                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          February 6, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 18-2154
 v.                                                (D.C. No. 2:12-CR-00944-RB-2)
                                                          (D. New Mexico)
 SOPHIA MONIQUE ZAYAS,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges.
                 _________________________________


      On February 24, 2014, Sophia Zayas pleaded guilty, through the Assimilated

Crimes Act, to the New Mexico crime of child abuse resulting in great bodily harm.

At the time of her guilty plea, the requisite mens rea under New Mexico law for child

abuse resulting in great bodily harm was criminal negligence, a standard satisfied

upon a showing that the defendant disregarded a risk of which she knew or should

have known. On August 21, 2014, the New Mexico Supreme Court overruled its

precedent and held the mens rea required to convict for child abuse resulting in great

bodily harm is recklessness—the defendant consciously disregarded a substantial and


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unjustifiable risk. Ms. Zayas is entitled to the benefit of this change in the law

because it occurred before the district court entered judgment on September 28, 2018.

See Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 711 (1974) (stating “the

principle that a court is to apply the law in effect at the time it renders its decision,

unless doing so would result in manifest injustice or there is statutory direction or

legislative history to the contrary”).

       Ms. Zayas moved to withdraw her guilty plea on the basis that it was not

knowing and voluntary because the district court had failed to explain adequately the

mens rea requirement. The district court denied Ms. Zayas’s motion, determining the

Information adequately informed Ms. Zayas of the recklessness requirement and that

Ms. Zayas had admitted facts consistent with that requirement in her plea agreement.

       Because nothing in the record informed Ms. Zayas that the government would

be required to prove that she knew, rather than merely should have known, of the

risk, we conclude her plea was not knowing and voluntary and reverse the district

court’s denial of Ms. Zayas’s motion to withdraw. 1




       1
        Ms. Zayas’s briefing appears to challenge the acceptance of her guilty plea,
not the denial of her motion to withdraw the plea. At oral argument, Ms. Zayas’s
counsel clarified that Ms. Zayas is challenging the district court’s denial of her
motion to withdraw the plea. The government is not prejudiced by this clarification
because the government interpreted Ms. Zayas’s briefing as a challenge to the denial
of her motion to withdraw the plea.
                                                 2
                                 I.     BACKGROUND

                                 A. Factual History

      During the relevant time period, Ms. Zayas was a member of the Air Force

living on Holloman Air Force base. On October 22, 2007, Ms. Zayas found her

two-month-old daughter, Annalicia Zayas, unresponsive thirty minutes after putting

Annalicia down for a nap. An autopsy showed Annalicia had suffered multiple skull

fractures, hemorrhages, and scalp contusions within two to three hours of her death.

The autopsy also revealed Annalicia had ten rib fractures in various stages of healing;

healing fractures to her right wrist bones; and lesions on her body, consistent with

cigarette burns, some of which were healing. The medical examiner ruled Annalicia’s

death a homicide.

      On April 24, 2012, a grand jury indicted Ms. Zayas, charging her with various

violations of New Mexico law under the Assimilated Crimes Act, 18 U.S.C. §§ 7,

13. 2 Ms. Zayas was arrested that same day. The United States filed multiple

superseding indictments before Ms. Zayas agreed to plead guilty to an Information.

The Information charged Ms. Zayas with the assimilated state crime of child abuse



      2
        The Assimilated Crimes Act, 18 U.S.C. § 13, “performs a gap-filling function
by ‘borrowing state law’ to bolster the ‘federal criminal law that applies on federal
enclaves.’” United States v. Jones, 921 F.3d 932, 935 (10th Cir. 2019) (quoting Lewis
v. United States, 523 U.S. 155, 160 (1998)). It provides that anyone “guilty of any act
or omission which, although not made punishable by any enactment of Congress,
would be punishable if committed . . . within the jurisdiction of the State . . . in
which [the federal enclave] is situated, . . . shall be guilty of a like offense and
subject to a like punishment.” 18 U.S.C. § 13(a). The Air Force base where Annalicia
Zayas died is a federal enclave.
                                              3
resulting in great bodily harm, a violation of 18 U.S.C. §§ 7, 13 and N.M. Stat. Ann.

