United States v. Ossana

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-2205
___________

United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Timothy G. Ossana, *
*
Defendant-Appellant. *
___________

Submitted: January 14, 2011
Filed: April 22, 2011
___________

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
___________

MELLOY, Circuit Judge.

Timothy G. Ossana challenges the sentence he received after pleading guilty to
being a felon in possession of a firearm. He specifically challenges the district court's
calculation of a base offense level pursuant to U.S. Sentencing Guideline
§ 2K2.1(a)(4)(A), which applies when a defendant in unlawful possession of a firearm
has a prior felony conviction for a "crime of violence." Ossana argues the government
failed to establish that a prior Arizona conviction for aggravated assault qualified as
a crime of violence. We reverse and remand for resentencing.
 I.

In Ossana's presentence investigation report, the probation office recommended
a base offense level of twenty pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Ossana
had obtained a prior conviction for a "crime of violence." Without a prior conviction
for a crime of violence, the base offense level would have been fourteen. See
U.S.S.G. § 2K2.1(a)(6). In support of its recommendation, the probation office recited
a conviction for "aggravated Assault, Deadly Weapon/Dangerous Instrument, Superior
Court, Pima County, Arizona Docket No. CR-62031."1 Prior to his sentencing hearing,
Ossana objected to several paragraphs of the PSR including the paragraph listing the
Arizona offense and, by reference, the paragraph stating the prior offense qualified as

1
As discussed more fully below, the prior conviction at issue was for violating
Ariz. Rev. Stat. § 13-1204 which provides, in relevant part:

A. A person commits aggravated assault if the person commits
assault as prescribed by § 13-1203 under any of the following
circumstances:
...
2. If the person uses a deadly weapon or dangerous
instrument.

The underlying statutory section for assault, incorporated by reference within section
13-1204 is Ariz. Rev. Stat. § 13-1203. Section 13-1203 may be violated in several
distinct ways:

A. A person 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.

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a crime of violence. Ossana argued the base offense level should be fourteen rather
than twenty, and he cited a document from the state-court record in which a judge had
indicated the offense was "NONDANGEROUS; NONREPETITIVE." In addition,
Ossana claimed he was appealing the state conviction and the result of the appeal
could impact his "offense level as well as his criminal history category." The
government made no objections to the PSR. The probation office responded to
Ossana's objection, stating no appeal had overturned the conviction, and "the
conviction outlined in paragraph 59 for Aggravated Assault, Deadly
Weapon/Dangerous Instrument, qualifies as a crime of violence pursuant to Section
4B1.2(a) and Application Note 1" based on "the elements of the offense."

At the sentencing hearing, the parties addressed the issue of whether the
Arizona conviction for Aggravated Assault qualified as a violent felony, but only in
terms of Ossana's general objection. The only discussion of the state-court record
focused on Ossana's observation that the state-court judge's written judgment
classified the offense as "NONDANGEROUS, NONREPETITIVE." The parties did
not discuss the elements of the underlying Arizona statutory sections at issue, Ariz.
Rev. Stat. §§ 13-1203 (simple assault) & 13-1204 (aggravating conditions). In fact,
it appears section 13-1203 was not before the court.2 The government submitted an
exhibit containing state records, as discussed below, and Ossana did not object to the
admission of these records.

On appeal to our court, Ossana for the first time presents more fully articulated
arguments regarding the applicability of section 2K2.1(a)(4)(A). He renews his

2
To the extent Ossana bases his arguments on the government's failure to
provide a copy of the relevant state statute to the district court, we reject his
arguments. We previously have held such an omission to be harmless, and, at any rate,
our review of the issue involving the underlying state statute is de novo. See United
States v. Webster, ___ F.3d ___, 2011 WL 710202, No. 10-1172, at *1 n.2 (8th Cir.
Mar. 2, 2011).

