Monday, May 24, 2010

The need to file a timely motion for reconsideration

Reminding the reader that a timely notice of appeal is a jurisdictional requirement in a civil case, the Eleventh Circuit dismissed as untimely an appeal where the motion for reconsideration was filed a week late. It never hurts to check the rules, and if you need a little something to scare you into doing that, check out Green v. DEA, No. 07-15334.

Categorical approach;one type of agg assault not a crime of violence

The Eleventh Circuit addressed yet another "crime of violence" issue under Shepard and Taylor in United States v. Garcia, No. 09-10534. There, in the context of the 16 level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii), the Court found that an Arizona conviction for aggravated assault was not a crime of violence. First, the Court rejected the government's argument that the name of the conviction was determinative: "We . . . hold that the label a state attaches to an offense is not conclusive of whether a prior conviction qualifies as an enumerated offense under §2L1.2." Second, after considering opinions from the 5th, 6th, and 9th Circuits, the Court addressed the elements that a generic aggravated assault must contain -- it "involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon." The Arizona statue of conviction did not require either serious bodily injury or the use of deadly weapon; it only required a simple assault with an aggravating factor that the victim was a law enforcement officer. Third, as for the "use of physical force" consideration under §2L1.2, the Court determined that the Arizona statute's mens rea could be satisfied by recklessness, which was insufficient.