§ 30-6-1(D)(1), (D)(2), and (E). Specifically, the Information alleged,

      From on or about August 16, 2007, through on or about October 22,
      2007, . . . in the District of New Mexico, at Holloman Air Force
      Base, . . . the defendant, Sophia Monique Zayas, did negligently, and
      without justifiable cause, cause and permit Jane Doe #1 . . . to be placed
      in a situation that may endanger Jane Doe #1’s life and health, and to be
      tortured and to be cruelly punished, which resulted in great bodily harm
      to Jane Doe #1.

ROA, Vol. I at 170. 3

      On February 24, 2014, pursuant to a plea agreement, Ms. Zayas pleaded guilty

to the Information. The plea agreement included the following admission of facts:

      On or about August 16, 2007 through October 22, 2007, I caused or
      permitted Annalicia Zayas, my daughter who was less than 12 years of
      age, to be placed in a situation which endangered her life or health or
      tortured, cruelly confined or cruelly punished her.

      I knew or should have known that my conduct created a substantial and
      foreseeable risk that my daughter, Annalicia Zayas, would be physically
      harmed or killed. I disregarded that risk, and I was wholly indifferent to
      the consequences of the conduct and to the welfare and safety of my
      daughter, Annalicia Zayas.

      My actions resulted in great bodily harm to Annalicia.

      Specifically, as a result of my actions, my daughter sustained the
      following injuries between August 16, 2007 through October 22, 2007,
      that constitute great bodily harm:



      3
        The Information did not charge Ms. Zayas with abusing Annalicia, rather, it
charged Ms. Zayas with failing to protect Annalicia. Ms. Zayas has maintained that
her codefendant and husband, Peter Zayas, was responsible for inflicting the injuries
that caused Annalicia’s death. Although Mr. Zayas made inconsistent statements
regarding who was responsible for Annalicia’s death, on at least two occasions he
claimed sole responsibility for Annalicia’s injuries.
                                              4
             (1)      Posterior transverse skull fractures;
             (2)      Rib fractures on at least two occasions; and
             (3)      Radius and Ulna fractures

      My actions and the above injuries all occurred in New Mexico, at
      Holloman Air Force Base.

ROA, Vol. I at 175–76.

      As part of the plea agreement, Ms. Zayas “agrees and represents that [her] plea

of guilty is freely and voluntarily made and is not the result of force, threats or

promises (other than the promises set forth in this plea agreement . . .).” ROA, Vol. I

at 177. Above Ms. Zayas’s signature, the following paragraph appeared:

      This agreement has been read to me in the language I understand best,
      and I have carefully discussed every part of it with my attorney. I
      understand the terms of this agreement, and I voluntarily agree to those
      terms. My attorney has advised me of my rights, of possible
      defenses, . . . and of the consequences of entering into this
      agreement. . . . Finally, I am satisfied with the representation of my
      attorney in this matter.

ROA, Vol. I at 178.

      At the plea hearing, the district court began by referencing the Information and

confirming that Ms. Zayas understood she would be pleading guilty to the charges set

forth in that document. After reviewing the maximum penalties for the charge and

Ms. Zayas’s waiver of indictment, the district court turned to the plea agreement.

Ms. Zayas acknowledged that she had read the plea agreement before she signed it,

had a chance to discuss the agreement with her attorneys, and understood its terms.

The district court also confirmed with Ms. Zayas that she understood the rights she

was giving up by entering a plea. Then, the district court had the government read the


                                                5
factual basis from the plea agreement. Finally, the district court asked Ms. Zayas to

tell the court “in [her] own words why you think you’re guilty of what you’ve just

pled to.” ROA, Vol. I at 212. Ms. Zayas gave the following response:

