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Court Vacates Sentence Enhanced for Prior Crime

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.

VLW 016-2-108

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