The Ninth Circuit, in the context of a sentencing hearing for illegal re-entry, addressed where Arizona's aggravated assault could qualify as an aggravated felony. While the standards for a crime of violence under the federal sentencing guidelines differ somewhat from the standard for a crime of violence in immigration law, the court made several observations about the statute of conviction at issue that could carry over into an immigration context.
For example, the court noted that a conviction for aggravated assault in Arizona can be based on a mens rea of ordinary recklessness. Under Ninth Circuit case law, that would be insufficient to deem a conviction a crime of violence, which requires intentional or knowing conduct.
The court also observed that a statement by counsel during a plea colloquy regarding the mens rea involved in a particular conviction is not cognizable under the modified categorical approach if the factual admission is not related to an element of the conviction. Because a conviction for aggravated assault in Arizona can be supported by recklessness, there would be no need for defendant to admit to a higher level of intent when pleading. Absent a narrowing language in the plea agreement or charging document that could verify such a higher level of intent, such a statement about intent during a plea colloquy is insufficient to demonstrate that a conviction rested upon the higher level of intent.
The court recognized that its decision is in tension with Third Circuit case law, which allowed for a defendant's factual admissions during a plea colloquy to resolve the issue of what level of intent his conviction rested upon.
This case has strong language that attorneys can use to advocate against a court's consideration of factual admissions during a plea colloquy, if such admissions do not correspond to the specific allegations in a charging document or plea agreement. It may help protect our clients against their unwitting statements that the factual circumstances of their offenses were more severe that necessarily demonstrated by the record of conviction.
The full text of US v. Marcia-Acosta can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/23/13-10475.pdf