      Because I should have known. I didn’t know. I didn’t know that Anna
      had rib fractures. I didn’t know that Anna had wrist fractures. I didn’t
      know that Anna had a skull fracture. But -- and even though I have that
      -- that -- that conviction in me and that’s what has -- that along with my
      knowing that she was not murdered, has kept me fighting all of this [sic]
      years.
              But when the language says that I should have known . . . my
      language used -- I used to say how could I? If I had known, I would
      have . . . I would have helped my child, I would have seen. I would have
      -- if I had known . . . things could be different. But I didn’t. But the
      language says that I should have known because I am her parent. She’s
      alive. And that -- that -- the -- the gross -- the injuries and how they
      have -- could have occurred, even if accidental, was still negligent
      because it wasn’t addressed. And so, although I never intended for Anna
      to be hurt, although I had another child afterwards and raised her with
      no injuries, I cannot deny that these injuries were, indeed, found.
               So -- so I hurt for her. I wish I could have known, but I . . . and I
      should have known, because I’m her mommy. And so that’s how I’ve
      been able to -- the language is hard to stomach. It always -- it always
      was, but I should have known. And I feel bad about that. I feel horrible.

ROA, Vol. I at 212–13 (ellipses in original).

      In November 2015, Ms. Zayas’s counsel filed a motion to withdraw as counsel

and a motion written by Ms. Zayas to withdraw her guilty plea. At a hearing on

February 2, 2016, the district court granted counsel’s motion to withdraw. The

district court also determined Ms. Zayas’s plea was knowingly and voluntarily made

but withheld a final ruling on Ms. Zayas’s motion to withdraw her plea until new

counsel could review it. In October 2016, Ms. Zayas’s new counsel filed a

supplemental and an amended supplemental motion to withdraw Ms. Zayas’s guilty


                                                6
plea. As relevant to this appeal, Ms. Zayas argued she should be permitted to

withdraw her plea because the district court failed to adequately explain the nature of

the charge, including the recklessness mens rea requirement. Concluding that the

Information adequately informed Ms. Zayas of the recklessness requirement and that

the admission of facts in Ms. Zayas’s plea agreement satisfied this requirement, the

district court denied Ms. Zayas’s motion to withdraw her guilty plea on February 8,

2017.

        In December 2017, Ms. Zayas filed a motion to reconsider the denial of her

motion to withdraw her guilty plea on unrelated grounds. At the hearing on the

motion to reconsider, the district court sua sponte raised the concern that the court

had not sufficiently explained the elements of the charge to Ms. Zayas during the

plea colloquy. After receiving additional briefing on this matter, the district court

concluded the language in the plea agreement put Ms. Zayas on notice that she was

pleading guilty to a crime with a recklessness mens rea and denied Ms. Zayas’s

motion to reconsider. On September 28, 2018, the district court entered judgment,

sentencing Ms. Zayas to 180 months’ imprisonment. Ms. Zayas timely filed a notice

of appeal.

        B. The Mens Rea Requirement for Child Abuse Under New Mexico Law

        Ms. Zayas pleaded guilty to child abuse resulting in great bodily harm in

violation of 18 U.S.C. §§ 7, 13 and N.M. Stat. Ann. § 30-6-1(D)(1), (D)(2), and (E).

Under New Mexico law, “[a]buse of a child consists of a person knowingly,

intentionally or negligently, and without justifiable cause, causing or permitting a

                                               7
child to be: (1) placed in a situation that may endanger the child’s life or health; [or]

(2) tortured, cruelly confined or cruelly punished.” N.M. Stat. Ann. § 30-6-1(D)(1)-

(2). “Negligently” in this context “refers to criminal negligence and means that a

person knew or should have known of the danger involved and acted with a reckless

disregard for the safety or health of the child.” Id. § 30-6-1(A)(3).

      At the time Ms. Zayas entered her guilty plea, the New Mexico Supreme Court

had interpreted the “knew or should have known” language in § 30-6-1 to “evince[] a

legislative intent to use the concept of criminal negligence, not recklessness, as the

standard for negligent child abuse.” State v. Schoonmaker, 176 P.3d 1105, 1117

(N.M. 2008), overruled by State v. Consaul, 332 P.3d 850 (N.M. 2014). New

Mexico’s uniform jury instruction for child abuse included the same “knew or should

have known” mens rea requirement:

      The defendant acted [intentionally] [or] [with reckless disregard] [and
      without justification]. [To find that _______ (name of defendant) acted
      with reckless disregard, you must find that _______ (name of defendant)
      knew or should have known the defendant’s conduct created a
      substantial and foreseeable risk, the defendant disregarded that risk and
      the defendant was wholly indifferent to the consequences of the conduct
      and to the welfare and safety of _______ (name of child)].