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reference to the state-court materials identifying the offense as "NONDANGEROUS,
NONREPETITIVE." In addition, he discusses Ariz. Rev. Stat. §§ 13-1203 & 1204
in detail, characterizing the underlying assault statute, section 13-1203, as over-
inclusive because it encompasses different offenses, only some of which satisfy the
generic elements of assault as relevant for federal enhancement and recidivist
provisions. In particular, he argues section 13-1203 defines assault to include various
actions, one of which may be satisfied with a mens rea of mere recklessness (if an
actual injury results), see Ariz. Rev. Stat. § 13-1203(A)(1) ("Intentionally, knowingly
or recklessly causing any physical injury to another person"), and another one of
which may be satisfied with mere insulting or provoking contact (without a
requirement for a resultant injury, violent contact, or threats of violence), see id.
(A)(3) ("Knowingly touching another person with the intent to . . . insult or provoke
such person"). He presents additional arguments related to the scope of permissible
materials for use in applying the modified categorical approach, and the need to look
beyond the state's labels for its offenses to examine the elements of the underlying
state offenses.

The government counters that we need look no further than the state's label of
"aggravated assault" for the underlying offense. In the alternative, the government
argues state records show that Ossana was convicted pursuant to a subsection of the
state statute that qualifies as a crime of violence because it has as an element the use
or threatened use of force or because it qualifies as a crime of violence pursuant to the
"residual clause." We address these arguments below.

II.

The guideline provision for determining Ossana's base offense level adds six
levels to the base offense if the defendant has a prior conviction for a "crime of
violence." U.S.S.G. § 2K2.1(a)(4)(A). Section 2K2.1 does not itself define the term
"crime of violence," but the commentary to this section states, "'Crime of violence' has

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the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary
to § 4B1.2." Section 4B1.2(a), in turn, provides:

(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one year,
that--
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

In addition, Application Note 1 of the Commentary to section 4B1.2 lists several
example crimes that qualify as crimes of violence, including, among others, "murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses . . . ."

The government first argues that, given the listing of "aggravated assault" in the
Commentary to section 4B1.2, we need look no further than the name Arizona chose
to place on the statute of conviction, "Aggravated Assault," or that appears on the
written judgment, "Aggravated Assault/Deadly Weapon." We disagree. In Taylor v.
United States, 495 U.S. 575 (1990), when addressing the definition of the term
"burglary" as used in 18 U.S.C. § 924(e)(2)(B)(ii),3 the Court held Congress intended
the term to have one uniform definition—a definition comporting with "the generic
sense in which the term is now used in the criminal code of most States." Id. at 598.
Importantly, in reaching this conclusion, the Supreme Court rejected the argument that
courts could simply look to "whether the State of [the] prior conviction happened to
call that conduct 'burglary.'" Id. at 591. We have recognized that this rule of Taylor

3
For present purposes, we treat authority interpreting the term "violent felony"
from the career offender statute, 18 U.S.C. § 924(e), as applicable in interpreting the
similarly defined term "crime of violence" from U.S.S.G. § 4B1.2(a). See United
States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011).

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also applies to the definitions of terms used in section 4B1.2 and the listed offenses
from the commentary to section 4B1.2. See United States v. Malloy, 614 F.3d 852,
857 (8th Cir. 2010) (recognizing that courts "cannot rely solely on the label given to
a particular crime when deciding whether it qualifies as a crime of violence"); United
States v. Ross, 613 F.3d 805, 809 (8th Cir. 2010) ("The guidelines typically establish
federal definitions for the operative terms rather than incorporate wholesale the labels
used by state law."); see also, United States v. Palomino Garcia, 606 F.3d 1317, 1329
(11th Cir. 2010) ("Our sister circuits have . . . uniformly rejected the argument
advanced by the government here that the label the state happens to attach to the crime
of conviction determines whether it is a crime of violence warranting an enhancement
under the Guidelines.").4

Our first step in applying the crime-of-violence definition of section 4B1.2(a),
then, is to determine whether to apply the categorical or modified categorical
approach. Pursuant to the categorical approach, we are concerned only with the fact
of a prior conviction and the statutory elements of the underlying offense. See Vinton,
631 F.3d at 484–85. We are not concerned with the particular manner in which
Ossana committed the offense or the specific details of his prior criminal act. Id. If,
however, the underlying statute encompasses multiple different crimes, only some of
which qualify as crimes of violence, we apply the modified categorical approach and
examine a limited class of record materials to determine which actual crime Ossana
committed. Id. In applying either approach, we examine the elements of the
underlying state offense to determine if the conviction necessarily involved "the use,

