United States v. Barvarito Garcia-Longoria
819 F.3d 1063
8th Cir.2016Background
- Garcia-Longoria, a felon, drove his estranged wife and daughter into Iowa, threatened to kill his wife, fired a gun several times, returned to Omaha and gave the gun to his wife; she turned it in and called police.
- He pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), admitting a prior third-degree felony conviction for assaulting a police officer under Neb. Rev. Stat. § 28-931(1).
- The PSR recommended increasing his base offense level to 20 under U.S.S.G. § 2K2.1(a)(4)(A) because the prior conviction was for a "crime of violence;" Garcia-Longoria did not object to the PSR.
- The district court adopted level 20, yielding an advisory guideline range of 78–97 months and sentenced him to 84 months.
- On appeal he argued plain error: Nebraska third-degree assault is not categorically a "crime of violence" because the statute covers intentional, knowing, or reckless conduct; thus the prior conviction should not have triggered the enhancement.
- The Eighth Circuit affirmed, concluding the PSR facts (unchallenged) showed Garcia-Longoria intentionally struck an officer, and that the mens rea alternatives in the Nebraska statute are divisible so the modified categorical approach could apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska third-degree assault (§ 28-931(1)) is a "crime of violence" for § 2K2.1(a)(4)(A) purposes | Garcia-Longoria: statute’s inclusion of "recklessly" means it is not categorically a crime of violence | Government: conviction involved intentional bodily injury to an officer, which is violent force and thus a crime of violence | Held: Affirmed — conviction qualifies because unchallenged PSR shows intentional assault; statute’s mens rea alternatives are divisible, permitting modified categorical analysis |
| Whether the modified categorical approach may be used when mens rea alternatives appear in one subsection | Garcia-Longoria: Descamps bars using the modified categorical approach because mens rea alternatives are in the same subsection (textually indivisible) | Government: Descamps and subsequent authorities allow examining which mens rea was proved; Nebraska precedent treats intentional and reckless variants as different crimes | Held: Mens rea alternatives are divisible; Descamps does not preclude using modified categorical approach here |
| Whether unobjected-to PSR factual recitals can establish the nature of the prior conviction | Garcia-Longoria: PSR paragraph citing facts cannot substitute for the limited documents Taylor/Shepard require | Government: Failure to object relieved government of obligation to introduce the prior-court documents; unobjected facts suffice | Held: Because defendant did not object, PSR facts are an adequate basis; district court did not plainly err |
| Whether reckless commission of § 28-931(1) would be a crime of violence | Garcia-Longoria: reckless variant arguably non-violent | Government: concededly the court assumed recklessness might not qualify but PSR shows intentional conduct | Held: Court assumed recklessness might not qualify but found no error because conviction (per PSR) involved intentional force |
Key Cases Cited
- Malloy v. United States, 614 F.3d 852 (8th Cir. 2010) (analyzing force-clause applicability where statute required inflicting bodily injury on an officer)
- Johnson v. United States, 559 U.S. 133 (2010) (physical force means violent force capable of causing pain or injury)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach to divisible statutes)
- United States v. Castleman, 134 S. Ct. 1405 (2014) (applied modified categorical approach where statute listed alternative mens rea including recklessness; defendant’s plea showed intentional conduct)
- McCall v. United States, 439 F.3d 967 (8th Cir. 2006) (failure to object to PSR may relieve government of obligation to introduce Taylor/Shepard documents)