United States v. Marcia-Acosta, No. 13-10475 (Berzon with Fisher and Christen) ---

 

The heroine of the Descamps case comes to the rescue again. The Ninth Circuit vacated a sentence and remanded for resentencing, holding that a federal sentencing court, following Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), may not rely on defense counsel's characterization at a change-of-plea of the defendant's mental state to determine whether the defendant pleaded guilty to intentional assault, a "crime of violence" under Ariz. Rev. Stat. §§ 13-1203 and -1204.

The defendant was convicted of illegal reentry following a jury trial. He has a prior conviction for Arizona aggravated assault, see Ariz. Rev. Stat. §§ 13-1203 and -1204. At the state-court change-of-plea hearing on the aggravated assault charge, defense counsel provided the factual basis for the plea, explaining that the defendant "intentionally" hit the victim with a metal bar. Based on this admission, the federal sentencing judge imposed the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and imposed a 77-month sentence.

Arizona's assault statute, Ariz. Rev. Stat. § 13-1203, is categorically overbroad because it defines assault as involving intentional, knowing, or reckless conduct, while the generic definition does not encompass "ordinary" reckless conduct. See United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009). Arizona's statute is divisible, however, so the sentencing judge could look to some Shepard-compliant documents to see whether, under Descamps v. United States, 133 S. Ct. 2276 (2013), the defendant pleaded guilty to generic assault, which is a "crime of violence" for sentencing purposes here.

The state-court indictment and plea agreement tracked the language of the statute, so those documents didn't shed any light on what the defendant pleaded guilty to. The state-court plea colloquy here was the only place to turn for that. Under Shepard, the federal sentencing judge can't look at the state-court plea colloquy for purposes of assessing the factual basis of the plea, but whether the plea necessarily rested on the elements of the generic offense. But under Arizona law, the admission that the assault was intentional did not affect either the elements of the crime or the sentence imposed, so the defendant had no reason to contest defense counsel's characaterization of the conduct as intentional. If the case had gone to trial, the prosecution would have had to prove to a jury that the conduct was intentional. Only if the charging document or the plea agreement -- together with the factual basis for the plea -- indicate that the defendant admitted the elements of a generic offense may the federal sentencing judge conclude that the prior conviction is for generic assault. The panel thus remanded for resentencing without applying the 16-level enhancement.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/23/13-10475.pdf