N.M. Uniform Jury Instruction 14–602 (repealed Apr. 3, 2015) (footnotes omitted).

      Six months after Ms. Zayas entered her guilty plea, but before the court

entered judgment on her plea, the New Mexico Supreme Court sua sponte expressed

significant concerns about the child abuse jury instruction and the court’s prior

interpretation of the mens rea requirement for child abuse. Consaul, 332 P.3d at 855.

In State v. Consaul, the New Mexico Supreme Court recognized that the New Mexico

                                                8
“Legislature appeared to capture two standards of mens rea in one sentence when it

defined ‘negligently’ as meaning ‘that a person knew or should have known of the

danger involved and acted with a reckless disregard for the safety or health of the

child’” because “the statute refers to both ordinary negligence and criminal

recklessness all in a single legislative breath.” Id. at 858 (quoting N.M. Stat. Ann.

§ 30-6-1(A)(3)).

      The New Mexico Supreme Court determined “[t]he Legislature cannot

rationally have intended such self-contradiction,” and concluded “the Legislature

intended the term ‘reckless disregard’ to prevail when ‘knew or should have known’

conflicts.” Id. The New Mexico Supreme Court reasoned, “The Legislature intended

to punish acts done with a reckless state of mind consistent with its objective of

punishing morally culpable acts and not mere inadvertence.” Id. at 857. The court

noted that recklessness typically “require[s] an actor to consciously disregard a

substantial and unjustifiable risk of such a nature and degree that its disregard

involves a gross deviation from the standard of conduct that a law-abiding person

would observe in the actor’s situation.” Id. at 857–58.

      As a result, the New Mexico Supreme Court “expressly modif[ied] prior cases,

including [its] own, in which courts have held that recklessness is not the culpability

required for the crime of negligent child abuse.” Id. at 858. To clarify that the

requisite mens rea for child abuse is recklessness, the court relabeled “criminally

negligent child abuse” to “‘reckless child abuse’ without any reference to

negligence.” Id. at 857. The court also “specifically overrule[d] that portion of

                                               9
Schoonmaker in which [it] stated that ‘Section 30-6-1 evinces a legislative intent to

use the concept of criminal negligence, not recklessness, as the standard for negligent

child abuse.’” Id. at 858 (quoting Schoonmaker, 176 P.3d at 1117).

      Since Consaul, New Mexico has updated its uniform jury instruction for child

abuse resulting in great bodily harm. The instruction no longer includes the statutory

language “knew or should have known,” and it now explains the recklessness mens

rea requirement:

       ________ (name of defendant) showed a reckless disregard [without
       justification] for the safety or health of ________ (name of child). To
       find that ________ (name of defendant) showed a reckless disregard,
       you must find that _________ (name of defendant)’s conduct was more
       than merely negligent or careless. Rather, you must find that ________
       (name of defendant) [caused] [or] [permitted] a substantial and
       unjustifiable risk of serious harm to the safety or health of _______
       (name of child). A substantial and unjustifiable risk is one that any
       law-abiding person would recognize under similar circumstances and
       that would cause any law-abiding person to behave differently than
       ________ (name of defendant) out of concern for the safety or health of
       _______ (name of child).

N.M. Uniform Jury Instruction 14–615 (footnotes omitted).

                                  II.    DISCUSSION

      On appeal, Ms. Zayas asserts her guilty plea was not knowing and voluntary

because the district court failed to explain adequately the nature of the charge,

including the recklessness mens rea requirement.

                               A. Standard of Review

      We review a district court’s denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Marceleno, 819 F.3d 1267, 1272 (10th Cir.


                                              10
2016). As part of that analysis, we review de novo whether the plea was knowing and

voluntary. Id. “Although a motion to withdraw a guilty plea should be freely allowed,

we will not reverse a district court’s denial of such a motion unless it acted unjustly

or unfairly.” Id. (internal quotation marks omitted).

