United States v. Merlin Marcia-Acosta
2015 U.S. App. LEXIS 4714
| 9th Cir. | 2015Background
- Merlin Marcia-Acosta, a Honduran national, pled guilty in Arizona (2007) to aggravated assault under Ariz. Rev. Stat. §§ 13-1203 and 13-1204 after an incident involving a metal bar; plea documents did not specify which mens rea subsection (intentional, knowing, or reckless) was the basis.
- After serving part of his sentence, Marcia-Acosta was deported (2008), then unlawfully reentered the U.S. and was convicted under 8 U.S.C. § 1326 for illegal reentry.
- At federal sentencing the government sought a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), arguing the Arizona aggravated-assault conviction was a "crime of violence."
- The district court applied the modified categorical approach and relied solely on the defense attorney’s factual-basis statement at the plea colloquy (that Marcia-Acosta hit the victim "intentionally") to conclude the prior conviction matched the generic aggravated-assault definition, imposing a 77-month sentence.
- The Ninth Circuit reversed, holding the district court misapplied Descamps by using an extraneous factual admission (plea-colloquy detail) to determine which mens rea element formed the basis of the conviction; the record did not show the conviction necessarily rested on intentional (or knowing) conduct rather than recklessness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marcia-Acosta’s Arizona aggravated-assault conviction is a "crime of violence" under U.S.S.G. § 2L1.2, permitting a 16-level enhancement | Gov: Plea-colloquy factual statement that he acted "intentionally" shows the conviction matched the generic aggravated-assault elements | Marcia-Acosta: Plea documents are ambiguous; mens rea could be reckless, so conviction does not necessarily match the generic offense | Reversed: Court held the district court erred by relying solely on the attorney’s factual-basis statement; under Descamps/Shepard the modified categorical approach cannot rest on extraneous factual admissions that do not show the conviction necessarily depended on the generic element |
| Whether the modified categorical approach permits using a plea-colloquy factual admission (by counsel) to identify the statutory alternative forming the conviction | Gov: Shepard allows consulting plea colloquy; counsel’s factual statement narrows the conviction to intentional assault | Marcia-Acosta: Such factual admissions are extraneous and unreliable; Descamps forbids substituting fact-based inquiry for element focus | Held: Shepard permits limited documents, but Descamps requires element-based focus; an attorney’s factual-basis remark alone cannot supply the necessary narrowing where charging documents don’t do so |
| Whether earlier Ninth Circuit precedent (e.g., Smith) supports relying on plea statements to identify elements | Gov: Relies on Smith to justify using plea-hearing transcript where other documents are silent | Marcia-Acosta: Smith is inconsistent with Descamps and no longer controlling | Held: Smith is irreconcilable with Descamps and not controlling; post-Descamps framework forbids that fact-based inquiry |
| Remedy for erroneous Guidelines enhancement | Gov: Enhancement was proper and sentence should stand | Marcia-Acosta: Enhancement was erroneously applied; Guidelines range miscalculated | Held: Erroneous Guidelines calculation is a significant procedural error; sentence vacated and remanded for resentencing without the 16-level enhancement unless proper element-based record shows otherwise |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach; courts must focus on statutory elements, not underlying facts)
- Shepard v. United States, 544 U.S. 13 (2005) (identifies limited documents sentencing courts may consult to determine the offense of conviction)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes the categorical approach for comparing state offenses to generic federal offenses)
- United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009) (Arizona aggravated-assault statute broader than generic aggravated assault because it permits ordinary recklessness)
- United States v. Smith, 390 F.3d 661 (9th Cir. 2004) (pre-Descamps case approving reliance on plea-hearing facts; court here finds it no longer controlling)
- United States v. Quintero-Junco, 754 F.3d 746 (9th Cir. 2014) (post-Descamps decision rejecting fact-based use of plea colloquy to prove defendant actually committed the generic offense)
- United States v. Marrero, 743 F.3d 389 (3d Cir. 2014) (Third Circuit permitted reliance on plea-colloquy facts; noted tension with Descamps and treated differently by Ninth Circuit)