United States v. Marcia-Acosta, 13–10475.
| Decision Date | 23 March 2015 |
| Docket Number | No. 13–10475.,13–10475. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Merlin MARCIA–ACOSTA, aka Marcos Ramos Garcia, Defendant Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Diego Rodriguez (argued), Rodriguez Law Office PLLC, Phoenix AR, for Defendant–Appellant.
Lacy Cooper (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, and Mark S. Kokanovich, Deputy Appellate Chief, United States Attorney's Office, Phoenix, AR, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Arizona, James A. Teilborg, Senior District Judge, Presiding. D.C. No. 2:12–cr–00318–JAT–1.
Before: RAYMOND C. FISHER, MARSHA S. BERZON, and MORGAN CHRISTEN, Circuit Judges.
Merlin Marcia–Acosta was found guilty under 8 U.S.C. § 1326 of unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. The district court determined, using the modified categorical approach, that Marcia–Acosta's priorstate conviction for aggravated assault, in violation of Arizona Revised Statutes §§ 13–1203 and 13–1204, was a “crime of violence” under that Guideline. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In so determining, it relied upon a single statement by Marcia–Acosta's defense attorney, during the state court plea colloquy, concerning the factual basis for Marcia–Acosta's plea. The district court then applied the § 2L1.2(b)(1)(A)(ii) 16–level sentencing enhancement and imposed a sentence of 77 months in prison.
We hold that the district court's application of the modified categorical approach contravened the principles underlying Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and so vacate Marcia–Acosta's sentence.
Marcia–Acosta is a citizen of Honduras. He unlawfully entered the United States for the first time in 1991. He had fled El Salvador, where he was living at the time, because of that country's civil war. In 2001, Marcia–Acosta sought asylum. His application was denied in 2002.
Marcia–Acosta was indicted in late 2006 for “intentionally, knowingly or recklessly caus[ing] a physical injury” to another “using a metal bar, a deadly weapon or dangerous instrument,” in violation of Arizona's aggravated assault statute, Ariz.Rev.Stat. §§ 13–1203 and 13–1204. Marcia–Acosta pled guilty to the assault; his plea agreement and change of plea order referred to “A.R.S. §§ 13–1203, [and] 13–1204,” but did not specify the subsection of § 131203 to which he pled.1 During the change of plea hearing, Marcia–Acosta confirmed that he voluntarily pled guilty to what the state court judge described as “agg assault, a class 3 felony.” The court then had the following exchange with Marcia–Acosta's trial counsel, Jose Colon:
Marcia–Acosta was sentenced to two-and-a-half years in prison. After serving half his sentence he was deported, in April 2008.
Marcia–Acosta reentered the country the following year. An immigration official later encountered Marcia–Acosta and learned that he had recently entered the country without permission. Marcia–Acosta was then taken into federal custody, and indicted for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Following a two-day jury trial, Marcia–Acosta was found guilty.
The initial Presentence Investigation Report (“PSR”) proposed a four-level sentencing enhancement for Marcia–Acosta's prior aggravated assault conviction. The prosecution filed an objection to the PSR, arguing that the 2007 conviction was for a “crime of violence.” Accordingly, the prosecution argued, Marcia–Acosta should have been given a 16–level enhancement under Section 2L1.2(b)(1)(A)(ii) of the Federal Sentencing Guidelines.' 2 In support of its objection, the prosecution argued that the transcript of the plea colloquy—in particular, Colon's statement that Marcia–Acosta hit the victim on the head “intentionally”—established that his 2007 conviction qualified as a crime of violence, because it corresponded to the “generic” definition of aggravated assault.
The probation department subsequently amended Marcia–Acosta's final PSR to include a 16–level sentencing enhancement, relying upon the change of plea transcript provided by the government. In light of this enhancement and Marcia–Acosta's prior criminal history, the final PSR calculated Marcia–Acosta's Guidelines range as 77 to 96 months, and recommended a sentence of 77 months. Marcia–Acosta objected to the final PSR.
