United States v. Ossana (2011)

We have not adopted such a broad rule, see United States v. Jones, 574 F.3d 546, 550-51 (8th Cir.2009) (“[T]he Eighth Circuit has not held that crimes with a mens rea of recklessness cannot constitute violent felonies.”), but we have indicated that some assault statutes that include reckless conduct require analysis under the modified categorical approach, see United States v. Ossana, 638 F.3d 895, 901-03 (8th Cir.2011) (declining to find a conviction under an Arizona aggrav…

Assault as defined in section 708.1 can be committed without physical force by committing “any act which is intended to . . . result in physical contact which will be insulting or offensive to another.” Cf. United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (holding that committing assault under Arizona law does not require the use of physical force because it can be committed “with any degree of contact by [k]nowingly touching another person with the intent to . . .…

United States v. Ossana, 638 F.3d 895, 900 (8th Cir.2011) (citing Johnson v. United States, 559 U.S. 133, 139-41 , 130 S.Ct. 1265 , 176 L.Ed.2d 1 (2010)).

In United States v. Ossana, 638 F.3d 895, 897 (8th Cir.2011), we applied Begay to an Arizona statute which criminalized aggravated assault with a deadly weapon or dangerous instrumentality.

In United States v. Ossana, 638 F.3d 895, 897 (8th Cir.2011), we considered an Arizona statute that criminalizes, inter alia, aggravated assault with a deadly weapon or dangerous instrumentality.

See United States v. Giggey (Giggey I), 551 F.3d 27, 40 (1st Cir.2008) (en banc); see also United States v. Giggey (Giggey II), 589 F.3d 38, 41-42 (1st Cir.2009); United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010); United States v. Hughes, 602 F.3d 669, 676 (5th Cir.2010); United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir.2008); United States v. Ossana, 638 F.3d 895, 904 (8th Cir.2011); United States v. Webster, 636 F.3d 916, 919 (8th Cir.2011); Unite…

Although the United States's argument is not without some modicum of analytical force, [11] we conclude it is simply untenable to read manslaughter as set out in application note 1 to § 4B1.2 as encompassing those versions of the crime with a mens rea of recklessness, when this court has unequivocally held that the text of § 4B1.2 only reaches purposeful or intentional behavior. [12] See, e.g., Williams, 559 F.3d at 1148 ; Zuniga-Soto, 527 F.3d at 1124 . "[J]ust as the Supre…

See Taylor v. United States, 495 U.S. 575, 598 (1990); United States v. Ossana, 638 F.3d 895, 899 (8th Cir. 2011).

The “first step” in our analysis “is to determine whether to apply the categorical or modified categorical approach.” United States v. Ossana, 638 F.3d 895, 899 (8th Cir. 2011).

United States v. Schneider, 905 F.3d 1088, 1092 (8th Cir. 2018) (citing United States v. Ossana, 638 F.3d 895, 903 (8th Cir. 2011)).

First, we find no error in the district court’s calculation of the Guidelines range, see United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (this court reviews the district court’s application of Guidelines de novo, and its findings of fact for clear error), as bank robbery is a crime of violence, see United States v. Harper, 869 F.3d 624, 626-27 (8th Cir. 2017) (bank robbery is crime of violence under U.S.S.G. § 4B1.2(a)); United States v. Ossana, 638 F.3d 895, 898 …

The question here is .whether a conviction for battery of a law enforcement officer under Wisconsin Statute § 940.20(2) “necessarily inyolve[s].the ‘use, attempted use, or threatened use of physical force against the person of another.’ ” United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (quoting USSG § 4B1,2(a)(1)).

In that case, the district court may look to certain kinds of record evidence to determine which of these crimes the defendant was convicted of— the so-called “modified categorical approach.” See United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011).

Similarly, in United States v. Ossana, we noted that a state conviction for simple assault would not be a violent felony under Johnson if the statute broadly included touching another person with intent to insult or provoke. 638 F.3d 895, 900 (8th Cir.2011).

United States v. Ossana, 638 F.3d 895, 901 (8th Cir.2011) (citing United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008); United States v. Esparza-Herrera, 557 F.3d 1019, 1024-25 (9th Cir.2009); United States v. McFalls, 592 F.3d 707, 716 (6th Cir.2010)).

See, e.g., Johnson, 587 F.3d at 214 (advocating use of modified categorical approach to examine Shepard-approved documents that might "demonstrate the mens rea to which [defendant] pled guilty”); see also United States v. Espinoza, 733 F.3d 568, 571 (5th Cir.2013); United States v. Johnson, 675 F.3d 1013, 1017-18 (6th Cir.2012) (examining indictment and jury instructions to establish whether defendant was charged and convicted of purposeful or reckless conduct); United State…

Whether we allow the record to be expanded rests “upon the clarity of the issue below and whether we deemed the government’s failure of proof at the initial sentencing to be excusable.” See United States v. Ossana, 638 F.3d 895, 904 (8th Cir.2011) (holding vague objection justified expansion of sentencing record).

