United States v. Ossana, 2012 U.S. App. LEXIS 9894

Ossana’s prior Arizona conviction for Aggravated Assault, Ariz. Rev. Stat. § 13-1204, cross-referenced § 13-1203, was at issue as a crime of violence under § 2K2.1(a)(4)(A).
On remand, the government introduced a plea colloquy transcript to apply the modified categorical approach per Shepard v. United States.
The district court inferred the offense fell under § 13-1203(A)(2) (the “deadly weapon or dangerous instrument” aggravator) based on the plea colloquy and vehicle use.
The prior appeal held that only certain subsections of § 13-1203 could qualify as crime of violence, with uncertainty about injury and mens rea.
The government bore the burden to prove the prior conviction rested on a qualifying subsection, or to show a greater mens rea than recklessness; the court must apply a preponderance standard under this approach.
The court concludes the record supports that the conviction involved subsection (A)(2) and that no injury occurred, affirming the district court’s application of the enhanced sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ossana’s Arizona conviction qualifies as a crime of violence under the modified categorical approach.	Ossana contends the plea colloquy cannot determine the exact subsection.	Government argues the plea colloquy and materials show §13-1203(A)(2) satisfied the crime-of-violence requirement.	Yes; the court adopts the district court’s conclusion that (A)(2) applied.
Whether Shepard materials and preponderance standard properly identify the discrete statutory subsection.	Ossana maintains lack of injury/mens rea clarity prevents precise subsection identification.	Government asserts materials suffice to prove the correct subsection by preponderance.	Yes; record supports identifying subsection (A)(2) by preponderance.
Whether Arizona’s §13-1203(A)(2) requires intent to place fear of imminent harm and how it applies to a vehicle use.	Ossana argues the colloquy does not establish the required mens rea.	Government contends the statute’s intent can be satisfied by intentional acts with vehicles to cause fear.	Court rejects broad interpretation; ultimately, record supports (A)(2) with fear element satisfied.

United States v. Ossana, 638 F.3d 895 (8th Cir. 2011) (applies modified categorical approach to determine理由 of prior conviction)
United States v. Linngren, 652 F.3d 868 (8th Cir. 2011) (de novo review of modified categorical approach; look beyond conviction only)
United States v. Boaz, 558 F.3d 800 (8th Cir. 2009) (person’s prior conviction as predicate felony for § 922(g))
United States v. Williams, 664 F.3d 719 (8th Cir. 2011) (preponderance standard in identifying discrete subsection under Shepard)