4
While we reject the government's argument in this regard, we are sympathetic
toward the district court in this particular instance and understand why the manner in
which the parties presented the issue resulted in the absence of an express discussion
of the elements of the offense. Here, without specific arguments from the parties
detailing the elements of Ariz. Rev. Stat. §§ 13-1203 & 1204, it is not apparent from
the state's labels for the offenses that the statutory definition might fail to comport
with the generic definition for aggravated assault.

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attempted use, or threatened use of physical force against the person of another,"
U.S.S.G. § 4B1.2(a)(1), otherwise encompassed the generic definition of one of the
enumerated offenses in Application Note 1 of the Commentary to section 4B1.2, or
fits within the residual clause of section 4B1.2(a)(2).

Here, the offense of conviction, Ariz. Rev. Stat. § 13-1204, requires proof of
a violation of the elements of Ariz. Rev. Stat. § 13-1203, the underlying simple assault
statute. Section 13-1203 can be violated with any degree of contact by "[k]nowingly
touching another person with the intent to . . . insult or provoke such person," id. at
1203(A)(3). As per Johnson v. United States, 130 S. Ct. 1265, 1270–71 (2010), such
contact does not qualify as the use of physical force because it is not violent force. Id.
(rejecting the argument that "physical force" as used in 18 U.S.C. § 924(e)(2)(B)(i)
encompasses all types of contact and limiting its definition to violent force of the type
capable of causing physical injury). Accordingly, a conviction pursuant to this
subdivision of the statute would not qualify as a crime of violence pursuant to section
4B1.2(a)(1). Because the degree of contact required is undefined, we believe this
subdivision of the Arizona statute also fails to qualify as a crime of violence under the
residual clause because it could be wholly dissimilar in kind to offenses listed in
section 4B1.2(a)(2).

Further, pursuant to subsection (A)(1) of the Arizona statute, it is possible to
commit assault with merely reckless behavior if an actual physical injury results.
Ariz. Rev. Stat. § 13-1203(A)(1) ("Intentionally, knowingly or recklessly causing any
physical injury to another person"). Arizona's courts have applied this statutory
subdivision to obtain aggravated-assault convictions stemming from reckless driving
where the defendant's action caused an injury and the defendant's conduct was merely
reckless. See State v. Williams, 854 P.2d 131, 132 (Ariz. 1993) (affirming a
conviction pursuant to sections 13-1203 & 1204 based upon reckless driving and
labeling the offense "aggravated assault for recklessly causing physical injury using
a dangerous instrument," but reversing as to the application of a different penalty

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enhancement); State v. Yingst, No. 1 CA-CR 07-0034, 2008 WL 3856354, *2 (Ariz.
Ct. App. Mar. 11, 2008) (affirming a conviction under the same statutory sections
based upon reckless driving resulting in injury); State v. Garcia, 799 P.2d 888, 893
(Ariz. Ct. App. 1990) (same).

Our court has not resolved the issue of whether a crime involving a mens rea
of mere recklessness may qualify as a crime of violence. See United States v. Jones,
574 F.3d 546, 551 (8th Cir. 2009) ("[T]he Eighth Circuit has not held that crimes with
a mens rea of recklessness cannot constitute violent felonies, and this panel need not
address this issue here."). Accordingly, before turning to application of the modified
categorical approach, we first must address this open question to determine if there are
two or merely one means of violating the underlying statute in this case without
committing a crime of violence.

