Crime defined by statute that includes mens rea of recklessness does not qualify as crime of violence for sentence enhancement purposes

SENTENCING United States v. Zuniga-Soto, No. 06-2364, ___ F.3d ___ (10th Cir. Jun 3, 2008)(New Mexico). Appeal of sentence after plea of guilty to crime of illegally re-entering United States in violation of 8 U.S.C. § 1326. HELD: (1) District court erred in determining that defendant had been convicted of crime of violence under Texas statute for assaulting public servant. A statute that includes mens rea of recklessness does not satisfy use of physical force requirement set out in sentence enhancement provisions of U.S.S.G. § 2L1.2 . Therefore, under Texas assault statute, which defines crime as “intentionally, knowingly, or recklessly cause[ing] bodily injury to another,” state need not have proved that defendant actively employed physical force, but instead could have obtained conviction on mere showing that defendant recklessly used physical force. Thus, by including mens rea of recklessness in definition of offense, use of force was not element of conviction for assault against public servant. (2) Sentence enhancement provision at U.S.S.G. § 2L1.2 for any prior conviction that has as an element the use, attempted use, or threatened use of physical force, limits scope of proper inquiry to statutory definition of prior offense and does not permit examination of facts behind conviction. Read the opinion here.