Yet Another COV Circuit Split: Ninth Disagrees with Fifth Over Mens Rea for Generic Aggravated Assault

A solid majority of U.S. jurisdictions, as well as the Model Penal Code, define aggravated assault to require a mens rea of intent, knowledge, or some form of heightened recklessness (such as recklessness under circumstances manifesting extreme indifference to the value of human life). "Simple" recklessness won't do. Nevertheless, in United States v. Mungia-Portillo, the Fifth Circuit held that generic "aggravated assault," for purposes of guideline §2L1.2's 16-level COV enhancement, requires a minimum mens rea of just simple recklessness. Eschewing the traditional Taylor/Shepard categorical approach in favor of an ill-defined "common-sense approach," Mungia-Portillo concluded that any difference between "simple" recklessness and "heightened" recklessness is minor enough not to matter. In so holding, Mungia-Portillo "decline[d] to exhaustively survey all state codes[,]" instead relying on the Model Penal Code, LaFave, and Black's law dictionary.

Turns out there are now two circuit splits involving this issue. The Ninth Circuit has previously criticized---and refused to follow---the Fifth Circuit's "common-sense" departure from Taylor/Shepard. And just last week, in United States v. Esparza-Herrera,* it disagreed with Mungia-Portillo's other holdings. Expanding the inquiry beyond secondary sources to include a survey of actual aggravated assault statutes across the country, Esparza-Herrera concluded both that 1) a solid majority of U.S. jurisdictions "require, at a minimum, a heightened form of recklessness to sustain an aggravated assault conviction[,]" and 2) "ordinary recklessness is a broader mens rea requirement for aggravated assault than is 'recklessness under circumstances manifesting extreme indifference to human life.'" (For those of y'all keeping track, the aggravated assault statute underlying Esparza's prior conviction was Arizona Revised Statute § 13-1204(A)(11).)

Intriguingly, all three judges on the panel joined an opinion concurring in the per curiam, and pining for the Fifth Circuit's approach!

[I]n this esoteric sphere of legal analysis our circuit precedent in substance says that common sense is out and instead we must canvass and assess what the majority of jurisdictions have concluded. I might disagree with the conclusion of the Fifth Circuit in Mungia-Portillo to the extent it suggests that there is no relevant difference between extreme indifference and ordinary recklessness, but I don’t think that such a difference should be very important in assessing whether there has been an aggravated assault. I would prefer to use the Fifth Circuit’s “common sense” approach, rather than trying to assess the standard jurisdiction by jurisdiction. What is important to me is whether the Arizona statute to which Esparza-Herrera pled guilty shows an offense sufficiently serious that we should consider it a “crime of violence” warranting a higher sentence under the advisory Guidelines in the interest of protecting the community. Using a common sense approach, I would have no problem concluding that Esparza-Herrera’s guilty plea . . . yielded a prior conviction of a crime of violence for purposes of calculating the range of the advisory Sentencing Guidelines, even if supported only by the recklessness required under the statute to which he pled guilty.

As Steve Kalar observes in his analysis of Esparza-Herrera at the Ninth Circuit Blog, the concurrence "seems to be gunning for en banc or Supreme Court review of the Ninth’s rule."

*United States v. Esparza-Herrera, No. 07-30490 (9th Cir. Feb. 25, 2009) (per curiam; Gould, Tallman, Callahan, concurring)