In his sentencing hearing, Marcia–Acosta reiterated his objection to the enhancement, but the district court rejected it, finding that the 2007 change of plea transcript made “clear” that Marcia–Acosta's prior aggravated assault “satisfies the generic definition,” and thus “justifie[d]” the 16–level sentencing enhancement. The district court adopted the PSR's Guidelines calculation and imposed a sentence of 77 months in prison. Marcia–Acosta timely appealed.
We review de novo a district court's determination that a prior conviction constitutes a “crime of violence” under the Federal Sentencing Guidelines. See United States v. Quintero–Junco, 754 F.3d 746, 749 (9th Cir.2014) (citing United States v. Gonzalez–Monterroso, 745 F.3d 1237, 1243 (9th Cir.2014)).
The Federal Sentencing Guidelines generally apply a 16–level sentencing enhancement to a defendant convicted under 8 U.S.C. § 1326 when that “defendant previously was deported” after a conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The definition of “crime of violence” includes the crime of “aggravated assault” under state law. SeeU.S.S.G. § 2L1.2, cmt. n.1 (B)(iii). We use the categorical approach set forth in Taylor v. United States, 495 U.S. at 602, 110 S.Ct. 2143, to determine whether a defendant's prior conviction constitutes a “crime of violence” for the purposes of U.S.S.G. § 2L1.2(b)(1)(A). See United States v. Marquez–Lobos, 697 F.3d 759, 762 (9th Cir.2012). When the statute of conviction “ ‘sweeps more broadly than the generic crime, a conviction under that law cannot [categorically] count as [a qualifying] predicate, even if the defendant actually committed the offense in its generic form.’ ” United States v. Acosta–Chavez, 727 F.3d 903, 907 (9th Cir.2013) (alterations in original) (quoting Descamps, 133 S.Ct. at 2283). “In a narrow range of cases, however, sentencing courts may instead apply the modified categorical approach ... to determine whether the defendant's conviction necessarily involved facts corresponding to the generic federal offense.” Quintero–Junco, 754 F.3d at 751 (internal quotation marks omitted).
Under Arizona law, an individual commits assault by:
1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
Ariz.Rev.Stat. § 13–1203(A). An assault qualifies as felony “aggravated assault” if it was committed under any of the aggravating circumstances described in § 13–1204(A). At the time of Marcia–Acosta's conviction, such aggravating circumstances included, among others, “[i]f the person causes serious physical injury to another” or “[i]f the person uses a deadly weapon or dangerous instrument.” Id. § 131204(A)(1), (2) (2006).3 The 2006 indictment stated that Marcia–Acosta, “using a metal bar, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused a physical injury ... in violation of A.R.S. §§ 13–1203[and] 13–1204.” Given this language, the parties are in accord that Marcia–Acosta was indicted for and pled guilty to § 13–1203(A)(1). The parties also agree that Marcia–Acosta's conviction under § 13–1203(A)(1), as aggravated by § 131204, does not categorically qualify as a crime of violence under our precedent. They are correct.
In United States v. Esparza–Herrera, 557 F.3d 1019 (9th Cir.2009), the government appealed the district court's ruling that Esparza–Herrera's prior conviction for aggravated assault, in violation of Ariz.Rev.Stat. §§ 13–1203(A)(1) and 13–1204(A)(11), was not a conviction for a crime of violence. We determined that the generic aggravated assault offense definition “requires a mens rea of at least recklessness ‘under circumstances manifesting extreme indifference to the value of human life.’ ” Id. at 1025. In Arizona, however, aggravated assault can be committed with a mens rea of ordinary recklessness. SeeAriz.Rev.Stat. § 13–1203(A)(1). Consequently, the statute of conviction “encompasses conduct beyond [generic] aggravated assault,” and, under the categorical approach, is “not a conviction for a crime of violence under Guidelines § 2L1.2(b)(1)(A)(ii).” Esparza–Herrera, 557 F.3d at 1025.
It is at the next stage of inquiry, into the impact of the prior conviction on the Guidelines calculation, that the parties' disagreement arises: The government and Marcia–Acosta dispute whether the district court, applying the modified categorical approach, correctly concluded that Marcia–Acosta had been convicted of committing assault intentionally under §...
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