In Begay v. United States, 553 U.S. 137 (2008), the Supreme Court interpreted
the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) and emphasized that qualifying
crimes must demonstrate a defendant's propensity towards "purposeful, violent, and
aggressive conduct," id. at 144–45 (internal quotations marks omitted), such that the
prior conviction shows it is "more likely that an offender, later possessing a gun, will
use that gun deliberately to harm a victim." Id. at 145. Several circuits have
interpreted Begay as excluding crimes involving the mens rea of recklessness. See
United States v. Jenkins, 631 F.3d 680, 685 (4th Cir. 2011) ("Thus, under Begay and
Chambers[ v. United States, 555 U.S. 122 (2009)], the Resisting Arrest Offense is not
a 'crime of violence' for purposes of the Career Offender Enhancement only if it can
be committed either negligently or recklessly—as opposed to intentionally or
purposefully."); United States v. Holloway, 630 F.3d 252, 261–62 (1st Cir. 2011);
United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010); United States v. Smith,
544 F.3d 781, 785–86 (7th Cir. 2008); United States v. Gray, 535 F.3d 128, 131–32
(2d Cir. 2008). In fact, the Ninth Circuit has held that the specific Arizona statute at
issue in the present case is overinclusive because the subdivision criminalizing

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reckless injury is not a crime of violence. See United States v. Esparza-Herrera, 557
F.3d 1019, 1024–25 (9th Cir. 2009). Further, in at least one reported case, the
government withdrew its argument that "reckless conduct, standing alone" could
qualify as a crime of violence pursuant to the residual clause, representing, contrary
to the government's present position, that the Department of Justice had "clarified its
position." See United States v. Johnson, 587 F.3d 203, 210 (3d Cir. 2009) (declining
to resolve the question of recklessness based upon the government's withdrawal of the
issue where the underlying offense was simple assault).5 The parties have cited, and
we have identified, no circuit-level cases post Begay in which a court found an offense
qualified as a violent felony or crime of violence where the mens rea for the offense
was mere recklessness and where there were no further qualifications to suggest
purposeful, violent, or aggressive conduct.6

That is not to say we believe this issue presents an easy question. Before
Begay, the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), while interpreting
the "crime of violence" definition for 18 U.S.C. § 16, expressly declined to address
the question of recklessness. 574 U.S. at 13 ("This case does not present us with the
question whether a state or federal offense that requires proof of the reckless use of
force against a person or property of another qualifies as a crime of violence under 18

5
It is not clear why the Department of Justice has adopted the opposite position
in the present case or if the Third Circuit's reference to the Department of Justice
encompassed only the position of a local office.
6
We qualify and limit our holding today to the crimes such as the crime at issue
which encompasses the unadorned offense of reckless driving resulting in injury. This
crime is distinct from other crimes of recklessness such as reckless flight from a police
officer, see, e.g., United States v. Ethingor, 388 F. App'x 858, 862 (11th Cir. 2010),
where other elements of the offense (eluding an officer) involve purposeful conduct
arguably similar to listed offenses and likely to incur pursuit and potentially violent
conflict with an officer. Given the nature of the offense under examination in this
case and the dissimilarity to listed offenses in the residual clause of section
4B1.2(a)(2), further analysis under the residual clause is unnecessary.

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U.S.C. § 16."). And in Begay, Justice Scalia concurred separately in the judgment and
rejected the majority's mode of analysis, noting that "one of the enumerated crimes [in
§ 924(e)(2)(B)(ii)]—the unlawful use of explosives—may involve merely negligent
or reckless conduct." Begay, 553 U.S. at 152; accord Jones, 574 F.3d at 551
(declining to address this issue). We believe this reference illustrates a difficulty with
this entire field of inquiry: while the criminal act the concurrence references may be
conditioned upon mere recklessness, the underlying use of explosives itself would
appear in all qualifying instances to be intentional or purposeful and inherently highly
dangerous as contrasted with the more safe activity of driving. In any event, the
referenced crime appears to be a crime of a different nature than the crime under
examination today, and the reference was not from a holding of the Court.

In support of its position, the government cites a pre-Begay case from the Fifth
Circuit, and a pre-Begay, unpublished Sixth Circuit opinion that relies on the Fifth
Circuit's case to argue such crimes may qualify as crimes of violence. See United
States v. Mungia-Portillo, 484 F.3d 813, 817 (5th Cir. 2007) (interpreting an assault
statute similar to Arizona's that encompassed reckless injury and holding the offense
to be a crime of violence); United States v. Mendoza-Mendoza, 239 F. App'x 216,
221–22 (6th Cir. 2007). While we do not suggest that the Fifth Circuit has amended
its approach post-Begay, we find no discussion of this exact issue or express holding
affirming this position post-Begay. Further, the Sixth Circuit, as cited above, has
expressly rejected the argument that a crime of violence may stem from a mens rea of
mere recklessness. McFalls, 592 F.3d at 716.

