                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               October 18, 2012
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
       v.                                              No. 11-1308
 JARROD DURAN,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 1:10-CR-00593-PAB-1)


Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with him on the briefs) Office of the Federal Public
Defender, Denver, Colorado, for Appellant.

May Kim, Special Assistant United States Attorney (John F. Walsh, United States
Attorney, with her on the brief) Office of the United States Attorney, Denver,
Colorado, for Appellee.


Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Jarrod Duran challenges the procedural reasonableness of his forty-one-

month sentence, claiming that his prior conviction for aggravated assault under
Texas law was not a crime of violence under the United States Sentencing

Guidelines (USSG). Because we agree that under Texas law aggravated assault

can be committed with only a mens rea of recklessness, it is not categorically a

crime of violence.

      We therefore remand for resentencing.

                              I. Background

      Duran pleaded guilty to one count of possession of a firearm by a convicted

felon. His plea arose from a police encounter in Trinidad, Colorado, where he

was apprehended fleeing the scene of an attempted residential burglary. The

police were responding to a call by local residents who reported they had heard

gunshots and breaking glass. The police found two .40 caliber ammunition

rounds in Duran’s pocket and several spent rounds of the same type around the

home. Near this home they also found a Glock pistol still loaded with

ammunition of the same type. Duran tested positive for gunshot residue.

      He was arrested for possession of a firearm by a convicted felon. After

pleading guilty and prior to sentencing, it was determined that Duran had a prior

felony conviction for aggravated assault in Texas, for which he received an eight-

year sentence. For purposes of sentencing, he reserved the right to challenge

whether this offense was a crime of violence, which might enhance his sentence

under the Sentencing Guidelines.



                                        -2-
      At the sentencing hearing the district court found that aggravated assault

was a crime of violence under the residual clause of the guideline, which

encompasses any crime that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” USSG § 4B1.2(a). The district court

reasoned that the conduct involved in an aggravated assault—even if recklessly

done—generally involves serious potential risk of physical injury and was

sufficiently similar to typical crimes of violence such as burglary and arson.

      But between the time of the sentencing hearing and this appeal we have

held that a crime of violence cannot fall under the residual clause unless it is an

intentional crime—criminal recklessness is insufficient. United States v. Armijo,

651 F.3d 1226, 1237 (10th Cir. 2011). 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. We thus must answer that question in this appeal.

                                  II. Analysis

      Whether a statute defines a “crime of violence” for purposes of USSG

§ 4B1.2 is a question of statutory construction, which we review de novo. United

States v. Riggans, 254 F.3d 1200, 1203 (10th Cir. 2001).




                                          -3-
      A. Evaluating Crimes of Violence

      Under the Sentencing Guidelines, 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.

USSG § 4B1.2(a). The application notes to § 4B1.2(a) further provide that the

term “crime of violence” includes:

      murder, manslaughter, kidnapping, aggravated assault, forcible sex
      offenses, robbery, arson, extortion, extortionate extension of credit,
      and burglary of a dwelling. Other offenses are included as “crimes
      of violence” if (A) that offense has as an element the use, attempted
      use, or threatened use of physical force against the person of another,
      or (B) the conduct set forth (i.e., expressly charged) in the count of
      which the defendant was convicted involved use of explosives
      (including any explosive material or destructive device) or, by its
      nature, presented a serious potential risk of physical injury to
      another.

Id. § 4B1.2 cmt. n.1.

      “In determining whether a particular felony offense constitutes a crime of

violence within the meaning of § 4B1.2, we employ a ‘categorical’ approach that

omits consideration of the particular facts of the case.” United States v. Vigil,

334 F.3d 1215, 1218 (10th Cir. 2003). Under the “categorical approach we

consider the offense generically, that is to say, we examine it in terms of how the

                                         -4-
law defines the offense and not in terms of how an individual offender might have

committed it on a particular occasion.” United States v. Rooks, 556 F.3d 1145,

1147 (10th Cir. 2009) (quotation omitted).

      Applying this approach “[i]f the criminal statute setting out the predicate

felony is ambiguous, or broad enough to encompass both violent and nonviolent

crimes, we employ the so-called ‘modified categorical approach’ which allows

analysis of certain records of the prior proceeding, such as the charging

documents, the judgment, any plea thereto, and findings by the sentencing court.”

Armijo, 651 F.3d at 1230 (quotation omitted). This review “does not involve a

subjective inquiry into the facts of the case, but rather its purpose is to determine

which part of the statute was charged against the defendant and, thus, which

portion of the statute to examine on its face.” United States v. Charles, 576 F.3d

1060, 1067 (10th Cir. 2009) (quotation omitted).