                                     B. Analysis

      “A defendant may withdraw a plea of guilty . . . after the court accepts the

plea, but before it imposes sentence if . . . the defendant can show a fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d). To determine whether

a defendant has met this burden, district courts consider seven factors: “(1) whether

the defendant has asserted his innocence, (2) prejudice to the government, (3) delay

in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s

assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of

judicial resources.” Marceleno, 819 F.3d at 1272 (quotation marks omitted).

Although whether the plea is knowing and voluntary is only one of these factors, “[a]

guilty plea is void if it is not knowing and voluntary.” United States v. Gigley, 213

F.3d 509, 516 (10th Cir. 2000). Accordingly, if we conclude that Ms. Zayas’s guilty

plea was not knowing and voluntary, we may grant relief without separately

considering the other Marceleno factors.

      Federal Rule of Criminal Procedure 11 “is designed to assist the district judge

in making the constitutionally required determination that a defendant’s plea is truly

voluntary.” United States v. Ferrel, 603 F.3d 758, 762 (10th Cir. 2010) (quotation

marks omitted). Under Federal Rule of Criminal Procedure 11(b), a district court

                                               11
accepting a guilty plea must “inform the defendant of, and determine the defendant

understands,” certain information regarding the plea, including “the nature of each

charge to which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). “In most

cases, this requires the court to recite the elements of the offense.” Ferrel, 603 F.3d

at 762.

      The district court expressly acknowledged that it did not recite the elements of

the offense as required under Rule 11(b)(1)(G). To establish that a defendant’s guilty

plea was not knowing and involuntary because the district court failed to recite the

elements of the offense, the defendant must

      (1) show that the [intent] element was a critical element of [the charge];
      (2) overcome the presumption that his attorney explained this element to
      him at some other time prior to his guilty plea; and (3) demonstrate that,
      prior to his guilty plea, he did not receive notice of this element from
      any other source.

Allen v. Mullin, 368 F.3d 1220, 1241 (10th Cir. 2004) (alterations in original)

(quotation marks omitted). With respect to the second requirement, this court “will

not indulge the presumption unless there is factual basis in the record to support it.”

Id.

      The government concedes that the mens rea element is a critical element of the

charged crime. Thus, to determine if Ms. Zayas’s plea was knowing and voluntary,

we analyze (1) the presumption that Ms. Zayas’s attorney informed her of the

recklessness mens rea requirement, and (2) the availability of information about the

mens rea requirement from other sources.



                                              12
   The Presumption Ms. Zayas’s Attorney Informed Ms. Zayas of the Mens Rea
   Requirement

      The presumption that Ms. Zayas’s attorney informed her of the recklessness

mens rea requirement is appropriate only when “there is factual basis in the record to

support it.” Allen, 368 F.3d at 1241. The government argues there is a factual basis in

the record to support the presumption because Ms. Zayas and her counsel

acknowledged in the plea agreement and during the plea colloquy that they had

reviewed her possible defenses. The government asserts that a conversation about

Ms. Zayas’s possible defenses “would have had to include a discussion of the mens

rea to commit the crime.” Gov’t Br. at 17. Because the jury instructions at the time of

Ms. Zayas’s guilty plea included language about reckless disregard, the government

argues the court can “presume[] that [Ms. Zayas’s attorneys] informed [her] of the

reckless-disregard requirement.” Id. The government also points to the recklessness

language in the plea agreement’s factual basis and argues that Ms. Zayas’s attorneys

“would not have wanted her to make [a recklessness admission] if they had believed

the government need only prove negligence.” Id. We are not convinced.

      At the time Ms. Zayas pleaded guilty, her attorneys had no notice that the

government would be required to prove recklessness instead of criminal negligence.

The New Mexico Supreme Court had reviewed the language of the child abuse jury

instruction and concluded that “the concept of criminal negligence, not recklessness,”

provides “the standard for negligent child abuse.” Schoonmaker, 176 P.3d at 1117.

After Ms. Zayas entered her guilty plea, the New Mexico Supreme Court overruled


                                             13
its precedent and held that the requisite mens rea for child abuse is recklessness.