See United States v. Giggey (Giggey I), 551 F.3d 27, 40 (1st Cir. 2008) (en banc); see also United States v. Giggey (Giggey II), 589 F.3d 38, 41-42 (1st Cir. 2009); United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010); United States v. Hughes, 602 F.3d 669, 676 (5th Cir. 2010); United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008); United States v. Ossana, 638 F.3d 895, 904 (8th Cir. 2011); United States v. Webster, 636 F.3d 916, 919 (8th Cir. 2011);…

See United States v. Carter, 752 F.3d 8, 17-18 (1st Cir.2014); United States v. Marrero, 743 F.3d 389, 396 (3d Cir.2014); United States v. Espinoza, 733 F.3d 568, 571 (5th Cir.2013); United States v. Johnson, 675 F.3d 1013, 1017-18 (6th Cir.2012) (examining indictment and jury instructions to establish whether defendant was charged and convicted of purposeful or reckless conduct); United States v. Ossana, 638 F.3d 895, 903 (8th Cir.2011); United States v. Clinton, 591 F.3d 9…

See Ossana, 638 F.3d at 900 (explaining a conviction must "necessarily" involve the use, attempted use, or threatened use of physical force to qualify as a crime of violence under the Guidelines).

See United States v. Ossana , 638 F.3d 895 , 899-900 (8th Cir. 2011).

See United States v. Ossana, 638 F.3d 895 , 898 & n.2 (8th Cir. 2011).

See United States v. Ossana, 638 F.3d 895, 904 (8th Cir. 2011).

Accord United States v. Ossana, 638 F.3d 895, 900 (8th Cir.2011) (holding that a conviction under A.R.S. § 13-203(A)(3) “would not qualify as a crime of violence” because “such contact does not qualify as the use of physical force because it is not violent force”) (citing Johnson, 559 U.S. at 138-39 , 130 S.Ct. 1265 ).

See United States v. Ossana, 638 F.3d 895, 903 (8th Cir. 2011) (holding that an Arizona conviction of aggravated assault based on "merely reckless use of a vehicle" was not a "crime of violence"); see also United States v. Hennecke, 590 F.3d 619 , 621 n.2 (8th Cir. 2010) ("[W]e construe the statutory term 'violent felony' and the Guidelines term 'crime of violence' as interchangeable." (citation omitted)).

Rather, the sole issue Mountain presents on appeal is whether “North Dakota aggravated assault can[] qualify as a violent felony under the force clause of 18 U.S.C § 924(e)(2)(B)(i) because the statute covers reckless conduct.” We recently held that “the new rule in Johnson has no nexus to this claim.” Winarkse, 913 F.3d at 768 ; see Johnson 135 S. Ct. at 2563 (“Today’s decision does not call into question . . . the remainder of the Act’s definition of a violent felony,” inc…

See Ossana , 638 F.3d at 899 -900 .

See, e.g., United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (holding that the Arizona simple assault statute, Ariz. Rev.

See United States v. Ossana, 638 F.3d 895 , 900-03 & n. 6 (8th Cir.2011); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir.2012) (following Ossana ), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir.2015) (distinguishing Ossana), cert. denied, — U.S. —, 136 S.Ct. 1451 , 194 L.Ed.2d 556 , 2016 WL 1078975 (2016). 2 There is a rather obvious, and ultimately fatal, flaw to this contention. - Paragra…

See United States v. Ossana, 638 F.3d 895, 903 (8th Cir.2011) (“[I]n applying the modified categorical approach, sentencing courts may not look to factual assertions within federal presen-tence investigation reports—even if the defendant failed to object to the reports— where the source of the information in the reports might have been from a non-judicial source.”).

Accord United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (holding that a conviction under A.R.S. § 13-203(A)(3) “would not qualify as a crime of violence” because “such contact does not qualify as the use of physical force because it is not violent force”) (citing Johnson, 559 U.S. at 138–39).

Accord United States v. Ossana, 638 F.3d 895, 900 (8th Cir.2011) (holding that a conviction under A.R.S. § 13-203(A)(3) “would not qualify as a crime of violence” because “such contact does not qualify as the use of physical force because it is not violent force”) (citing Johnson, 559 U.S. at 138-39 , 130 S.Ct. 1265 ).

See United States v. Ossana, 638 F.3d 895, 903 (8th Cir.2011)(holding that an Arizona conviction of aggravated assault based on "merely reckless use of a vehicle” was not a "crime of violence”); see also United States v. Hennecke, 590 F.3d 619 , 621 n. 2 (8th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 78 , 178 L.Ed.2d 50 (2010) ("[W]e construe the statutory term ‘violent felony' and the Guidelines term 'crime of violence’ as interchangeable.”).

See United States v. Ossana, 638 F.3d 895 (8th Cir.2011).