We believe the apparent uniformity of views among the circuits to address this
issue post-Begay militates in favor of adopting the same position. In addition, we find
the other courts' reasoning to be persuasive, especially as relevant to the Arizona
statute under examination today. The Second Circuit, in Gray, for example, found it
compelling that the Supreme Court in Begay discussed a "recklessness" crime that did
not qualify as a crime of violence to make a distinction between crimes that do and do

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not exhibit the type of deliberate violent behavior associated with crimes of violence.
The court in Gray stated:

Begay places a strong emphasis on intentional-purposeful-conduct as a
prerequisite for a crime to be considered similar in kind to the listed
crimes. The Court was concerned that, without this requirement, the
statute would apply to a large number of crimes which pose a great
degree of risk to others but are far removed "from the deliberate kind of
behavior associated with violent criminal use of firearms."

535 F.3d at 131–32 (quoting Begay, 553 U.S. at 147). The Second Circuit continued
its discussion in a footnote, stating:

The crime of reckless tampering with consumer products was offered as
an example to illustrate this point. See Begay, 128 S. Ct. at 1587. A
person is guilty of this offense if he or she, "with reckless disregard for
the risk that another person will be placed in danger of death or bodily
injury and under circumstances manifesting extreme indifference to such
risk, tampers with any consumer product." 18 U.S.C. § 1365(a).

Id. at 132 n.3. We also find the Supreme Court's own discussion on this exact point
to be particularly persuasive. The Court distinguished crimes that show a mere
"callousness toward risk" from crimes that "also show an increased likelihood that the
offender is the kind of person who might deliberately point the gun and pull the
trigger." Begay, 553 U.S. at 146. The Court continued:

Were we to read the statute without this distinction, its 15-year
mandatory minimum sentence would apply to a host of crimes which,
though dangerous, are not typically committed by those whom one
normally labels "armed career criminals." See, e.g., Ark. Code Ann.
§ 8-4-103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U.S.C. § 1319(c)(1)
(individuals who negligently introduce pollutants into the sewer system);
18 U.S.C. § 1365(a) (individuals who recklessly tamper with consumer
products); § 1115 (seamen whose inattention to duty causes serious

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 accidents). We have no reason to believe that Congress intended to
bring within the statute's scope these kinds of crimes, far removed as
they are from the deliberate kind of behavior associated with violent
criminal use of firearms.

Id. at 146–47.

Given the Arizona courts' interpretation of the Arizona assault statutes as
encompassing reckless driving that results in an injury, it is difficult to see any
meaningful distinction between the Court's example crime of recklessly tampering
with consumer products, 18 U.S.C. § 1365(a), and the Arizona offense. As such, we
hold that a conviction pursuant to Ariz. Rev. Stat. §§ 13-1203 & 1204 involving
merely reckless use of a vehicle is not a crime of violence. We believe, in addition,
that this same analysis demonstrates the same offense would not be a crime of
violence pursuant to the residual clause of U.S.S.G. § 4B1.2(a)(2).

Turning to application of the modified categorical approach, we may look at a
narrow category of materials to determine the subdivision of the Arizona statute for
which Ossana was convicted. Judicial records qualify for examination, but police
reports do not. See Shepard v. United States, 544 U.S. 13, 16 (2005) (sentencing
court may not "look to police reports or complaint applications" but may look to "the
statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented"). The government argues we may look to a state presentence investigation
report that the government placed into the sentencing record via Exhibit 8, as
referenced above. The report at issue, however, does not represent a judicial finding,
does not reflect the extent to which Ossana may have admitted to the statements
contained in the report, and is silent as to the sources of the statements contained
therein. In this context, we may not refer to the report when applying the modified
categorical approach. In fact, we recently held that, in applying the modified
categorical approach, sentencing courts may not look to factual assertions within

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federal presentence investigation reports—even if the defendant failed to object to the
reports—where the source of the information in the reports might have been from a
non-judicial source. See United States v. Thomas, 630 F.3d 1055, 1056–57 (8th Cir.
2011) (remanding for resentencing but disallowing further development of the record
on remand); United States v. Williams, 627 F.3d 324, 328–29 (8th Cir. 2010)
(remanding for resentencing and permitting further development of the record on
remand).

