United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2591

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

Timothy G. Ossana, *

*

Defendant-Appellant. *

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Submitted: March 13, 2012

Filed: May 17, 2012

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Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

In an earlier appeal, we held the government failed to prove a prior Arizona

conviction qualified as a crime of violence pursuant to United States Sentencing

Guidelines § 2K2.1(a)(4)(A). See United States v. Ossana, 638 F.3d 895 (8th Cir.

2011). We remanded for resentencing and expressly noted the government could

expand the record with additional materials consistent with Shepard v. United States,

544 U.S. 13, 16 (2005), to apply the modified categorical approach and determine

which subsection of the relevant Arizona statute led to Ossana's prior conviction.
On remand, the government introduced a transcript of a plea colloquy fromthe

underlying Arizona conviction. The district court determined this plea colloquy

demonstrated Ossana had been convicted pursuant to a subsection of the Arizona

statute that defined a crime of violence. We affirm.

We set forth a detailed recitation of the facts in our prior opinion, Ossana, 638

F.3d at 897–98, and do not repeat them here. The only issue involved in the present

appeal is whether the prior conviction involving an overinclusive state statute arose

from a subsection of the statute that qualifies as a "crime of violence." The prior

conviction was for Aggravated Assault, Ariz. Rev. Stat. § 13-1204, which crossreferences Arizona's simple assault statute and sets forth aggravating circumstances,

including use of "a deadly weapon or dangerous instrument." Ariz. Rev. Stat. § 13-

1204 (A)(2) (cross referencing Ariz. Rev. Stat. § 13-1203). Arizona charged and

convicted Ossana citing this aggravator, and the instrument used was a vehicle.

The underlying, cross-referenced assault statute may be violated in several

distinct ways:

A. A person commits assault by:

1. Intentionally, knowinglyorrecklessly causing any physical

injury to another person; or

2. Intentionally placing another person in reasonable

apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to

injure, insult or provoke such person.

Ariz. Rev. Stat. § 13-1203.

In the prior appeal, we concluded that, given Arizona's interpretations of its

own statute, a conviction pursuant to Section 13-1203(A)(1) involving an actual

"injury to another person" but a mens rea of mere recklessness would not qualify as

a crime of violence. Ossana, 638 F.3d at 903. We also concluded that a violation of

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Section 13-1203(A)(3) involving touching intended to provoke or insult another

person would not qualify as a crime of violence. Id. In addition, we discussed the

state of the record as to the absence or presence of an injury and as to Ossana's

underlying mens rea:

Here, all that the Shepard-qualifying materials demonstrate is that the

dangerousinstrumentality involved in Ossana's Arizona conviction was

a vehicle. Qualifying records do not suggest whether any party was

injured (as required to permit a conviction based upon a mens rea of

recklessness), what Ossana's mens rea may have been, or how precisely

Ossana used the vehicle. We cannot assume the absence of a resulting

injury (which would eliminate the possibility of a conviction based upon

mere recklessness) because the government bears the burden of proof

and to make this assumption would be to speculate in a manner adverse

to the defendant. We also cannot assume any particular mens rea from

among those listed in the state statute.

Id. at 903–04.

On remand, it wasthe government's burden to prove Ossana's prior conviction

stemmed from a violation of a subsection qualifying as a crime of violence. To meet

this burden, the government had to introduce qualifying state court materials to prove

the absence of an injury (thereby eliminating the possibility of a conviction based on

mere recklessness which is a qualifying mens rea under the statute only as to the

subsection involving actual injury) or to prove that the prior conviction involved

proof of a mens rea greater than recklessness. 

The government introduced a transcript of the plea colloquy from Ossana's

change-of-plea hearing in Arizona State Court. The parties agree that this transcript

qualifies as permissible Shepard material for the purpose of analyzing the prior

conviction pursuant to the modified categorical approach. The plea colloquy

contained the following exchange:

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The Court: Okay. So why don't you go ahead and tell me what

happened on or about June 24th, 1998?

Ossana: Um, okay. On June 23rd, I guess June 24th, I – I was in

my vehicle. I was parked in a motel parking lot talking to

a friend. He was leaned up against the passenger side of

the car. I had a passenger in the car. Two police officers

approached me, one ordered me to turn off the vehicle. I

asked he why. Um, had I broken the law? He says no, turn

it off. And in the meantime, another officer approached the

driver's side of the vehicle and asked me to turn the car off

and roll down the window. He asked me to roll down the

window. I rolled down my window. I asked him what he

wanted and he said, I said turn off the car. He started

hitting my window with the stick and – a baton, whatever. 

So I took off my – my car and I ran over his bicycle.

Counsel: They were bicycle cops, Your Honor. Bike was in back of

car . He ran over it at the same time the officer was – had

to jump out of the way of the vehicle.

