United States v. Duran 2012 WL 4947031 (10th Cir. 2012).
Prior aggravated assault under Texas law was not a “crime of violence” under §4B1.2(a).
The defendant was apprehended fleeing the scene of an attempted residential burglary after residents called reporting gunshots and breaking glass. Thepolice found two .40 caliber rounds in his pocket and several spent rounds of the same type around the home, as well as a Glock pistol still loaded with ammunition of the same type. The defendant tested positive for gunshot residue. He was arrested for possession of a firearm by a convicted felon and ultimately pled guilty. Prior to sentencing, it was determined that the defendant had a prior felony conviction for aggravated assault in Texas, for which he received an eight-year sentence. At the sentencing hearing the district court found that aggravated assault was a crime of violence under the residual clause of §4B1.2(a), which encompasses any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The district court reasoned that an aggravated assault, even if recklessly done, generally involved serious potential risk of physical injury and was sufficiently similar to typical crimes of violence such as burglary and arson. However, between the sentencing hearing and the defendant’s appeal, the Tenth Circuit held that a crime of violence could not fall under the residual clause unless it was an intentional crime; criminal recklessness was insufficient. See United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011). Because the district court did not have the benefit of Armijo in considering whether Texas law did or did not allow for a mens rea of recklessness, that became the issue on appeal. Applying the modified categorical approach (because Texas law broadly defines aggravated assault to situations that might involve nonviolent or reckless acts), the appeals court found that aggravated assault under Texas law can be committed with a reckless state of mind; therefore, circuit law foreclosed it from categorically qualifying as a crime of violence. “Because a defendant can commit aggravated assault under Texas law with a mens rea no higher than recklessness, this crime is not categorically a crime of violence under §4B1.2(a) and the sentencing enhancement does not apply. We therefore remand to the district court for resentencing.”