      In this case we apply the modified categorical approach because Texas law

broadly defines aggravated assault to situations that might involve nonviolent or

reckless acts.

      B. Texas Law

             1. Aggravated Assault

      Duran’s prior conviction was for aggravated assault. Under Texas law, a

person commits aggravated assault if the assault:




                                          -5-
      (1) causes serious bodily injury to another, including the person’s
      spouse; or

      (2) uses or exhibits a deadly weapon during the commission of the
      assault.

Id. § 22.02(a). As part of the elements of aggravated assault, the statute

incorporates the elements of simple assault, which commands:

      (a) A person commits an offense [of simple assault] if the person:

      (1) intentionally, knowingly, or recklessly causes bodily injury to
      another, including the person's spouse;

Tex. Penal Code § 22.01(a)(1) (emphasis added).

      Duran was charged under the aggravated assault provision. The record

includes the instructions given to Duran’s Texas jury on the elements of the crime

of aggravated assault:

      Our law provides that a person commits an assault if (1) the person
      intentionally or knowingly or recklessly causes bodily injury to
      another or (2) intentionally or knowingly threatens another with
      imminent bodily injury. Such assault is aggravated assault when the
      actor uses or exhibits a deadly weapon during the commission of the
      assault.

R., Vol. I at 52. Based on this instruction, Duran was convicted of “intentionally

or knowingly or recklessly caus[ing] bodily injury to another.” Tex. Penal Code

§ 22.01(a)(1). By the plain meaning of the statute and the jury instruction, the

offense of conviction admits to three distinct possibilities for satisfying the mens

rea requirement—intentionally, knowingly, or recklessly.




                                         -6-
             2. Purposeful Conduct and Mens Rea

      We have “unequivocally held that the text of § 4B1.2 only reaches

purposeful or intentional behavior.” Armijo, 651 F.3d at 1236. “[I]n interpreting

the language of, or language identical to that used in § 4B1.2(a), this court has

specifically held that only those crimes with a mens rea of intent or purpose

qualify as crimes of violence.” Id. at 1234. This is true even for § 4B1.2’s

residual clause or when the prior felony comes within the list of crimes

enumerated in § 4B1.2’s application notes, which includes both manslaughter (at

issue in Armijo) and aggravated assault, the crime committed by Duran. Id. at

1234–35. 1 The sentencing enhancement for a prior felony crime of violence may

therefore only apply to Duran if the mens rea for his conviction required

intentional conduct, not recklessness. We turn to that inquiry next.

      In a prior case construing Texas law, we applied this principle to simple

assault and found that a violation of Texas Penal Code § 22.01(a)(1) is not a

“crime of violence” because it allows for a mens rea of recklessness. United

States v. Zuniga-Soto, 527 F.3d 1110, 1117 (10th Cir. 2008) (construing language


      1
          Some cases have questioned whether our decision in Armijo, applying
Sykes v. United States, 131 S. Ct. 2267 (2011), is entirely consistent with the
Court’s earlier precedent, Begay v. United States, 553 U.S. 137 (2008), or if
Begay is still good law. United States v. Sandoval, No. 11-1303, 2012 WL
4784466 (10th Cir. Oct. 9. 2012). If Begay still applies to crimes “akin to strict
liability, negligence, and recklessness,” Sykes, 131 S. Ct. at 2276, it is possible
that at least some crimes with a recklessness element might be crimes of violence.
But Armijo seems to foreclose this inquiry in our circuit.

                                         -7-
in USSG § 2L1.2, identical to the first of the two alternate definitions of crime of

violence set out in § 4B1.2(a)).

      Only one difference can be discerned between simple assault under Texas

law, which we have found is not a crime of violence, id., and aggravated assault:

the use or exhibition of a deadly weapon.

      The government argues this difference is crucial. It contends this case can

be distinguished from Armijo and Zuniga-Soto because the element of using a

deadly weapon requires a level of mens rea beyond recklessness. There is some

force to this argument, but we find it foreclosed by Texas case law—Texas courts

have held that each of the elements of aggravated assault may be committed

recklessly.

      “[T]he elements of aggravated assault are 1) the defendant 2) intentionally,

knowingly, or recklessly 3) caused bodily injury to another and 4) used a deadly

weapon.” Butler v. State, 928 S.W.2d 286, 288 (Tex. App. 1996). “It is clear

from the statutory definition of aggravated assault that the culpable mental states

of intent, knowledge, and recklessness relate to the assault element of causing

bodily injury to another,” and “a second culpable mental state is not required to

be included with the deadly weapon element.” Id. Thus, under this authority one

can recklessly “use or exhibit” a deadly weapon.

