U.S. v. Ossana

• Decision Date: 22 April 2011
• Docket Number: No. 10–2205.,10–2205.
• Citation: 638 F.3d 895
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Timothy G. OSSANA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

638 F.3d 895

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy G. OSSANA, Defendant–Appellant.

No. 10–2205.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2011.Filed: April 22, 2011.

Michael Skrien, AFPD, argued, Cape Girardeau, MO, for appellant.Kieth D. Sorrell, AUSA, argued, Cape Girardeau, MO, for appellee.Before MURPHY, HANSEN, and MELLOY, Circuit Judges.MELLOY, Circuit Judge.

Timothy G. Ossana challenges the sentence he received after pleading guilty to being a felon in possession of a firearm. He specifically challenges the district court's calculation of a base offense level pursuant to U.S. Sentencing Guideline § 2K2.1(a)(4)(A), which applies when a defendant in unlawful possession of a firearm has a prior felony conviction for a “crime of violence.” Ossana argues the government failed to establish that a prior Arizona conviction for aggravated assault qualified as a crime of violence. We reverse and remand for resentencing.

I.

In Ossana's presentence investigation report, the probation office recommended a base offense level of twenty pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Ossana had obtained a prior conviction for a “crime of violence.” Without a prior conviction for a crime of violence, the base offense level would have been fourteen. See U.S.S.G. § 2K2.1(a)(6). In support of its recommendation, the probation office recited a conviction for “aggravated Assault, Deadly Weapon/Dangerous Instrument, Superior Court, Pima County, Arizona Docket No. CR–62031.” ¹ Prior to his sentencing hearing, Ossana objected to several paragraphs of the PSR including the paragraph listing the Arizona offense and, by reference, the paragraph stating the prior offense qualified as a crime of violence. Ossana argued the base offense level should be fourteen rather than twenty, and he cited a document from the state-court record in which a judge had indicated the offense was “NONDANGEROUS; NONREPETITIVE.” In addition, Ossana claimed he was appealing the state conviction and the result of the appeal could impact his “offense level as well as his criminal history category.” The government made no objections to the PSR. The probation office responded to Ossana's objection, stating no appeal had overturned the conviction, and “the conviction outlined in paragraph 59 for Aggravated Assault, Deadly Weapon/Dangerous Instrument, qualifies as a crime of violence pursuant to Section 4B1.2(a) and Application Note 1” based on “the elements of the offense.”

At the sentencing hearing, the parties addressed the issue of whether the Arizona conviction for Aggravated Assault qualified as a violent felony, but only in terms of Ossana's general objection. The only discussion of the state-court record focused on Ossana's observation that the state-court judge's written judgment classified the offense as “NONDANGEROUS, NONREPETITIVE.” The parties did not discuss the elements of the underlying Arizona statutory sections at issue, Ariz.Rev.Stat. §§ 13–1203 (simple assault) & 13–1204 (aggravating conditions). In fact, it appears section 13–1203 was not before the court.² The government submitted an exhibit containing state records, as discussed below, and Ossana did not object to the admission of these records.

On appeal to our court, Ossana for the first time presents more fully articulated arguments regarding the applicability of section 2K2.1(a)(4)(A). He renews his reference to the state-court materials identifying the offense as “NONDANGEROUS, NONREPETITIVE.” In addition, he discusses Ariz.Rev.Stat. §§ 13–1203 & 1204 in detail, characterizing the underlying assault statute, section 13–1203, as over-inclusive because it encompasses different offenses, only some of which satisfy the generic elements of assault as relevant for federal enhancement and recidivist provisions. In particular, he argues section 13–1203 defines assault to include various actions, one of which may be satisfied with a mens rea of mere recklessness (if an actual injury results), see Ariz.Rev.Stat. § 13–1203(A)(1) ( “Intentionally, knowingly or recklessly causing any physical injury to another person”), and another one of which may be satisfied with mere insulting or provoking contact (without a requirement for a resultant injury, violent contact, or threats of violence), see id. (A)(3) (“Knowingly touching another person with the intent to ... insult or provoke such person”). He presents additional arguments related to the scope of permissible materials for use in applying the modified categorical approach, and the need to look beyond the state's labels for its offenses to examine the elements of the underlying state offenses.

