United States v. Ossana, 2011 U.S. App. LEXIS 8320

Ossana pled guilty to felon in possession of a firearm and contested the PSR’s base offense level under § 2K2.1(a)(4)(A) for a prior crime of violence.
The PSR assigned a base offense level of 20 based on a prior Arizona conviction for aggravated assault with a deadly weapon/dangerous instrument (Ariz. Rev. Stat. § 13-1204; CR-62031).
Ossana objected to the PSR, highlighting a state-court record labeling the offense as “NONDANGEROUS; NONREPETITIVE” and noting an appeal could affect his offense level and criminal history.
The government argued to rely on the Arizona label or, alternatively, that the underlying offense satisfies §4B1.2’s crime-of-violence elements or residual clause.
The district court did not resolve the underlying state-law elements at length; on appeal the court addressed whether 13-1203/1204 can be a crime of violence and whether the record supports applying the modified categorical approach.
The court vacated Ossana’s sentence and remanded for resentencing with permission to expand the record using Shepard-qualified materials.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Arizona conviction qualifies as a crime of violence	Ossana argues the government failed to show the offense meets 4B1.2(a)(1) or (2) as required by the modified/categorical approach	The government argues the label or elements show a qualifying crime of violence	Not a crime of violence; remand for resentencing
Whether the underlying Arizona statute involves recklessness sufficient for a crime of violence	The record suggests Reckless injury could yield aggravated assault under 13-1204	Recklessness does not necessarily qualify as violence under Begay and related cases	Reckless use of a vehicle-based offense not a crime of violence; Begay guidance applied; remand warranted
Whether the modified categorical approach may rely on Shepard materials	State-premeasurening materials could identify the precise subdivision	Only Shepard-qualifying materials may be used; non-judicial sources are inappropriate	Cannot rely on non-Shepard materials; remand to allow expansion with Shepard-qualified materials
Whether appellate remand is appropriate for resentencing	Record insufficient to resolve the classification at original sentencing	Remand may allow correction	Remand for resentencing with potential expansion of the record

Taylor v. United States, 495 U.S. 575 (U.S. 1990) (uniform definitional approach for state labels; use generic meaning)
Begay v. United States, 553 U.S. 137 (U.S. 2008) (recklessness generally not a crime of violence under Begay framework)
Johnson v. United States, 130 S. Ct. 1265 (S. Ct. 2010) (limits on applying residual/recklessness considerations in 4B1.2 context)
Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limits on sources for applying modified categorical approach; use certain documents only)
United States v. Malloy, 614 F.3d 852 (8th Cir. 2010) (limits on relying on state labels; focus on elements)
United States v. Ross, 613 F.3d 805 (8th Cir. 2010) (guidelines define crime-of-violence by 4B1.2 elements and notes)
United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (categorical vs modified-categorical approach analysis)
United States v. Thomas, 630 F.3d 1055 (8th Cir. 2011) (remand procedures; limitations on expanding the record on remand)
United States v. Williams, 627 F.3d 324 (8th Cir. 2010) (post-Begay considerations in record development on remand)
United States v. Garcia, 799 P.2d 893 (Ariz. 1990) (Arizona aggravated assault-related decisions cited in analysis)