United States v. Merlin Marcia-Acosta

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.