Argued and Submitted, San Francisco, California
September 12, 2014.
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:12-cr-00318-JAT-1. James A. Teilborg, Senior District Judge, Presiding.
The panel vacated a sentence imposed upon a defendant convicted of unlawful reentry into the United States, and remanded for resentencing, in a case in which the district court determined, using the modified categorical approach, that the defendant's prior state conviction for aggravated assault, in violation of Arizona Revised Statutes § § 13-1203 and 13-1204, was a " crime of violence" under U.S.S.G. § 2L1.2.
The panel held that the district court's application of the modified categorical approach contravened the principles underlying Descamps v. United States because the district court, in concluding that the defendant had pled to the generic elements of aggravated assault, relied solely upon a statement by defense counsel, during the state court plea colloquy, concerning the factual basis for the defendant's plea.
The panel emphasized that courts remain restricted to the modified categorical approach's focus on the elements, rather than the facts, of a crime. The panel wrote that in a case like this one -- in which there is no narrowing through the indictment, information, or other charging document, and no narrowing of the offense of conviction through the actual conviction documents or pleas -- a sentencing court may not rely on an extraneous factual-basis statement detail, standing alone, to supply the narrowing for purposes of the modified categorical approach. The panel could say for sure only that the Shepard documents do not prove that the defendant was convicted of the crime of intentional (or knowing) aggravated assault, and so the modified categorical approach is not satisfied.
Diego Rodriguez (argued), Rodriguez Law Office PLLC, Phoenix Arizona, for Defendant-Appellant.
Lacy Cooper (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, and Mark S. Kokanovich, Deputy Appellate Chief, United States Attorney's Office, Phoenix, Arizona, for Plaintiff-Appellee.
Before: Raymond C. Fisher, Marsha S. Berzon, and Morgan Christen, Circuit Judges.
BERZON, Circuit Judge:
Merlin Marcia-Acosta was found guilty under 8 U.S.C. § 1326 of unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. The district court determined, using the modified categorical approach, that Marcia-Acosta's prior
state conviction for aggravated assault, in violation of Arizona Revised Statutes § § 13-1203 and 13-1204, was a " crime of violence" under that Guideline. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In so determining, it relied upon a single statement by Marcia-Acosta's defense attorney, during the state court plea colloquy, concerning the factual basis for Marcia-Acosta's plea. The district court then applied the § 2L1.2(b)(1)(A)(ii) 16-level sentencing enhancement and imposed a sentence of 77 months in prison.
We hold that the district court's application of the modified categorical approach contravened the principles underlying Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and so vacate Marcia-Acosta's sentence.
Marcia-Acosta is a citizen of Honduras. He unlawfully entered the United States for the first time in 1991. He had fled El Salvador, where he was living at the time, because of that country's civil war. In 2001, Marcia-Acosta sought asylum. His application was denied in 2002.
Marcia-Acosta was indicted in late 2006 for " intentionally, knowingly or recklessly caus[ing] a physical injury" to another " using a metal bar, a deadly weapon or dangerous instrument," in violation of Arizona's aggravated assault statute, Ariz. Rev. Stat. § § 13-1203 and 13-1204. Marcia-Acosta pled guilty to the assault; his plea agreement and change of plea order referred to " A.R.S. § § 13-1203, [and] 13-1204," but did not specify the subsection of § 13-1203 to which he pled. During the change of plea hearing, Marcia-Acosta confirmed that he voluntarily pled guilty to what the state court judge described as " agg assault, a class 3 felony." The court then had the following exchange with Marcia-Acosta's trial counsel, Jose Colon:
THE COURT: Mr. Colon, any factual basis?
MR. COLON: Your Honor, back on December 8th, 2006, at 400 South 9th Avenue -- it was in Phoenix, Arizona, Maricopa County -- [Marcia-Acosta] got into an altercation with the victim. At this point he grabbed a metal bar. He hit the victim on the head, and he caused an injury to the victim's skull. And he did that intentionally.
THE COURT: Any additions or corrections for the record?
[PROSECUTOR]: No, Your Honor.
THE COURT: The Court finds the defendant's plea is knowingly, intelligently, and voluntarily made. There is a factual basis for it. ...