      The government argues that, Butler notwithstanding, Texas law in fact

requires a heightened mental state for the use of a deadly weapon. The

                                         -8-
government supports this argument by pointing to Patterson v. State, 769 S.W.2d

938 (Tex. Crim. App. 1989) (en banc), for the proposition that the use and

exhibition of a deadly weapon during the commission of an offense necessarily

involves intentional, purposeful conduct. The defendant in Patterson was

convicted of possession of methamphetamine with intent to distribute. The

defendant had a gun on him at the time of arrest, but never exhibited it or took it

out of its hiding place. The question was whether the jury properly found that he

had “used” a deadly weapon during the commission of his drug offense, a finding

that made him ineligible for probation.

      To answer this question, the court in Patterson relied on a dictionary

definition which implies deliberate purpose: “‘[U]se’ is defined as ‘to put into

action or service: have recourse to or enjoyment of: employ ... to carry out a

purpose or action by means of: make instrumental to an end or process: apply to

advantage: turn to account: utilize.’” Id. at 940–41 (quoting W EBSTER 'S T HIRD

N EW I NTERNATIONAL D ICTIONARY 2253-24 (1976)). The defendant argued that

the gun’s purpose, if any, was to protect his cash. Id. at 940. The court held that

this was sufficient: “‘[U]sed ... a deadly weapon’ during the commission of the

offense means that the deadly weapon was employed or utilized in order to

achieve its purpose.” Id. at 941. The government argues that if a defendant only

“uses” a deadly weapon when he employs it “to carry out a purpose,” then the use

of a deadly weapon necessarily implies true intent rather than mere recklessness.

                                          -9-
       But Patterson addressed nothing about the mens rea requirement when a

weapon is used as part of an assault. As explained in a subsequent Texas case,

“possession of a weapon to facilitate a felony, as in Patterson, constitutes the use

of that weapon, whereas mere possession of the weapon without putting it to any

use or purpose whatsoever does not.” Tyra v. State, 897 S.W.2d 796, 798 (Tex.

Crim. App. 1995). For aggravated assault, the defendant must do something with

a deadly weapon that, in fact, causes serious bodily injury to the victim, and

under Texas law that can be done recklessly.

      Texas courts have thus rejected the argument that under Patterson there

cannot be a conviction for any crime that involves the use of a deadly weapon

“unless the evidence supports a conclusion that the accused actually intended to

use an object in such a way as to cause” the harm that might otherwise have

occurred through recklessness. Id. at 797. Tyra held that purely reckless crimes

can still involve the use of a deadly weapon:

      When the word ‘use’ is understood in either of these senses,
      according to the rules of grammar and usage as Patterson counsels,
      and the term ‘deadly weapon’ is understood as defined by the
      Legislature, it is reasonably clear that driving an automobile
      constitutes the use of it and that driving it in a manner capable of
      causing death or serious bodily injury constitutes it a deadly weapon.

Id. at 798. Under Texas law, driving a car recklessly can constitute the use of a

deadly weapon.




                                        -10-
      It is thus clearly possible to commit a crime that involves the use of a

deadly weapon under Texas law without committing a crime of violence under

federal law. Manslaughter through reckless driving, the offense considered in

Tyra, would not be a crime of violence, given that neither manslaughter nor

reckless driving on its own is a crime of violence. Armijo, 651 F.3d at 1237;

Begay v. United States, 553 U.S. 137 (2008). The same logic applies to

recklessly using a firearm. As the court in Tyra said, “Had the appellant in this

case recklessly caused the death of another by carelessly discharging a firearm in

his direction, it is unlikely there would be much dispute about his use of a deadly

weapon.” 897 S.W.2d at 798.

      There are other examples of situations where a defendant could commit

Texas aggravated assault without committing a crime of violence. The district

court suggested a hunting accident might be aggravated assault under Texas

law—not the type of “purposeful, violent, and aggressive” conduct covered by the

“crime of violence” provisions. Begay, 553 U.S. at 145. And when discussing a

similar Colorado statute, we suggested that a defendant could “knowingly or

recklessly [cause] bodily injury to another person or with criminal negligence

[cause] bodily injury to another person by means of a deadly weapon” without

committing a crime of violence under USSG § 2L1.2 (a provision similar to the

one at issue here) by “recklessly shooting a gun in the air to celebrate.” United

States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005).

                                        -11-
      In sum, aggravated assault under Texas law could be committed with a

reckless state of mind. Our case law therefore forecloses it from categorically

qualifying as a crime of violence.

                              III. Conclusion

      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 USSG § 4B1.2(a) and the sentencing enhancement does not apply.

We therefore remand to the district court for resentencing.




                                       -12-
