                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-10475
               Plaintiff-Appellee,
                                           D.C. No.
                v.                      2:12-cr-00318-
                                            JAT-1
MERLIN MARCIA-ACOSTA, AKA
Marcos Ramos Garcia,
            Defendant Appellant.           OPINION


      Appeal from the United States District Court
               for the District of Arizona
   James A. Teilborg, Senior District Judge, Presiding

               Argued and Submitted
    September 12, 2014—San Francisco, California

                 Filed March 23, 2015

     Before: Raymond C. Fisher, Marsha S. Berzon,
         and Morgan Christen, Circuit Judges.

               Opinion by Judge Berzon
2            UNITED STATES V. MARCIA-ACOSTA

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence imposed upon a defendant
convicted of unlawful reentry into the United States, and
remanded for resentencing, in a case in which the district
court determined, using the modified categorical approach,
that the defendant’s prior state conviction for aggravated
assault, in violation of Arizona Revised Statutes §§ 13-1203
and 13-1204, was a “crime of violence” under U.S.S.G.
§ 2L1.2.

   The panel held that the district court’s application of the
modified categorical approach contravened the principles
underlying Descamps v. United States because the district
court, in concluding that the defendant had pled to the generic
elements of aggravated assault, relied solely upon a statement
by defense counsel, during the state court plea colloquy,
concerning the factual basis for the defendant’s plea.

    The panel emphasized that courts remain restricted to the
modified categorical approach’s focus on the elements, rather
than the facts, of a crime. The panel wrote that in a case like
this one – in which there is no narrowing through the
indictment, information, or other charging document, and no
narrowing of the offense of conviction through the actual
conviction documents or pleas – a sentencing court may not
rely on an extraneous factual-basis statement detail, standing
alone, to supply the narrowing for purposes of the modified

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. MARCIA-ACOSTA                   3

categorical approach. The panel could say for sure only that
the Shepard documents do not prove that the defendant was
convicted of the crime of intentional (or knowing) aggravated
assault, and so the modified categorical approach is not
satisfied.


                         COUNSEL

Diego Rodriguez (argued), Rodriguez Law Office PLLC,
Phoenix Arizona, 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, Arizona, for Plaintiff-Appellee.


                         OPINION

BERZON, Circuit Judge:

     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 prior
state 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 (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
4             UNITED STATES V. MARCIA-ACOSTA

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, 133 S. Ct. 2276
(2013), and so vacate Marcia-Acosta’s sentence.

                                    I.

    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 § 13-
1203 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:



    1
   Arizona’s aggravated assault statute, Ariz. Rev. Stat. § 13-1204, cross-
references Arizona’s simple assault statute, id. § 13-1203, and sets forth
aggravating circumstances. See p. 8, infra.
            UNITED STATES V. MARCIA-ACOSTA                   5

       THE COURT: Mr. Colon, any factual basis?

       MR. COLON:          Your Honor, back on
       December 8th, 2006, at 400 South 9th Avenue
       — it was in Phoenix, Arizona, Maricopa
       County — [Marcia-Acosta] got into an
       altercation with the victim. At this point he
       grabbed a metal bar. He hit the victim on the
       head, and he caused an injury to the victim’s
       skull. And he did that intentionally.

       THE COURT: Any additions or corrections
       for the record?

       [PROSECUTOR]: No, Your Honor.

       THE COURT:            The Court finds the
       defendant’s plea is knowingly, intelligently,
       and voluntarily made. There is a factual basis
       for it. Please accept it entered of record.

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.
6              UNITED STATES V. MARCIA-ACOSTA

    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


    2
     Section 2L1.2(b)(1) provides: “If the defendant previously was
deported, or unlawfully remained in the United States, after . . . (A) a
conviction for a felony that is . . . (ii) a crime of violence . . . increase by
16 levels if the conviction receives criminal history points under Chapter
Four . . . .”
            UNITED STATES V. MARCIA-ACOSTA                  7

“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.

                             II.