Here, all that the Shepard-qualifying materials demonstrate is that the
dangerous instrumentality involved in Ossana's Arizona conviction was a vehicle.
Qualifying records do not suggest whether any party was injured (as required to
permit a conviction based upon a mens rea of recklessness), what Ossana's mens rea
may have been, or how precisely Ossana used the vehicle. We cannot assume the
absence of a resulting injury (which would eliminate the possibility of a conviction
based upon mere recklessness) because the government bears the burden of proof and
to make this assumption would be to speculate in a manner adverse to the defendant.
We also cannot assume any particular mens rea from among those listed in the state
statute.

Because Ossana's conviction was for aggravated assault using a vehicle as a
dangerous instrumentality, Ariz. Rev. Stat. § 13-1204, however, we believe the record
shows that his underlying violation of the simple-assault statute did not involve the
subdivision criminalizing merely insulting or provocative contact as described in
section 13-1203(A)(3). Use of a dangerous instrument or deadly weapon is an express
element of the aggravated assault statute, not merely a label. Further, we find no
Arizona authority suggesting it is possible to commit aggravated assault using a
dangerous instrumentality or deadly weapon pursuant to section 13-1204 to commit
an assault pursuant to the underlying section 13-1203(A)(3) for merely insulting or
provocative contact. Rather, it would seem that any arguably non-violent contact of
another with a dangerous instrumentality or deadly weapon would place that person

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in fear of violent force thereby bringing the offense within a different, qualifying
statutory subsection. See Ariz. Rev. Stat. § 13-1203(A)(2) (intentional threats of
physical injury). Accordingly, we are able to eliminate the possibility that Ossana's
underlying section 13-1203 violation involved nothing more than insulting or
provocative touching. Still, Ossana's conviction, like the conviction in Garcia, 799
P.2d at 893, could have been based merely upon reckless driving that resulted in
injury. Without resorting to speculation or impermissible materials, the possibility
remains that Ossana's conviction was not a crime of violence.7

Finally, we note that Ossana's arguments concerning a state-court judge's
characterization of the offense as "NONDANGEROUS; NONREPETITIVE" are
largely immaterial to our analysis. The modified categorical approach, like the
categorical approach, is not concerned with the specific details of how a defendant
committed his prior offense or whether a state court or state legislature considered the
offense to be violent or dangerous. Our analysis is concerned only with the fact of the
conviction and identifying the particular subpart of a statute that the defendant
violated. Vinton, 631 F.3d at 484–85.

Given our conclusion, remand is necessary. Our recent cases have indicated
that, on remand, it may sometimes be appropriate to allow expansion of the record and
may, at other times, be appropriate to remand for resentencing without expansion of
the record. Compare Thomas, 630 F.3d at 1056–57, with Williams, 627 F.3d at 329.
It seems that our distinction rested upon the clarity of the issue below and whether we

7
Among the materials the government submitted at sentencing was a state
presentence investigation report purportedly describing the specific details of Ossana's
offense. This document describes a scene in which Ossana backed a car over a police
officer's bicycle and fled from the officer when the officer was ordering him to stop.
The officer was in close proximity to Ossana's car and broke Ossana's window with
a baton in an effort to make Ossana stop. This report does not indicate its sources, and
as per Thomas and Williams we may not rely upon it to help determine the subsection
of Ossana's offense.

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deemed the government's failure of proof at the initial sentencing to be excusable.
Here, given the vagueness of Ossana's objections below, we believe it is appropriate
to permit the government to expand the sentencing record and permit the use of
additional Shepard-qualifying materials (if any exist) at resentencing.

We vacate the sentence imposed by the district court and remand for
resentencing.
______________________________

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