Consaul, 332 P.3d at 857–58. Because the mens rea requirement at the time

Ms. Zayas entered her guilty plea was criminal negligence, there is no reason to

presume from the record that her attorneys adequately informed her of the

recklessness requirement that she consciously disregarded a known risk, rather than

the negligence requirement that she should have known of the risk.

      At most, Ms. Zayas’s attorneys would have informed her of the criminal

negligence standard and explained that the government must prove that she “knew or

should have known” of a substantial foreseeable risk and disregarded that risk. N.M.

Uniform Jury Instruction 14–602 (emphasis added). Her attorneys would have had no

reason to object to the reckless disregard language in the plea agreement’s factual

basis because it mirrored the reckless disregard language in the child abuse jury

instruction. And there is no evidence in the record that Ms. Zayas’s attorneys would

have had any reason to predict that the New Mexico Supreme Court would overrule

its precedent on the mens rea requirement. Accordingly, there is no factual basis in

the record to support a presumption that Ms. Zayas’s attorneys adequately informed

her of the recklessness mens rea requirement.

   Availability of Information Regarding the Mens Rea Requirement from Any
   Other Source

      To prevail, Ms. Zayas must also demonstrate that she did not learn of the

recklessness mens rea element from another source. Allen, 368 F.3d at 1241. To

determine whether a defendant had notice of the element prior to her plea, this court


                                              14
considers the Information, plea agreement, and plea colloquy. See, e.g., Ferrel, 603

F.3d at 763–64. We consider each of these items now, concluding that none of them

notified Ms. Zayas of the recklessness mens rea element.

      The Information does just the opposite, charging that Ms. Zayas “did

negligently, and without justifiable cause, cause and permit Jane Doe #1, a child, to

be placed in a situation that may endanger Jane Doe #1’s life and health, and to be

tortured and to be cruelly punished, which resulted in great bodily harm to Jane Doe

#1.” ROA, Vol. I at 170 (emphasis added). As the government conceded at oral

argument, this language embodies a criminal negligence standard. There is no

language in the Information that would have put Ms. Zayas on notice that the

government would be required to prove recklessness—that she consciously

disregarded a known risk.

      Turning now to the plea agreement, we conclude it likewise fails to evidence

Ms. Zayas’s understanding that recklessness was required. Ms. Zayas admitted:

      I knew or should have known that my conduct created a substantial and
      foreseeable risk that my daughter, Annalicia Zayas, would be physically
      harmed or killed. I disregarded that risk, and I was wholly indifferent to
      the consequences of the conduct and to the welfare and safety of my
      daughter, Annalicia Zayas.

ROA Vol. I at 175–76.

      The government emphasizes the second sentence—that Ms. Zayas disregarded

“that risk” and was “wholly indifferent to the consequences of the conduct.”

According to the government, this “is the same language discussed and endorsed by

the New Mexico Supreme Court in Consaul to define ‘reckless disregard.’” Gov’t Br.

                                             15
at 18. The government further argues that the negligence language in the first

sentence—that she knew or should have known—“was at most surplusage that did

not negate the presence of the recklessness language.” Id. In other words, the

government contends that Ms. Zayas agreed she acted both negligently and

recklessly. In denying Ms. Zayas’s motion to reconsider, the district court agreed

with this reading of the plea agreement:

             While it is true that the Plea Agreement also contains the
      confusing “knew or should have known” language that the New Mexico
      Supreme Court has disavowed, it was supplemental to the remaining
      language in the Plea Agreement, which clearly indicates a recklessness
      mens rea and was sufficient to put Ms. Zayas on notice that she was
      also pleading guilty to acting recklessly.

ROA, Vol. I at 443 (citation omitted); see also ROA, Vol. I at 315 (denying Ms.

Zayas’s motion to withdraw her guilty plea and determining “[t]he factual basis to

which Ms. Zayas admitted included the recklessness element of the offense”).

      Again, we disagree. The language in the plea agreement’s factual basis

mirrored the language in the pre-Consaul jury instruction. In Consaul, the New

Mexico Supreme Court expressly rejected that language as inadequately and

confusingly defining “reckless disregard.” See Consaul, 332 P.3d at 856–58. The

court clarified that recklessness, not negligence, was the proper mens rea for child

abuse, and that recklessness typically “require[s] an actor to consciously disregard a

substantial and unjustifiable risk of such a nature and degree that its disregard

involves a gross deviation from the standard of conduct that a law-abiding person

would observe in the actor’s situation.” Id. at 857–58.