    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. See U.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, 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
8              UNITED STATES V. MARCIA-ACOSTA

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. § 13-
1204(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


    3
   Ariz. Rev. Stat. § 13-1204 has been amended numerous times since
Marcia-Acosta’s conviction in 2007. All references to § 13-1204 in this
opinion are to the 2006 version.
            UNITED STATES V. MARCIA-ACOSTA                   9

[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 § 13-
1204, 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. See Ariz. 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 § 13-1203(A)(1). If so, the generic
aggravated assault offense definition was satisfied. We turn
to that question, beginning with the general principles
governing the modified categorical approach.
10          UNITED STATES V. MARCIA-ACOSTA

                              III.

                               A.

    In Descamps, the Supreme Court clarified that the
modified categorical approach serves a “limited function,”
“effectuat[ing] the categorical analysis when a divisible
statute, listing potential offense elements in the alternative,
renders opaque which element played a part in the
defendant’s conviction.” Descamps, 133 S. Ct. at 2283. To
determine whether a statute is divisible, we consider whether
“an element of the crime of conviction contains alternatives,
one of which is an element of its federal analogue.”
Acosta-Chavez, 727 F.3d at 909 (citing Descamps, 133 S. Ct.
at 2283–84).

    Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014),
recently held that a disjunctive statute is divisible “only if it
contains multiple alternative elements, as opposed to multiple
alternative means.” More specifically, under Rendon, “[o]nly
when state law requires that in order to convict the defendant
the jury must unanimously agree that he committed a
particular substantive offense contained within the
disjunctively worded statute are we able to conclude that the
statute contains alternative elements and not alternative
means.” Id. As only two of the three mental states listed in
the disjunctive in § 13-1203(A)(1) — “intentionally” and
“knowingly” — are elements of the federal analogue of
aggravated assault, Arizona’s aggravated assault statute
would be subject to the modified categorical approach under
Rendon only if such mental states are considered alternative
elements, rather than alternative means.
               UNITED STATES V. MARCIA-ACOSTA                               11

    Marcia-Acosta did not argue in his opening brief that
Arizona’s aggravated assault statute is not divisible.
Accordingly, we conclude that Marcia-Acosta waived any
argument concerning the statute’s divisibility. See United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)
(“Generally, an issue is waived when the appellant does not
specifically and distinctly argue the issue in his or her
opening brief.”).4 We thus assume, without deciding, that
Arizona’s aggravated assault statute does state alternative
mens rea elements, is therefore divisible, and so must be
analyzed under the modified categorical approach.

                                      B.

    Our question, then, is whether the district court correctly
applied the modified categorical approach when it relied upon
the single factual-basis statement made by Marcia-Acosta’s
attorney during the 2007 plea colloquy to conclude that
Marcia-Acosta’s prior conviction qualified as a crime of
violence. We hold that it did not.

    When the statute of conviction is divisible, “the modified
categorical approach permits sentencing courts to consult a
limited class of documents . . . to determine which alternative
formed the basis of the defendant’s prior conviction.”
Descamps, 133 S. Ct. at 2281. These documents include “the
charging document, the terms of a plea agreement or

  4
   In his reply brief, Marcia-Acosta stated that he “does not concede . . .
that the statute at issue[] constitutes a divisible statute,” but articulated no
argument in support of this statement. Thus, even if we were to consider
an issue raised for the first time in a reply brief, his argument has been
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
12          UNITED STATES V. MARCIA-ACOSTA

transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or . . . some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005). “The court
can then . . . compare the elements of the crime of conviction
(including the alternative element used in the case) with the
elements of the generic crime.” Descamps, 133 S. Ct. at
2281.

    Consideration of only “the elements of the crime of
conviction” is the pivotal concept in applying the modified
categorical analysis. Descamps emphasizes that a court
cannot use the modified categorical approach “to try to
discern what a trial showed, or a plea proceeding revealed,
about the defendant’s underlying conduct.” Id. at 2288.
Instead, the modified approach must “retain[] the categorical
approach’s central feature: a focus on the elements, rather
than the facts, of a crime.” Id. at 2285.

