United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2591
___________
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: March 13, 2012
Filed: May 17, 2012
___________
Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
___________
MELLOY, Circuit Judge.
In an earlier appeal, we held the government failed to prove a prior Arizona
conviction qualified as a crime of violence pursuant to United States Sentencing
Guidelines § 2K2.1(a)(4)(A). See United States v. Ossana, 638 F.3d 895 (8th Cir.
2011). We remanded for resentencing and expressly noted the government could
expand the record with additional materials consistent with Shepard v. United States,
544 U.S. 13, 16 (2005), to apply the modified categorical approach and determine
which subsection of the relevant Arizona statute led to Ossana's prior conviction.
On remand, the government introduced a transcript of a plea colloquy from the
underlying Arizona conviction. The district court determined this plea colloquy
demonstrated Ossana had been convicted pursuant to a subsection of the Arizona
statute that defined a crime of violence. We affirm.
We set forth a detailed recitation of the facts in our prior opinion, Ossana, 638
F.3d at 897–98, and do not repeat them here. The only issue involved in the present
appeal is whether the prior conviction involving an overinclusive state statute arose
from a subsection of the statute that qualifies as a "crime of violence." The prior
conviction was for Aggravated Assault, Ariz. Rev. Stat. § 13-1204, which cross-
references Arizona's simple assault statute and sets forth aggravating circumstances,
including use of "a deadly weapon or dangerous instrument." Ariz. Rev. Stat. § 13-
1204 (A)(2) (cross referencing Ariz. Rev. Stat. § 13-1203). Arizona charged and
convicted Ossana citing this aggravator, and the instrument used was a vehicle.
The underlying, cross-referenced assault statute 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.
Ariz. Rev. Stat. § 13-1203.
In the prior appeal, we concluded that, given Arizona's interpretations of its
own statute, a conviction pursuant to Section 13-1203(A)(1) involving an actual
"injury to another person" but a mens rea of mere recklessness would not qualify as
a crime of violence. Ossana, 638 F.3d at 903. We also concluded that a violation of
-2-
Section 13-1203(A)(3) involving touching intended to provoke or insult another
person would not qualify as a crime of violence. Id. In addition, we discussed the
state of the record as to the absence or presence of an injury and as to Ossana's
underlying mens rea:
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.
Id. at 903–04.
On remand, it was the government's burden to prove Ossana's prior conviction
stemmed from a violation of a subsection qualifying as a crime of violence. To meet
this burden, the government had to introduce qualifying state court materials to prove
the absence of an injury (thereby eliminating the possibility of a conviction based on
mere recklessness which is a qualifying mens rea under the statute only as to the
subsection involving actual injury) or to prove that the prior conviction involved
proof of a mens rea greater than recklessness.
The government introduced a transcript of the plea colloquy from Ossana's
change-of-plea hearing in Arizona State Court. The parties agree that this transcript
qualifies as permissible Shepard material for the purpose of analyzing the prior
conviction pursuant to the modified categorical approach. The plea colloquy
contained the following exchange:
-3-
The Court: Okay. So why don't you go ahead and tell me what
happened on or about June 24th, 1998?
Ossana: Um, okay. On June 23rd, I guess June 24th, I – I was in
my vehicle. I was parked in a motel parking lot talking to
a friend. He was leaned up against the passenger side of
the car. I had a passenger in the car. Two police officers
approached me, one ordered me to turn off the vehicle. I
asked he why. Um, had I broken the law? He says no, turn
it off. And in the meantime, another officer approached the
driver's side of the vehicle and asked me to turn the car off
and roll down the window. He asked me to roll down the
window. I rolled down my window. I asked him what he
wanted and he said, I said turn off the car. He started
hitting my window with the stick and – a baton, whatever.
So I took off my – my car and I ran over his bicycle.
Counsel: They were bicycle cops, Your Honor. Bike was in back of
car . He ran over it at the same time the officer was – had
to jump out of the way of the vehicle.
The Court: You could have run over an officer; right?
Ossana: Unintentionally. I know it wasn't a smart thing to do.
Based on this colloquy, Ossana argued to the district court that it was not
possible to determine whether an injury resulted or what his mens rea might have
been. The government suggested Ossana was attempting to collaterally attack his
prior conviction by asserting that no subdivision applied. Ossana argued that he was
not attempting to collaterally attack his prior conviction; he was merely arguing that
the plea colloquy provided an insufficient basis to discern which subsection was
involved.