                                              16
      Like the jury instruction struck down by the New Mexico Supreme Court, the

plea agreement indicates that Ms. Zayas “knew or should have known that [her]

conduct created a substantial and foreseeable risk that [Annalicia] would be

physically harmed or killed.” ROA, Vol. I at 175. As part of the plea agreement,

Ms. Zayas admits she “disregarded that risk [and] was wholly indifferent to the

consequences of the conduct,” but she does so only for a risk of which she “knew or

should have known.” ROA, Vol. I at 175. Ms. Zayas does not admit in the plea

agreement that she consciously disregarded such a risk. See ROA, Vol. I at 175. And

the conflicting “knew or should have known” language does not notify Ms. Zayas

that the government was required to prove she consciously disregarded a risk—

something she could have done only if she knew of the risk—rather than prove

Ms. Zayas disregarded a risk of which she should have known.

      And nothing in Ms. Zayas’s plea colloquy indicates she received notice of the

recklessness mens rea requirement from any other source. To the contrary, she states

repeatedly that she should have known of the risk and emphasizes that she did not

know of that risk:

      Because I should have known. I didn’t know. I didn’t know that Anna
      had rib fractures. I didn’t know that Anna had wrist fractures. I didn’t
      know that Anna had a skull fracture. . . .
              But when the language says that I should have known . . . my
      language used -- I used to say how could I? If I had known, I would
      have . . . I would have helped my child, I would have seen. I would have
      -- if I had known . . . things could be different. But I didn’t. But the
      language says that I should have known because I am her parent. She’s
      alive. And that -- that -- the -- the gross -- the injuries and how they
      have -- could have occurred, even if accidental, was still negligent
      because it wasn’t addressed. . . .

                                             17
            So -- so I hurt for her. I wish I could have known, but I . . . and I
      should have known, because I’m her mommy. And so that’s how I’ve
      been able to -- the language is hard to stomach. It always -- it always
      was, but I should have known. And I feel bad about that. I feel horrible.

ROA, Vol. I at 212–13 (emphases added).

      There is nothing in the Information or the plea agreement indicating the

government would be required to prove that Ms. Zayas knew rather than should have

known of the risk. In fact, at the time of Ms. Zayas’s guilty plea, the government

would not have been required to prove more than criminal negligence. The use of

“should have known” in Ms. Zayas’s plea agreement and the plea colloquy was not

superfluous to the other reckless disregard language; it was an alternative basis for

guilt. The should-have-known language in the plea agreement allowed the

government to prove negligence when the defendant disregarded a risk of which she

should have known. Later developments in New Mexico law make it clear that the

should-have-known standard is no longer good law. And Ms. Zayas’s plea colloquy

emphatically confirms that she believed the government could prove its case because

she should have known of the risk.

      In sum, the record reflects that Ms. Zayas was not aware of the specific

requirements of the recklessness element—that she consciously disregarded a known

risk. There is nothing in the Information, plea agreement, or plea colloquy that would

support the conclusion that Ms. Zayas received notice of the recklessness mens rea

requirement from another source. Indeed, the Information that sets forth the criminal

charge to which she pleaded guilty states only a negligence mens rea. Upon this


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record, we conclude Ms. Zayas’s guilty plea was not knowing and voluntary because

she was not informed of the elements of the offense to which she pleaded guilty.

                                 III.   CONCLUSION

      Because there is no factual basis in the record to support the presumption that

Ms. Zayas’s attorneys explained the recklessness mens rea requirement to her, and

there is no evidence in the record that she received notice of the recklessness mens

rea requirement from any other source, Ms. Zayas’s plea was not knowing and

voluntary. Therefore, the district court abused its discretion in denying Ms. Zayas’s

motion to withdraw her guilty plea. We VACATE the judgment, REVERSE the

district court’s denial of Ms. Zayas’s motion to withdraw her guilty plea, and

REMAND for further proceedings consistent with this decision.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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