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Texas Assault of Public Servant Not a Crime of Violence

By Shari Allison

United States v. Zuniga-Soto, ___F.3d ___, No. 06-2364 (10th Cir. 2008)A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant?s prior conviction for assault of a public servant under Texas law was not a crime of violence. The Texas statute allows convictions for reckless conduct and, therefore, does not require the active use of physical force as required under ?developing case law? (Leocal) for commission of the crime. USSG Sec. 2L1.2's ?crime of violence? definition is the same as 18 USC Sec. 16, and negligent and reckless mens reas do not satisfy the definition. Nice to get recklessness into the fold. USSG Sec. 2L1.2's ?as an element? provision refers to the elements of the statute underlying the prior conviction, not the facts underlying the prior offense...continue to full post

Full post as published by Tenth Circuit Blog on June 04, 2008 (boomark / email).