Plaintiff - Appellee,

v. No. 21-3043

BRIAR CLAYTON EUGENE ADAMS,

Defendant - Appellant. ______________________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 5:20-CR-40015-TC-1) ___________________________________________

Melody Brannon, Kansas Federal Public Defender (Daniel T. Hansmeier, Appellate Chief, with her on the briefs), Kansas City, Kansas, for Defendant-Appellant.

Bryan C. Clark, Assistant United States Attorney, District of Kansas (Duston J. Slinkard, Acting United States Attorney, and James A. Brown, Assistant United States Attorney, with him on the briefs), Kansas City, Kansas, for Plaintiff-Appellee. ______________________________________________

Before BACHARACH, EBEL, and CARSON, Circuit Judges. _____________________________________________

BACHARACH, Circuit Judge. _____________________________________________

This appeal involves a challenge to a criminal sentence for

unlawfully possessing a firearm. In deciding the sentence, the district court Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 2

started with the federal sentencing guidelines. Under the guidelines, a prior

conviction for a crime of violence would increase the base-offense level.

U.S.S.G. § 2K2.1(a)(4).

The district court applied this guideline provision to the defendant,

Mr. Briar Adams, who had a prior conviction in Kansas for aggravated

battery. In considering that conviction, the court classified aggravated

battery as a crime of violence and sentenced Mr. Adams to 51 months’

imprisonment. 1

Mr. Adams challenges this classification, arguing that Kansas’s

crime of aggravated battery includes conduct that wouldn’t create a crime

of violence under the sentencing guidelines. We agree. In Kansas an

aggravated battery could stem from battery against a fetus, and the

guidelines’ definition of a crime of violence wouldn’t cover battery against

a fetus. Because the Kansas crime of aggravated battery doesn’t constitute

a crime of violence, we vacate the sentence and remand for resentencing.

1 With the classification of aggravated battery as a crime of violence, Mr. Adams’s total offense level rose to 17. With an offense level of 17, the guideline range was 51 to 63 months’ imprisonment. Without classification as a crime of violence, the offense level would have been 11, creating a guideline range of 27 to 33 months’ imprisonment.

2 Appellate Case: 21-3043 Document: 010110713926 Date Filed: 07/20/2022 Page: 3

I. We must decide whether aggravated battery in Kansas constitutes a crime of violence under the applicable sentencing guideline.

Mr. Adams was convicted of aggravated battery. Under Kansas law,

aggravated battery takes place when someone “knowingly caus[es] physical

contact with another person when done in a rude, insulting, or angry

manner with a deadly weapon, or in any manner whereby great bodily

harm, disfigurement or death can be inflicted.” Kan. Stat. Ann. § 21-

5413(b)(1)(C) (emphasis added). 2 A separate definitional provision for the

term person includes an “unborn child.” Kan. Stat. Ann. § 21-5419(c). The

term unborn child is itself defined as “a living individual organism of the

species homo sapiens, in utero, at any stage of gestation from fertilization

to birth.” Id.

Given these definitional provisions, we must determine whether the

statutory definition of person creates separate crimes for batteries against

fetuses and individuals born alive. If these definitional provisions create

separate crimes, we would need to decide

 which crime was reflected in Mr.

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