Wednesday, October 31, 2012

Procedural Sentence Challenge

Procedural Sentence Challenge

Defendant Jarrod Duran was convicted in district court for possession of a firearm by a convicted felon, after he plead guilty.  United States v. Duran, 11-1308, 2012 WL 4947031, at *1 (10th Cir. 2012).  The district court found that Duran’s previously convicted crime of aggravated assault in Texas was a crime of violence and sentenced him to 41 months.  Id.  Duran, on appeal, challenges his sentence, arguing that his assault conviction was not a crime of violence.  Id.

The Court of Appeals for the 10th Circuit agreed with Duran.  Id.  The court reasoned that only crimes with a mens rea of intent or purpose may qualify as crimes of violence.  Id.  at *3.  Under Texas law, “[T]he elements of aggravated assault are 1) the defendant 2) intentionally, knowingly or recklessly 3) caused bodily injury to another and 4) used a deadly weapon.”  Id. at *4.  Thus, the court determined that “aggravated assault under Texas law could be committed with a reckless state of mind.”  Id. at *5.  Therefore, the court remanded Duran’s sentencing because the crime of aggravated assault under Texas law is not a categorical crime of violence.  Id.


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