In United States v. Castro, --- F.4th ---, No. 22-30050 (9th Cir. 2023), the Court 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).
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 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.
