Colorado 2d Degree Assault Held to Be ACCA Predicate Offense

U.S. v. Sandoval, 2012 WL 4784466 (10/9/12) (Col.) (Published) - The 10th finds yet another offense is a "violent felony" under the ACCA's residual clause. This time it's Colorado's 2d degree assault committed in the heat of passion. The Begay "purposeful, violent and aggressive" test does not apply because the offense required the specific intent to cause bodily injury. The heat of passion stuff doesn't matter at all. Even if Begay applied, the offense was not less violent and intentional just because it was impulsive. In a footnote, the 10th goes on to question whether Begay is good law any more even when the crime is not intentional, given Sykes' disparaging comments about Begay's test, including that it did not have a textual link. This in turn, the 10th strongly hints, calls into question its precedent that finds offenses not be violent felonies when they are committed recklessly. On the bright side, the 10th expresses its impatience with the "legion" of cases involving the interpretation of the ACCA and favorably footnotes Justice Scalia's dissent in Derby v. U.S. 131 S. Ct. 2858 (2011), opining that the ACCA's residual clause is unconstitutionally vague.