The 4th Circuit vacates a defendant’s enhanced 60-month sentence for illegal reentry into the U.S. based on the district court’s determination that defendant’s 1997 aggravated assault conviction in Texas was a “crime of violence” under the reentry sentencing guideline; the Texas aggravated assault offense is broader than the federal generic “aggravated assault” offense, is not divisible and cannot support the application of a 16-level enhancement.
On appeal, defendant contends the district court erred in using the modified categorical approach to determine that his 1997 conviction for aggravated assault under Texas Penal Code § 22.02(a) constituted a crime of violence for purposes of USSG § 2L1.2(b)(1) (A). The reentry sentencing guideline advises federal district judges to increase by 12 or 16 the offense level of a defendant convicted of unlawfully entering or remaining in the U.S., if that defendant has a prior felony conviction for a crime of violence.
At sentencing, the district court correctly determined that a violation of § 22.02(a) could potentially qualify as a crime of violence because “aggravated assault” is one of the enumerated offenses listed in the commentary to the reentry guideline. Consequently, the court correctly viewed its task as determining whether the elements of a § 22.02(a) violation correspond in substance to those of the generic definition of aggravated assault.
We agree with the parties and the district court that the inclusion of a mere reckless state of mind renders the Texas statute broader than the generic offense. The dispositive question becomes whether the Texas legislature, in setting out alternative means of satisfying the mens rea element of the Texas statute, rendered the statute divisible such that the state law can be said to have created two offenses, one involving a reckless mens rea, the other involving a knowing or intentional mens rea. We hold that the answer to this latter query is “no.”
The Texas Court of Criminal Appeals has determined that jury unanimity as to mens rea is not required for an aggravated assault conviction under § 22.02(a)(1), (2). The Texas aggravated assault offense created in § 22.02(a) is broader than the federal generic “aggravated assault” offense qualifying under the reentry guideline as supporting an enhanced sentencing range, is not divisible and therefore cannot support the application of a 16-level enhancement under the reentry guidelines.
Vacated and remanded.
U.S. v. Barcenas-Yanez (Davis, S.J.) No. 15-4363, June 21, 2016; USDC at Charlotte, N.C. (Conrad) Joshua B. Carpenter for appellant; Anthony J. Enright, AUSA, for appellee. VLW 016-2-108, 11 pp.