    In this case, two of the available Shepard-approved
documents — the charging documents and plea agreement —
refer generally to Arizona’s aggravated assault statute, and so
provide no insight as to the mens rea aspect of § 1203(A)(1)
that formed the basis of Marcia-Acosta’s conviction. In
concluding that Marcia-Acosta had pled to the generic
elements of aggravated assault, the district court relied solely
upon part of defense attorney Colon’s factual-basis statement
during the 2007 plea colloquy — that Marcia-Acosta had
assaulted the victim “intentionally.”

    Sentencing courts may review the plea colloquy or other
“comparable judicial record.” Shepard, 544 U.S. at 26.
Shepard emphasizes, however, that “any enquiry beyond
statute and charging document must be narrowly restricted to
                UNITED STATES V. MARCIA-ACOSTA                         13

implement the object of the statute and avoid evidentiary
disputes.” Id. at 23 n.4. The focus of a court’s examination
of the transcript of the plea colloquy therefore must be “not
to determine ‘what the defendant and state judge must have
understood as the factual basis of the prior plea,’” Descamps,
133 S. Ct. at 2284 (emphasis added) (quoting Shepard,
544 U.S. at 25), but to assess “whether the plea had
‘necessarily’ rested on the fact identifying the [offense] as
generic,” Shepard, 544 U.S. at 21 (quoting Taylor, 495 U.S.
at 602). So restricting the examination of plea colloquies
assures that a sentencing court not “substitute . . . a facts-
based inquiry for an elements-based one.” Descamps, 133 S.
Ct. at 2293.

    This focus is particularly critical in the plea-bargaining
context. As Descamps specifically cautioned, factual
admissions made during a plea hearing may be “downright
wrong,” because the defendant “often has little incentive to
contest facts that are not elements of the charged offense,”
and “the defendant may not wish to irk the prosecutor or
court by squabbling about superfluous factual allegations.”
Id. at 2289. When a defendant pleads guilty to a crime, “he
waives his right to a jury determination of only that offense’s
elements; whatever he says, or fails to say, about superfluous
facts cannot license a later sentencing court to impose extra
punishment.” Id. at 2288.5

 5
     Justice Kennedy elaborated on this point in his Descamps concurrence:

           [I]n the regular course of the criminal process,
           convictions may be entered, often by guilty pleas, when
           either the attorney or the client, or both, have given no
           consideration to possible later consequences . . . . As a
           result, certain facts in the documents approved for
           judicial examination . . . may go uncontested because
14                UNITED STATES V. MARCIA-ACOSTA

    Consistent with these admonitions, our post-Descamps
decisions have recognized that sentencing courts’ review of
plea colloquies or other “comparable judicial record[s],”
Shepard, 544 U.S. at 26, for modified categorical approach
purposes must be appropriately circumscribed to identify the
elements pled to, not the underlying facts. United States v.
Quintero-Junco, 754 F.3d at 752, for example, held that a
district court “misapplied the modified categorical approach”
by “review[ing] the transcript of Quintero-Junco’s plea
colloquy” to determine whether the defendant had been
convicted of the elements under Arizona’s sexual abuse
statute that corresponded to the generic federal forcible sex
offense. In that case, the district court had determined that
the conduct described in the transcript of the plea colloquy,
“show[ing] that Quintero–Junco was accused of attempting
forcibly to remove a woman’s clothing in order to touch her
breasts,” constituted a forcible sex offense. Id. We held this
application of the modified categorical approach “flawed” as
violative of Descamps, because it focused on whether the
defendant “‘actually’ committed the generic crime,” rather
than on the elements of the statute for violation of which he
was convicted. Id.6


             they do not alter the sentencing consequences of the
             crime, even though their effect is to require a later
             enhancement . . . . This significant risk of failing to
             consider the full consequences of the plea and
             conviction is troubling.

