                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4214
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   BYRON RECINOS,

                                         Appellant
                                     _____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                          District Court No. 1-09-cr-00885-001
                     District Judge: The Honorable Robert B. Kugler


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 28, 2011

                Before: McKEE, Chief Judge, and SMITH, Circuit Judge,
                           and STEARNS, District Judge *

                                 (Filed: February 1, 2011)


                                         OPINION


STEARNS, District Judge.

       Byron Recinos is a twenty-two year old migrant farm worker from Huehuetenango,



       *
        The Honorable Richard G. Stearns, United States District Judge for the United States
District Court of Massachusetts, sitting by designation.
Guatemala, who is residing illegally in the United States. On October 1, 2006, after drinking

beer with some friends at a bar, Recinos drove his car off the road into a tree.1 The

Swedesboro, New Jersey police officers who responded to the accident determined that

Recinos had been driving while intoxicated and took him into custody. At the police station,

Recinos began arguing with the officers after being cited for drunk driving and unlicensed

operation. A scuffle ensued with “some pushing and shoving between [Recinos] and the

police,” after which “one of the police officers alleged that his arm [had been] scratched by

[Recinos’s] hand.” App. at 16 (May 2, 2007 Plea Hr’g Tr.). In addition to the traffic

offenses, Recinos was charged with third-degree “Aggravated Assault - Law Enforcement

Officer.” He pled guilty on May 2, 2007, and was sentenced to a two-year term of probation.




       On August 19, 2007, Recinos was again arrested and charged with robbery, theft,

simple assault, and disorderly conduct. While in custody, Recinos was interviewed by agents

of Immigration and Customs Enforcement (ICE). He admitted to ICE that he had entered the

country illegally in 2004.2 ICE lodged a detainer on September 6, 2007. Recinos was

deported from the United States to Guatemala on January 4, 2008, after the state charges




       1
       Recinos believes that someone had put something in his beer that affected his
memory. He purports to have no present recollection of the events leading up to the accident.
       2
         Section 2L1.2(b)(1)(A) of the United States Sentencing Guidelines (U.S.S.G.)
provides for a 16-level increase for a defendant who was “previously deported . . . after a
conviction for a felony that is a crime of violence.” Aggravated assault is specifically
designated a “crime of violence” by U.S.S.G. § 2L1.2(b)(1)(A)(ii).

                                             2
were dismissed.3

       Recinos illegally re-entered the United States again in April of 2009. He was arrested

on August 16, 2009, in Pennsgrove, New Jersey, on a probation violation warrant. On

December 2, 2009, a federal grand jury in the District of New Jersey returned a one-count

indictment charging Recinos with illegal re-entry after a prior conviction of an aggravated

felony in violation of 18 U.S.C. §§ 1326(a) and (b)(2). On March 9, 2010, Recinos pled

guilty before Judge Kugler in the United States District Court for the District of New Jersey.

At the hearing, Recinos (through counsel) reserved the right to challenge at sentencing the

aggravated felony allegation of the indictment.

           A Pre-Sentence Report prepared by the United States Probation Office (USPO)

recommended a total offense level of 21, consisting of a base offense level of 8 pursuant to

U.S.S.G. § 2L1.2(a); a 16-level enhancement based on Recinos’s unlawful entry after

conviction of a crime of violence – U.S.S.G. § 2L1.2(b)(1)(A)(ii); and a 3-level reduction for

acceptance of responsibility – U.S.S.G. § 3E1.1(a) and (b). Because his Criminal History

Category was III, Recinos’s advisory sentencing guidelines range was 46 to 57 months.

       In a letter to Judge Kugler dated August 2, 2010, Recinos argued that his conviction

for third-degree “Aggravated Assault – Law Enforcement – Officer” did not fit the definition

of a “crime of violence” because the government could not prove that he had committed the

crime “purposefully.” Consequently, Recinos argued for the 4-level enhancement that

applies to a “conviction for any other [nonenumerated] felony.”             See U.S.S.G. §


       3
           The charges were dismissed on November 26, 2007.

                                              3
2L1.2(b)(1)(D). By Recinos’s reckoning, he merited a total offense level of only 10, with

an advisory Guidelines sentencing range of 10 to 16 months. The government objected,

urging the District Court to adopt the recommendations of the USPO.

