Texas Assault of Public Servant Not a Crime of Violence
United States v. Zuniga-Soto, ___F.3d ___, No. 06-2364 (10th Cir. 2008)
A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant’s prior conviction for assault of a public servant under Texas law was not a crime of violence. The Texas statute allows convictions for reckless conduct and, therefore, does not require the active use of physical force as required under “developing case law” (Leocal) for commission of the crime. USSG Sec. 2L1.2's “crime of violence” definition is the same as 18 USC Sec. 16, and negligent and reckless mens reas do not satisfy the definition. Nice to get recklessness into the fold.
USSG Sec. 2L1.2's “as an element” provision refers to the elements of the statute underlying the prior conviction, not the facts underlying the prior offense. In conducting the Shepard part of the analysis, the Tenth Circuit clarifies that consultation with the Shepard-approved documents -- plea hearing, etc. -- is not to determine if violence in fact was used in the commission of the earlier offense, but to determine under which portion of the broad statute the defendant was convicted. Otherwise, there were no Shepard-type documents introduced in this case from which the district court could have made the proper determination.
NOTE: The court did not reach Defendant’s second argument because it did not need to; it would have been reviewed under plain error. The Court said it was a valid argument in the final footnote in the opinion.
A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant’s prior conviction for assault of a public servant under Texas law was not a crime of violence. The Texas statute allows convictions for reckless conduct and, therefore, does not require the active use of physical force as required under “developing case law” (Leocal) for commission of the crime. USSG Sec. 2L1.2's “crime of violence” definition is the same as 18 USC Sec. 16, and negligent and reckless mens reas do not satisfy the definition. Nice to get recklessness into the fold.
USSG Sec. 2L1.2's “as an element” provision refers to the elements of the statute underlying the prior conviction, not the facts underlying the prior offense. In conducting the Shepard part of the analysis, the Tenth Circuit clarifies that consultation with the Shepard-approved documents -- plea hearing, etc. -- is not to determine if violence in fact was used in the commission of the earlier offense, but to determine under which portion of the broad statute the defendant was convicted. Otherwise, there were no Shepard-type documents introduced in this case from which the district court could have made the proper determination.
NOTE: The court did not reach Defendant’s second argument because it did not need to; it would have been reviewed under plain error. The Court said it was a valid argument in the final footnote in the opinion.
posted by Anonymous at 2:35 PM
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