         Id. at 2293 (Kennedy, J., concurring) (citations omitted).
     6
      Quintero-Junco held the district court’s error “inconsequential”
because the indictment to which Quintero-Junco pled guilty contained the
“statutory alternative” that “categorically match[ed] the elements of the
generic definition.” Quintero-Junco, 754 F.3d at 752; see also Coronado
v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (permitting reliance, under
              UNITED STATES V. MARCIA-ACOSTA                          15

    Similarly, in United States v. Cabrera-Perez, 751 F.3d
1000 (9th Cir. 2014), the defendant, like Marcia-Acosta,
argued that his prior aggravated assault conviction under
Ariz. Rev. Stat. §§ 13-1203 and 13-1204 did not constitute a
“crime of violence.” He contended — and we accepted —
that the transcript of the plea colloquy was “devoid of
evidence regarding [his] intent.” Id. at 1006 n.6 (internal
quotation marks omitted). We held that Cabrera-Perez’s
conviction qualified as a “crime of violence” under the
modified categorical approach, but only because the plea
colloquy and the written plea agreement referred directly
back to the charging language of the complaint, which had
“narrow[ed] the charge to generic limits.” Id. at 1006
(internal quotation marks omitted).7

    The charging document and plea agreement in this case,
unlike those in Quintero-Junco or Cabrera-Perez, shed no
light on whether Marcia-Acosta’s prior conviction meets the
generic elements of aggravated assault. Rather, they merely
restate the disjunctively phrased list of mens rea elements in
the cross-referenced statute, § 13-1203(A)(1). Attorney
Colon’s statement supplying the factual basis at Marcia-
Acosta’s change of plea hearing is thus the only support for


the modified categorical approach, on a certified electronic docket and
minutes that “specif[y] that a defendant pleaded guilty to a particular
count of a criminal complaint”).
    7
       Cabrera-Perez’s criminal complaint “track[ed] the language,”
Cabrera-Perez, 751 F.3d at 1006, of § 13-1203(A)(2), which proscribes
“intentionally placing another person in reasonable apprehension of
imminent physical injury.” Ariz. Rev. Stat. § 13-1203(A)(2). In contrast
to Marcia-Acosta’s conviction under § 13-1203(A)(1), a conviction under
§ 13-1203(A)(2) is a categorical crime of violence, as it “proscribes only
intentional conduct.” Cabrera-Perez, 751 F.3d at 1007.
16            UNITED STATES V. MARCIA-ACOSTA

the district court’s determination that Marcia-Acosta’s prior
conviction qualified as a crime of violence. In light of
Descamps’s admonition to sentencing courts to focus only on
the elements — not the facts — of a defendant’s prior
conviction, the district court’s reliance on this statement,
standing alone, was erroneous.

    Indeed, this case clearly illustrates the concerns
underlying Descamps. As a matter of state law, Marcia-
Acosta’s conviction under § 13-1203(A)(1) could have been
supported by a finding of recklessness.8 Marcia-Acosta was
not required to admit he acted knowingly or intentionally.
And the trial judge had no reason to so find; under the
circumstances of this case, whether the conviction was for
“intentional” or “reckless” aggravated assault would not have
altered the conviction nor the sentencing consequences.9
Thus, it made no difference during the plea hearing whether


   8
     Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), noted that, when
“examin[ing] what the state conviction necessarily involved . . . we must
presume that the conviction rested upon [nothing] more than the least of
th[e] acts criminalized.” Id. at 1684 (second alteration in original)
(internal quotation marks omitted). Thus, in applying the modified
categorical approach, we would be required to assume that Marcia-
Acosta’s conviction was for reckless assault.
     9
       The simple assault statute provides that “[a]ssault committed
intentionally or knowingly pursuant to [subsection (A)(1)] is a class 1
misdemeanor,” while “[a]ssault committed recklessly pursuant to
[subsection (A)(1)] . . . is a class 2 misdemeanor.” Ariz. Rev. Stat. § 13-
1203(B). But when an assault is aggravated by “us[ing] a deadly weapon
or dangerous instrument,” id. § 13-1204(A)(2), as is this case here, the
aggravated assault is “a class 3 felony,” id. § 13-1204(B), no matter the
defendant’s mental state. In other words, Marcia-Acosta’s 2007 sentence
would not have differed regardless of whether he committed the assault
intentionally, knowingly, or recklessly.
            UNITED STATES V. MARCIA-ACOSTA                  17