       At a sentencing hearing on September 23, 2010, Judge Kugler focused on the

transcript of Recinos’s state court guilty plea hearing.4 Noting his admission that he had been

involved in a “pushing and shoving” match with the officers and that one of the officers had



       4
           In the state court plea hearing, Recinos testified as follows.

                Defense counsel:      [O]n October 1, were you in the Borough of
                                      Swedesboro and had you been driving a car?
                Recinos:              Yes.
                Counsel:              Okay. And at some point in time did the police
                                      from Swedesboro come up to you when your car
                                      was disabled on the side of the road?
                Recinos:              Yes.
                Counsel:              All right. And then the police officer wrote you
                                      some tickets, is that correct?
                Recinos:              Correct.
                Counsel:              And an argument ensued between you and the
                                      police, is that correct?
                Recinos:              Yes.
                Counsel:              All right. And then there was some pushing and
                                      shoving between you and the police, is that
                                      correct?
                Recinos:              Yes.
                Counsel:              And one of the police officers alleged that his arm
                                      was scratched by your hand, is that correct?
                Recinos:              Yes.
                Counsel:              And the police officers were wearing uniforms at
                                      the time?
                Recinos:              Yes.

App. at 22-23; 96-97. At the conclusion of the colloquy, the state court accepted Recinos’s
plea of guilty.

                                                4
suffered a scratch to his arm, Judge Kugler found that the assault was purposeful, and not

reckless as Recinos claimed. Judge Kugler adopted the 16-level enhancement and adjourned

the hearing to allow the parties to brief the issue of whether a downward departure was

warranted pursuant to Application Note 7 of U.S.S.G. § 2L1.2.5

       On October 6, 2010, Recinos moved for reconsideration of the District Court’s finding

and for a downward departure pursuant to Application Note 7. In his brief, Recinos argued

that “a conviction under a state statute that can be satisfied by mere recklessness, will not

support the 16-level enhancement for a crime of violence under Guideline Section

2L1.2(b)(l)(A).” App. at 127. Recinos further argued that, contrary to the District Court’s

determination, “the transcript does NOT prove the defendant’s mental state at the time, nor

does any other appropriate document . . . prove or allege a ‘more than reckless’ mental state.”

Id. at l32-133 (emphasis in original).     The government opposed both the motion for

reconsideration and the request for a downward departure.

       On October 27, 2010, the District Court reconvened the sentencing hearing. Judge

Kugler denied Recinos’s motion for reconsideration, stating that he was “still firmly of the

opinion that this qualifies as an intentional purposeful assault.” Id. at 153. He further

explained that, “[h]ere there was an argument resulting in pushing and shoving. Resulted in

the allegation by the police officer in the police station that there was a scratch on his hand

[sic]. There’s no question in my mind that’s purposeful conduct.” Id. Judge Kugler then


       5
         Application Note 7 observes that “[t]here may be cases in which the applicable
offense level substantially overstates or understates the seriousness of a prior conviction. In
such a case, a departure may be warranted.”

                                              5
granted Recinos a two-level downward departure because of his intoxication at the time of

the offense. With a total offense level of 19 and a Criminal History Category of III,

Recinos’s advisory Guidelines sentencing range was 37 to 46 months. After considering the

§ 3553(a) sentencing factors, Judge Kugler sentenced Recinos to 40-months imprisonment.

On October 28, 2010, Recinos filed a timely notice of appeal.

      Recinos’s sole issue on appeal is whether his conviction for “Aggravated Assault –

Law Enforcement Officer” constitutes a crime of violence for purposes of the 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A).6 This is a question of law over which we

exercise plenary review. United States v. Stinson, 592 F.3d 460, 462 n.1 (3d Cir. 2010).

      The New Jersey statute to which Recinos pled guilty, N.J. Stat. Ann. § 2C:12-1,

provides:

      a. Simple assault. A person is guilty of assault if he:

      (1) Attempts to cause or purposely, knowingly or recklessly causes bodily
      injury to another[.] . . .
                                           ...
      b. Aggravated assault. A person is guilty of aggravated assault if he:
                                           ...
      (5) Commits a simple assault as defined in subsection a. (1) . . . of this section
      upon:
      (A) any law enforcement officer acting in the performance of his duties while
      in uniform or exhibiting evidence of his authority or because of his status as


      6
         Recinos argued at the sentencing hearing that under Taylor v. United States, 495
U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13, 26 (2005), the District Court
may look only to the charging document, plea agreement, and plea colloquy to determine
whether an assault conviction constitutes a “crime of violence” under U.S.S.G. § 2L1.2.
Judge Kugler agreed. App. at 107 (Sept. 23, 2010 Mot. Hr’g Tr. at 18). “Therefore Recinos
contends that while the District Court applied the appropriate analysis in this case, its
ultimate conclusion was erroneous.” Appellant Br. at 18.

                                              6
       a law enforcement officer[.] . . .

