Aggravated Recklessness Not Required for Generic Aggravated Assault; Garden-Variety Recklessness Will Do

United States v. Mungia-Portillo, No. 06-40273 (5th Cir. Apr. 17, 2007) (Garwood, Wiener, Clement)

It's COV time again. This time the question is whether a conviction under Tennessee's aggravated assault statute qualifies as a crime of violence for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). The court of appeals, in a flawed opinion, answers "yes."

The issue here turns on whether the Tennessee offense is the equivalent of generic aggravated assault, which is an enumerated COV. The focus winds up being on differences in the least culpable mental states required for the Tennessee and the Model Penal Code versions of aggravated assault (which isn't exactly the right question, as I'll explain later). The Tennessee statute allows for a conviction where the defendant acted recklessly. But mere recklessness isn't enough for aggravated assault under the MPC. Instead, the least culpable mental state required under the MPC is a form of aggravated recklessness: acting "recklessly under circumstances manifesting extreme indifference to the value of human life."

The argument, therefore, is that because the Tennessee statute allows for conviction on proof of a lesser mental state than the minimum required for the generic offense, it isn't generic aggravated assault. It's an excellent argument, and it is correct. Unfortunately, the court of appeals disagreed. It held that what it referred to as "minor" differences in the required mental states didn't make any difference, and that the Tennessee statute otherwise fits within the ordinary, contemporary, and common meaning of aggravated assault because it uses the typical aggravators (use of a weapon or causation of serious bodily injury).

There are two significant flaws in the court's analysis. The first is that it uses a "common-sense approach" to decide the issue, rather than the Taylor-Shepard categorical approach. (See this post for a discussion of the case that Mungia-Portillo cites for this point, and this post for some Ninth Circuit criticism of the common-sense approach.) As it has in past cases, the court doesn't clearly explain what the difference is between the two approaches, but if the application is any indication the common-sense approach appears to be far less rigorous than the categorical approach.

The second flaw in the court's reasoning is that is glosses over the critical difference between the degree of recklessness required under the Tennesee and generic aggravated assault definitions, and fails to consult all of the relevant sources for determining what the generic offense definition is in the first place. Here's what the court said (shorn of citations):

We have held that a prior statute of conviction need not perfectly correlate with the Model Penal Code; “minor differences” are acceptable. As a result, the fact that the Tennessee statute defines “reckless” differently than the Model Penal Code is not fatal, and we find this difference in definition to be sufficiently minor. LaFave’s treatise makes no special note of the degree of the mental culpability typical of an aggravated battery, and neither does Black’s Law Dictionary. We infer from this that a defendant’s mental state in committing an aggravated assault, whether exhibiting “depraved heart” recklessness or “mere” recklessness, is not dispositive of whether the aggravated assault falls within or outside the plain, ordinary meaning of the enumerated offense of aggravated assault.

Of course, what the court refers to as a "minor" difference in mental states is the difference between conduct that would be an aggravated assault and conduct that would not. And how can the court infer from LaFave's and Black's silence on this point that mental state doesn't matter? Moreover, the MPC, LaFave, and Black's are only some of the sources relevant to divining the generic definition of an offense. The best way to do that is to conduct a survey of all the different U.S. jurisdictions to see if a consensus emerges on a generic offense definition (or find a helpful law review article that's already done the spade-work for you). But the court declined to do so: "Determining that this discrepancy in the definition of 'reckless' does not remove the Tennessee statute from the plain, ordinary meaning of aggravated assault, we decline to exhaustively survey all state codes." But that begs the question. How can you know what the plain, ordinary definition of an offense is until you've consulted the various definitions that states have actually adopted?

Still, that's where we are right now. Structure your arguments accordingly.