he acted with one or the other mental state. Like the
defendant in Descamps, “[Marcia-Acosta] may have let [his
attorney’s] statement go by because it was irrelevant to the
proceedings [whether he was reckless, knowing or
intentional]. He likely was not thinking about the possibility
that his silence could come back to haunt him in [a later]
sentencing.” Descamps, 133 S. Ct. at 2289.

     Moreover, absent any narrowing language in the charging
documents or plea agreement, relying on Colon’s statement
that Marcia-Acosta committed the assault “intentionally” is
no different than relying on a statement to the same effect
made by a defendant while on the stand during a trial. The
latter approach is clearly foreclosed by Descamps as an
impermissible “look behind [the defendant’s] conviction in
search of record evidence that he actually committed the
generic offense.” Id. at 2293. In the trial context, the
government would be required to prove that the jury
necessarily found that Marcia-Acosta had committed a crime
intentionally or knowingly, rather than recklessly;
demonstrating that there was testimony to that effect would
not suffice. That Colon made a statement concerning Marcia-
Acosta’s mens rea as part of the factual basis during the plea
colloquy rather than at trial does not convert an improper
fact-based inquiry into an elements-based one.

    To support the district court’s application of the modified
categorical approach, the government points only to our
decision in United States v. Smith, 390 F.3d 661 (9th Cir.
2004), amended by 405 F.3d 726 (9th Cir. 2005). Smith
reviewed the district court’s determination that the
defendant’s prior convictions under California’s burglary
statute, Cal. Penal Code § 459, qualified as “violent felonies”
for purposes of the sentencing enhancement under the Armed
18          UNITED STATES V. MARCIA-ACOSTA

Career Criminal Act, 18 U.S.C. § 924(e). As California’s
burglary statute does not require that the defendant’s entry be
unlawful, it was not a categorical match to generic burglary.
Accordingly, the district court applied the modified
categorical approach to the record of conviction, which
“consist[ed] of the transcript of the plea hearing and the
abstract of judgment.” Smith, 390 F.3d at 664.

    As it turned out, the abstract of judgment provided no
further clarity as to the elements of Smith’s conviction. The
district court therefore relied only on the transcript of the plea
hearing, in which the prosecutor stated, as part of the factual
basis for the burglary charge, that Smith “unlawfully” entered
“a dwelling.” Id. at 663, 665. We held that the prosecutor’s
statement of the factual basis for the burglary charge,
standing alone, “unequivocally establish[ed] that Smith was
convicted of unlawfully entering a building.” Id. at 665.

    Smith is indeed in tension with our decision today. But
the analysis conducted by Smith — applying the modified
categorical approach to the unlawful entry element — is
contrary to Descamps, which held that Penal Code § 459 is
indivisible, and thus not subject to the modified categorical
approach, with respect to that very element. Descamps, 133
S. Ct. at 2283. So our application of the modified categorical
approach to the unlawful entry element in Smith would be
entirely precluded if we faced the same case today.

    Moreover, Smith was decided prior to Descamps, which
more clearly than earlier cases limited the extent to which
courts may satisfy the modified categorical approach by
looking at the “facts” of prior convictions. Our approval in
Smith of the district court’s consideration of statements by the
defense counsel during the plea colloquy — for instance, that
            UNITED STATES V. MARCIA-ACOSTA                  19

Smith had “entered his former home” and that the “codes
were changed,” 390 F.3d at 665 (internal quotation marks
omitted) — makes clear that Smith engaged in the very type
of “fact-based” analysis that Descamps proscribes. In other
words, “[i]nstead of reviewing documents like an indictment
or plea colloquy only to determine which statutory phrase
was the basis for the conviction,” Smith “look[ed] to those
materials to discover what the defendant actually did.”
Descamps, 133 S. Ct. at 2287 (internal quotation marks
omitted). Smith therefore is “clearly irreconcilable” with
Descamps, and is no longer controlling. Miller v. Gammie,
335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).