       Recinos argues that the government failed to establish that he had committed the

offense with the requisite mens rea.7

       Because the statute was charged in the disjunctive, an intent issue is raised. In
       order to “qualify as a crime of violence, the crime at issue must present ‘a
       serious potential risk of physical injury’ and be one that ‘typically involves
       purposeful, violent and aggressive conduct.’” United States v. Lee, 612 F.3d
       170, 196 (3d Cir. 2010), quoting Begay v. United States, 553 U.S. 137-144-
       145 (2008). Begay “expressly distinguished crimes involving negligence or
       recklessness from those involving violence or aggression. Thus, following
       Begay, a conviction for mere recklessness cannot constitute a crime of
       violence.” Id.

Appellant Br. at 15.

       A “crime of violence” as defined in the Application Notes to U.S.S.G. § 2L1.2

includes aggravated assault “or any offense under federal state, or local law that has an

element the use, attempted use, or threatened use of physical force against the person of

another.” U.S.S.G. § 2L1.2 cmt. N.1(B)(iii). As the judgment in Recinos’s state court

conviction did not specify whether the court had found Recinos guilty of purposeful or

reckless conduct, the conviction is not categorically a crime of violence.           Given the

ambiguity, Judge Kugler applied the modified categorical approach endorsed by Taylor and



       7
          Recinos contends that, because the Alcotest administered at the police station
showed his blood alcohol level to be .23 percent, “it is impossible to conclude with any
certainty, and clearly not by a preponderance of the evidence, that [he] acted purposely or
knowingly, rather than accidentally or recklessly, when he committed the assault.” Appellant
Br. at 19. As the blood alcohol test results appear only in the police reports, we do not
consider them, see Shepard, 544 U.S. at 22-23, although we note that voluntary intoxication
is not ordinarily a defense to a crime of general intent. See, e.g., People v. Boyer, 38 Cal. 4th
412, 469, 133 P.3d 581, 622 (2006).

                                               7
Shepard (appropriately, as Recinos concedes) , and looked to the guilty plea transcript.

       The touchstone of a “crime of violence” is the intent to use force. United States v.

Otero, 502 F.3d 331, 355 (3d Cir. 2007) (distinguishing intentional from reckless or grossly

negligent conduct). An assault and battery requires a general intent to do the act causing

injury. Although the New Jersey statute is captioned “Assault,” the offense described clearly

encompasses common-law assault and battery as it incorporates the element of a touching

causing bodily injury. There is no requirement under the common law that the actor have a

specific intent to violate the law or to cause any particular type of harm. He need only intend

to commit the act that results in the unconsented and harmful touching of another.8 The


       8
           The following exchange between Recinos’s counsel and the Court is telling.

       Defense counsel:      So, let me say, I think that this case is sufficiently
                             unusual, that the facts take it outside the realm that this
                             isn’t even a typical case where a defendant has agreed to
                             having assaulted the officer. Yes, he touched him and a
                             scratch resulted but in this particular –
       Court:                How is that not assault by touching him?
       Counsel:              It’s a simple assault, unintentional or reckless conduct.
                             It happened as part of a pushing and shoving match
                             between the officer and the defendant.
       Court:                But in order for the defendant to have shoved a police
                             officer, he must have intended to shove the police
                             officer. How does one shove a police officer negligently
                             or recklessly?
       Counsel:              And I think the pushing occurred intentionally, but
                             perhaps in response to the officer’s pushing of the
                             defendant.
       Court:                That still doesn’t make it unintentional. The fact that
                             someone may have pushed him first, when he goes to
                             push the officer back, that’s not unintentional.

       App. at 98.

                                              8
touching need not be inherently violent to constitute a battery. The slightest use of force

against another’s person, if offered without justification or excuse, constitutes an intentional

battery.9

       The District Court correctly found that Recinos intentionally engaged in the use of

force (pushing and shoving) against a person or persons who he knew to be uniformed

officers and that bodily injury resulted. These findings satisfied both the purposeful element

of the New Jersey statute and the requirements of U.S.S.G. § 2L1.2.10

       Accordingly, we will affirm the judgment of the District Court.




       9
         Blackstone’s treatise defines the common-law crime (or tort) of battery as follows.
“Battery: which is the unlawful beating of another. The least touching of another’s person
wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees
of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person
being sacred, and no other having a right to meddle with it in even the slightest manner.” 3
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *120.


       10
         We can discern no difference between the term “purposely,” as it is used in the New
Jersey statute to describe the required state of mind, and the more usual term “intentional.”
Under New Jersey law, “purposely” is defined as follows.

       A person acts purposely with respect to the nature of his conduct or a result
       thereof if it is his conscious object to engage in conduct of that nature or to
       cause such a result. A person acts purposely with respect to attendant
       circumstances if he is aware of the existence of such circumstances or he
       believes or hopes that they exist.

N.J. Stat. Ann. § 2C:2-2b(1).


                                               9
