United States v. Moreno, 821 F.3d 223

Moreno pled guilty in Connecticut to attempted second-degree assault under Conn. Gen. Stat. § 53a-60; record lacks a specific subsection identified.
District court imposed 33 months for illegal reentry and 18 months consecutive for supervised release violation.
The district court used § 2L1.2(b)(1)(C) eight-level increase based on treating the prior conviction as an aggravated felony.
Plea colloquy did not specify the exact subsection Moreno pled to, and no explicit admission tied to a divisible substatute.
The government relied on the prosecutor’s account in the plea colloquy to classify the offense, but Moreno did not adopt that account; the court remanded for vacatur and resentencing.
The appellate court held the district court erred in applying the eight-level enhancement since the record did not establish that Moreno’s conviction was an aggravated felony under the modified categorical approach.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the eight-level enhancement applies based on Moreno’s prior Connecticut conviction.	Moreno argues the record cannot show an aggravated felony.	The government contends the conviction counts as an aggravated felony under the modified categorical approach.	Remanded for vacatur and resentencing; enhancement cannot be upheld on the record.
Whether the district court could rely on prosecutor’s plea-colloquy statements to apply the modified categorical approach.	Moreno did not adopt the prosecutor’s factual basis.	Colloquy constitutes a comparable record.	Reversed; prosecutor’s statements cannot be used absent defendant’s assent.
Whether the underlying Connecticut offense is a crime of violence under 18 U.S.C. § 16(a) or (b).	The offense may not be a crime of violence if only § 53a-60(a)(3) is non-violent.	The government treats the conviction as an aggravated felony.	Insufficient record to determine; cannot classify as aggravated felony; remand for resentencing.

Beardsley, 691 F.3d 252 (2d Cir. 2012) (framework for determining predicate offenses via categorical/modified approach)
Brown, 629 F.3d 290 (2d Cir. 2011) (distinguishes factual findings from legal questions about prior offenses)
Savage, 542 F.3d 959 (2d Cir. 2008) (burden on government to show prior conviction counts as predicate offense)
Rosa, 507 F.3d 142 (2d Cir. 2007) (limits use of prosecutor’s statements in modified categorical approach unless defendant assents)
Shepard, 544 U.S. 13 (2005) (defines admissible ‘adequate judicial record evidence’ for modified approach; requires defendant assent to factual basis)