    We acknowledge that our conclusion here is in tension
with the Third Circuit’s decision in United States v. Marrero,
743 F.3d 389 (3d Cir. 2014) (“Marrero II”). In Marrero II,
the defendant appealed the district court’s finding that his
prior conviction under Pennsylvania’s simple assault statute,
18 Pa. Cons. Stat. Ann. § 2701(a), qualified as a crime of
violence under the Guidelines. As in Arizona, a defendant
can be convicted under Pennsylvania’s assault statute if he
acted intentionally, knowingly, or recklessly. See 743 F.3d
at 396. The district court determined that Marrero’s
admissions during the state court plea colloquy — that he
“plac[ed] his hands on the victim’s neck” and “grabbed [the
victim] by the neck, attempting to drag her upstairs” —
established that Marrero had pled guilty to an “intentional and
knowing violation” of the assault statute. Id. at 392–93.
Marrero contended that, “by looking to specific facts
established during the colloquy,” the district court improperly
applied the modified categorical approach. Id. at 396.

   Before Descamps was decided, the Third Circuit affirmed
Marrero’s sentence. After Descamps, the Supreme Court
20          UNITED STATES V. MARCIA-ACOSTA

granted Marrero’s petition for writ of certiorari, vacated the
Third Circuit’s judgment, and remanded for further
consideration in light of Descamps. Id. at 393; see also
Marrero v. United States, 133 S. Ct. 2732 (2013). The Third
Circuit once again affirmed, repeating essentially verbatim its
earlier holding that the district court had “properly examined”
Marrero’s plea colloquy to “determine whether he pleaded
guilty to intentional, knowing, or reckless assault.” Marrero
II, 743 F.3d at 397; compare United States v. Marrero,
677 F.3d 155, 162 (3d Cir. 2012) (“Marrero I”).

    In our view, Marrero II cannot be squared with the
Supreme Court’s clear prohibition on substituting “a facts-
based inquiry for an elements-based one.” Descamps, 133 S.
Ct. at 2293. Like Marcia-Acosta, Marrero was not required
to act knowingly or intentionally to be convicted of assault;
under Pennsylvania law, he could be convicted if he acted
recklessly. 18 Pa. Cons. Stat. Ann. § 2701(a)(1). That the
Supreme Court vacated and remanded the Third Circuit’s
original decision in the case suggests, as Justice Alito wrote
in his dissent to the order granting Marrero’s petition, that the
Court was “troubled by the possibility that petitioner was
convicted merely for reckless conduct.” 133 S. Ct. at 2733
(Alito, J., dissenting). But Marrero II discussed Descamps
only in the context of explaining why the Pennsylvania
statute was divisible, and not in the course of applying the
modified categorical approach once determining it applicable.
Marrero II, 743 F.3d at 395–96. Yet, as here, there is no
basis for concluding that the defendant was convicted of
intentional assault, as the charge to which he pleaded guilty
was not limited to intentional acts. Such an inference would
be tantamount to “look[ing] behind [the] conviction in search
of record evidence that he actually committed the generic
offense,” an approach Descamps expressly rejected as
              UNITED STATES V. MARCIA-ACOSTA                             21

improperly “extending judicial factfinding beyond the
recognition of a prior conviction.” 133 S. Ct. at 2288, 2293.

