Whether a court of appeals can sua sponte hold a preserved claim forfeited and then dismiss it as waived when the government agrees the claim was properly preserved

QUESTIONS PRESENTED Trayon Williams argued in the district court and on appeal that his prior Kansas aggravated-battery conviction, KSA § 21-5413(b)(1)(B), did not qualify as a crime of violence under the guidelines (USSG § 4B1.2(a)(1)) for two reasons: (1) it could be committed recklessly; and (2) it did not have an element of violent force. On appeal, the government agreed that the claims were preserved and the standard of review was de novo. But the Tenth Circuit disagreed and sua sponte held the recklessness claim forfeited, then further held the claim waived and refused to consider it. In contrast, eight court of appeals would have reviewed the claim de novo because the government “waived the waiver.” The Tenth Circuit also rejected the claim in light of Tenth Circuit precedent holding that causation-of-harm elements necessarily qualify as violent-force elements. The questions presented are: I. When the government agrees that a claim was properly preserved below, can a court of appeals sua sponte hold the claim forfeited, then dismiss the claim as waived, or has the government “waived the waiver”? II. If a crime has a causation-of-harm element, does it also necessarily have an element of violent force for purposes of classifying the crime as a violent crime? i