Texas Aggravated Assault Conviction Held to Not Qualify for ACCA Enhancement

US v. Duran, No. 11-1208 (Colo), 10/18/12 (Published) - Defendant pled guilty to felon in possession of a firearm and appealed his sentence. In a win for the defense, the defendant’s sentence was vacated and the case remanded for resentencing. Defendant had been convicted in Texas of aggravated assault. The elements instruction given at trial established that he had intentionally, knowingly or recklessly caused bodily injury to another when using or exhibiting a deadly weapon, in violation of VTCA §§ 222.01(a)(1) and 22.02(a). At sentencing, the court found that this was a crime of violence under USSG § 4B1.2(a), even though it could have been committed recklessly rather than intentionally, because it generally involves serious potential risk of physical injury and was sufficiently similar to typical crimes of violence such as burglary and arson. After the defendant had been sentenced, the Tenth Circuit “unequivocally held that the test of § 4B1.2 only reaches purposeful or intentional behavior” in US v. Armijo, 651 F.3d 1226 (10th Cir. 2011). Applying that principle, defendant’s conviction was not categorically a crime of violence, since it did not require a mens rea of purposeful or intentional conduct. The fact that the defendant used a deadly weapon did not matter, since, under Texas case law, one can recklessly use a deadly weapon to commit a crime and still not commit a crime of violence as defined by federal law.