    To be clear, Shepard permits district courts to review
transcripts of plea colloquies when applying the modified
categorical approach, to ascertain the offense to which the
defendant pled guilty. See 544 U.S. at 26. If the operative
charging document limits the charge to a statutory alternative
that meets the generic offense definition, a factual-basis
statement at the plea colloquy and the charge, together, can
establish the crime of conviction, because that fact then does
become essential. Likewise, there may be circumstances in
which a factual-basis statement detail, not extraneous to the
conviction, unequivocally establishes that the conviction
“‘necessarily’ rested on the fact identifying the [offense] as
generic.” Shepard, 544 U.S. at 21 (quoting Taylor, 495 U.S.
at 602).10

    But courts remain restricted to the modified categorical
approach’s “focus on the elements, rather than the facts, of a
crime.” Descamps, 133 S. Ct. at 2285. Thus, in a case like
this one — in which there is no narrowing through the

   10
      Where a defendant’s factual-basis statement negates all possible
statutory alternatives, the statement may be sufficient, standing alone, to
establish that the defendant pled to the generic statutory alternative. In
such cases, the statement is not extraneous to the conviction. For
example, if a defendant pleading guilty to burglary stated, as part of his
factual basis, that he “entered a house, not a boat,” cf. Shepard, 544 U.S.
at 17, a reviewing court could conclude that the defendant was not
convicted of burgling a boat. Unlike the “boat” and “house” elements of
this hypothetical burglary statute, however, the mens rea elements at issue
in this case are nested. That is, they are inherently not mutually exclusive,
as an assault can be reckless, knowing, and intentional. A factual-basis
admission as to one mental state thus does not negate the possibility of
conviction under another.
22            UNITED STATES V. MARCIA-ACOSTA

indictment, information, or other charging document, and no
narrowing of the offense of conviction through the actual
conviction documents or pleas — a sentencing court may not
rely on an extraneous factual-basis statement detail, standing
alone, to supply the narrowing for purposes of the modified
categorical approach. At bottom, the Shepard documents in
this case at most suggest that Marcia-Acosta committed the
crime of intentional aggravated assault. They do not show
that Marcia-Acosta was convicted of that crime. On the
contrary, from this record we cannot say whether he was
convicted of the crime of intentional aggravated assault, the
crime of knowing aggravated assault, or the crime of reckless
aggravated assault. Additionally, based on the charging
documents, these mental states may have been treated as
alternative means rather than alternative elements in Marcia-
Acosta’s case, in which case Marcia-Acosta was convicted of
none of these three alternative crimes, but instead was
convicted of the single crime of intentional, knowing or
reckless aggravated assault.11 We can say for sure only that
the Shepard documents do not prove that Marcia-Acosta was
convicted of the crime of intentional (or knowing) aggravated
assault, and so the modified categorical approach is not
satisfied.

    In sum, the district court misapplied the modified
categorical approach in determining that Marcia-Acosta’s
prior conviction was for a crime of violence, and therefore



  11
     Of course, if these three mental states really are alternative means
rather than alternative elements — and we assume to the contrary for
purposes of our analysis in this case — then this statute of conviction
would be indivisible, and the modified categorical approach would not
apply at all. See Rendon, 764 F.3d at 1083, 1086.
            UNITED STATES V. MARCIA-ACOSTA                 23

erred in including the 16-level enhancement in its calculation
of the Guidelines sentence.

                             IV.

     Although advisory after United States v. Booker, 543 U.S.
220 (2005), the Guidelines remain “the starting point and the
initial benchmark” of any sentencing determination. Gall v.
United States, 552 U.S. 38, 49 (2007). “[S]entencing
proceedings are to begin by determining the applicable
Guidelines range. The range must be calculated correctly.”
United States v. Carty, 520 F.3d 984, 991(9th Cir. 2008) (en
banc). “A mistake in calculating the recommended
Guidelines sentencing range is a significant procedural error
that requires us to remand for resentencing.” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per
curiam). We thus vacate Marcia-Acosta’s sentence and
remand for resentencing consistent with this opinion.
Accordingly, we need not address Marcia-Acosta’s
arguments that his sentence was otherwise procedurally
erroneous and substantively unreasonable.

  VACATED     AND                  REMANDED            FOR
RESENTENCING.