The Court: You could have run over an officer; right?

Ossana: Unintentionally. I know it wasn't a smart thing to do.

Based on this colloquy, Ossana argued to the district court that it was not

possible to determine whether an injury resulted or what his mens rea might have

been. The government suggested Ossana was attempting to collaterally attack his

prior conviction by asserting that no subdivision applied. Ossana argued that he was

not attempting to collaterally attack his prior conviction; he was merely arguing that

the plea colloquy provided an insufficient basis to discern which subsection was

involved. 

The district court, reviewing the initial record and this new material, disagreed,

concluding, "The Court finds that by a preponderance of the evidence, which I

believe is the appropriate standard, that . . . the criminal offense to which he pled

guilty was subsection two as we have been referring to it." Subsection two refers to

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Ariz. Rev. Stat. § 13-1203(A)(2) and defines a crime of violence, as explained in our

prior opinion.

We review de novo the application of the modified categorical approach.

United States v. Linngren, 652 F.3d 868, 873 (8th Cir. 2011) ("Consequently, the

district court, and now this court on de novo review, must look beyond the fact of

conviction . . . and employ the modified categorical approach to determine whether

[the] prior conviction rested on the portion of the . . . Statute . . . qualify[ing] for the

sentencing enhancement."); United States v. Boaz, 558 F.3d 800, 805 (8th Cir. 2009)

("We have repeatedly held that whether a particular conviction qualifies as a predicate

felony for the purpose of § 922(g) is a question of law for the district court."). When

reviewing the Shepard-qualifying materials surrounding a prior conviction, we

employ the preponderance of the evidence standard to determine the discrete

subsection of a criminalstatute at issue. United States v. Williams, 664 F.3d 719, 721

(8th Cir. 2011) ("If the government establishes by a preponderance of the evidence

that the prior felony conviction was for a crime of violence, then the § 2K2.1(a)(3)

sentencing enhancement applies."). 

Here, the record shows the officer was in fear of imminent harm — he was

forced to jump out of the way of a moving vehicle that ultimately ran over his bicycle. 

Based upon thisfact, it isreasonable to infer that the officer successfully jumped from

harm's way and was not injured. In the absence of an injury, we must infer the

conviction did not stem from a violation of Ariz. Rev. Stat. § 13-1203(A)(1) and

therefore must have involved subsection (A)(2). 

In the initial appeal, when the plea colloquy was not a part of the record and

the details of the offense were unknown, a conclusion as to the presence or absence

of injury would have amounted to naked and impermissible speculation. Here,

however, the factual description showing that the officer jumped out of harm's way

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lifts the finding above the level of mere speculation and supports the reasonable

inference that no injury occurred. 

It is important to note that, in this case, the applicable standard of proof

matters. The finding at issue impacts only the advisory Guidelines range and, as

such, requires proof only by a preponderance of the evidence. Id. Also, we do not

conduct a review of the state court records in this context and make findings

specifically as to the details of the prior offense. Rather, we review the records

merely to determine which discrete subsection of the underlying criminal statute the

state relied upon to secure the guilty plea. Typically, such an analysis requires little

from the reviewing court in terms of inferences or factual determinations. 

Occasionally, however, asin this case, it will be necessary to interpret the state

court record and make reasonable inferences based upon the Shepard-qualifying

materials in order to identify the discrete statutory subdivision at issue. In other

cases, the paucity of information in state court records may wholly thwart analysis

pursuant to the modified categorical approach. See, e.g., Johnson v. United States,

130 S. Ct. 1265, 1273 (2010) ("It may well be true . . . that in many cases state and

local records from . . . convictions will be incomplete. [A]bsence of records will

often frustrate application of the modified categorical approach."). Here, although

some uncertainty remains as to whether an actual injury resulted from the events

described in the plea colloquy, we believe that the record adequately shows by a

preponderance of the evidence that no injury occurred. We do not suggest that the

limited plea colloquy quoted above would support the same finding beyond a

reasonable doubt. 

We also note that the government argues Arizona'sinterpretation of Ariz. Rev.

Stat. § 13-1203(A)(2) requires proof only of an intentional act and not proof of a

defendant's intent to place a victim in fear of imminent bodily harm. We reject the

government's argument as an incorrect interpretation of Arizona law. To support its

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position, the government cites Arizona v. Davis, No. 2 CA-CR 2007-0321, 2008 WL

2628944 (Ariz. Ct. App. Div. 2) (unpublished). Davis, however, stands neither for

the proposition that any intentional act suffices to prove the requisite intent nor that

intentional acts with vehicles are somehow unique. Rather, Davis holds merely that

the particular use of a vehicle in that case sufficed to show the requisite intent to

make a victim fear imminent harm. Id. at *2.

We affirm the judgment of the district court.

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