The district court, reviewing the initial record and this new material, disagreed,
concluding, "The Court finds that by a preponderance of the evidence, which I
believe is the appropriate standard, that . . . the criminal offense to which he pled
guilty was subsection two as we have been referring to it." Subsection two refers to
-4-
Ariz. Rev. Stat. § 13-1203(A)(2) and defines a crime of violence, as explained in our
prior opinion.
We review de novo the application of the modified categorical approach.
United States v. Linngren, 652 F.3d 868, 873 (8th Cir. 2011) ("Consequently, the
district court, and now this court on de novo review, must look beyond the fact of
conviction . . . and employ the modified categorical approach to determine whether
[the] prior conviction rested on the portion of the . . . Statute . . . qualify[ing] for the
sentencing enhancement."); United States v. Boaz, 558 F.3d 800, 805 (8th Cir. 2009)
("We have repeatedly held that whether a particular conviction qualifies as a predicate
felony for the purpose of § 922(g) is a question of law for the district court."). When
reviewing the Shepard-qualifying materials surrounding a prior conviction, we
employ the preponderance of the evidence standard to determine the discrete
subsection of a criminal statute at issue. United States v. Williams, 664 F.3d 719, 721
(8th Cir. 2011) ("If the government establishes by a preponderance of the evidence
that the prior felony conviction was for a crime of violence, then the § 2K2.1(a)(3)
sentencing enhancement applies.").
Here, the record shows the officer was in fear of imminent harm — he was
forced to jump out of the way of a moving vehicle that ultimately ran over his bicycle.
Based upon this fact, it is reasonable to infer that the officer successfully jumped from
harm's way and was not injured. In the absence of an injury, we must infer the
conviction did not stem from a violation of Ariz. Rev. Stat. § 13-1203(A)(1) and
therefore must have involved subsection (A)(2).
In the initial appeal, when the plea colloquy was not a part of the record and
the details of the offense were unknown, a conclusion as to the presence or absence
of injury would have amounted to naked and impermissible speculation. Here,
however, the factual description showing that the officer jumped out of harm's way
-5-
lifts the finding above the level of mere speculation and supports the reasonable
inference that no injury occurred.
It is important to note that, in this case, the applicable standard of proof
matters. The finding at issue impacts only the advisory Guidelines range and, as
such, requires proof only by a preponderance of the evidence. Id. Also, we do not
conduct a review of the state court records in this context and make findings
specifically as to the details of the prior offense. Rather, we review the records
merely to determine which discrete subsection of the underlying criminal statute the
state relied upon to secure the guilty plea. Typically, such an analysis requires little
from the reviewing court in terms of inferences or factual determinations.
Occasionally, however, as in this case, it will be necessary to interpret the state
court record and make reasonable inferences based upon the Shepard-qualifying
materials in order to identify the discrete statutory subdivision at issue. In other
cases, the paucity of information in state court records may wholly thwart analysis
pursuant to the modified categorical approach. See, e.g., Johnson v. United States,
130 S. Ct. 1265, 1273 (2010) ("It may well be true . . . that in many cases state and
local records from . . . convictions will be incomplete. [A]bsence of records will
often frustrate application of the modified categorical approach."). Here, although
some uncertainty remains as to whether an actual injury resulted from the events
described in the plea colloquy, we believe that the record adequately shows by a
preponderance of the evidence that no injury occurred. We do not suggest that the
limited plea colloquy quoted above would support the same finding beyond a
reasonable doubt.
We also note that the government argues Arizona's interpretation of Ariz. Rev.
Stat. § 13-1203(A)(2) requires proof only of an intentional act and not proof of a
defendant's intent to place a victim in fear of imminent bodily harm. We reject the
government's argument as an incorrect interpretation of Arizona law. To support its
-6-
position, the government cites Arizona v. Davis, No. 2 CA-CR 2007-0321, 2008 WL
2628944 (Ariz. Ct. App. Div. 2) (unpublished). Davis, however, stands neither for
the proposition that any intentional act suffices to prove the requisite intent nor that
intentional acts with vehicles are somehow unique. Rather, Davis holds merely that
the particular use of a vehicle in that case sufficed to show the requisite intent to
make a victim fear imminent harm. Id. at *2.
We affirm the judgment of the district court.
______________________________
-7-