The government counters that we need look no further than the state's label of “aggravated assault” for the underlying offense. In the alternative, the government argues state records show that Ossana was convicted pursuant to a subsection of the state statute that qualifies as a crime of violence because it has as an element the use or threatened use of force or because it qualifies as a crime of violence pursuant to the “residual clause.” We address these arguments below.

II.

The guideline provision for determining Ossana's base offense level adds six levels to the base offense if the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A). Section 2K2.1 does not itself define the term “crime of violence,” but the commentary to this section states, “ ‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” Section 4B1.2(a), in turn, provides:

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

In addition, Application Note 1 of the Commentary to section 4B1.2 lists several example crimes that qualify as crimes of violence, including, among others, “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses....”

The government first argues that, given the listing of “aggravated assault” in the Commentary to section 4B1.2, we need look no further than the name Arizona chose to place on the statute of conviction, “Aggravated Assault,” or that appears on the written judgment, “Aggravated Assault/Deadly Weapon.” We disagree. In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), when addressing the definition of the term “burglary” as used in 18 U.S.C. § 924(e)(2)(B)(ii),³ the Court held Congress intended the term to have one uniform definition—a definition comporting with “the generic sense in which the term is now used in the criminal code of most States.” Id. at 598, 110 S.Ct. 2143. Importantly, in reaching this conclusion, the Supreme Court rejected the argument that courts could simply look to “whether the State of [the] prior conviction happened to call that conduct ‘burglary.’ ” Id. at 591, 110 S.Ct. 2143. We have recognized that this rule of Taylor also applies to the definitions of terms used in section 4B1.2 and the listed offenses from the commentary to section 4B1.2. See United States v. Malloy, 614 F.3d 852, 857 (8th Cir.2010) (recognizing that courts “cannot rely solely on the label given to a particular crime when deciding whether it qualifies as a crime of violence”); United States v. Ross, 613 F.3d 805, 809 (8th Cir.2010) (“The guidelines typically establish federal definitions for the operative terms rather than incorporate wholesale the labels used by state law.”); see also, United States v. Palomino Garcia, 606 F.3d 1317, 1329 (11th Cir.2010) (“Our sister circuits have ... uniformly rejected the argument advanced by the government here that the label the state happens to attach to the crime of conviction determines whether it is a crime of violence warranting an enhancement under the Guidelines.”).⁴

Our first step in applying the crime-of-violence definition of section 4B1.2(a), then, is to determine whether to apply the categorical or modified categorical approach. Pursuant to the categorical approach, we are concerned only with the fact of a prior conviction and the statutory elements of the underlying offense. See Vinton, 631 F.3d at 484–85. We are not concerned with the particular manner in which Ossana committed the offense or the specific details of his prior criminal act. Id. If, however, the underlying statute encompasses multiple different crimes, only some of which qualify as crimes of violence, we apply the modified categorical approach and examine a limited class of record materials to determine which actual crime Ossana committed. Id. In applying either approach, we examine the elements of the underlying state offense to determine if the conviction necessarily involved “the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), otherwise encompassed the generic definition of one of the enumerated offenses in Application Note 1 of the Commentary to section 4B1.2, or fits within the residual clause of section 4B1.2(a)(2).

Here, the offense of conviction, Ariz.Rev.Stat. § 13–1204, requires proof of a violation of the elements of Ariz.Rev.Stat. § 13–1203, the underlying simple assault statute. Section 13–1203 can be violated with any degree of contact by “[k]nowingly touching another person with the intent to ... insult or provoke such person,” id. at 1203(A)(3). As per Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1270–71, 176 L.Ed.2d 1 (2010), such contact does not qualify as the use of physical force because it is not violent force. Id. (rejecting the argument that “physical...