CARL E. STEWART, Chief Judge:
The Armed Career Criminal Act ("ACCA") imposes a mandatory 15-year term of imprisonment upon convicted felons who unlawfully possess a firearm and have three or more prior convictions for committing violent felonies. 18 U.S.C. § 924(e)(1) (2006). The question before this court is whether a violation of Texas Penal Code § 22.01 constitutes a violent felony as defined by the ACCA. The district court held that it does. We AFFIRM.
Daniel Raul Espinoza pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). When Espinoza pleaded guilty, he acknowledged that he had three prior felony convictions.
Espinoza objected to the district court's application of the ACCA to his sentence. He claimed that one of his prior convictions, felony assault involving family violence, did not qualify as a "violent felony" as defined by the ACCA. During the sentencing hearing, Espinoza argued that the judgment in the assault case did not cite the specific subsection of the Texas Penal Code for which he was convicted and, thus, the court could not presume that he was convicted under a certain subsection or that he engaged in all possible mens rea under the statute. He contended that the district court should presume that he used the least culpable means of committing the offense and conclude that the statute did not meet the definition of a violent felony under 18 U.S.C. § 924(e).
The Government responded that Espinoza's plea colloquy reflected that he pleaded guilty to an assault, enhanced by a prior assault as charged in the indictment and judgment, and that the admission of the occurrence of a bodily injury reflected intentional conduct that was violent in nature. The district court agreed and determined that Espinoza's felony assault involving family violence conviction was intentional and violent. The district court relied upon evidence outside the indictment and judgment to reach its conclusion. The district court noted that Espinoza had broken down a door and threatened to kill a woman by strangulation. Applying the ACCA, the district court sentenced Espinoza to 188 months' imprisonment to be followed by a 5-year term of supervised release. Espinoza timely filed a notice of appeal.
"Where a defendant objects at sentencing, we review the district court's findings of fact for clear error and its conclusions of law de novo. The sentence is reviewed for reasonableness." See United States v. Anderson, 559 F.3d 348, 354 (5th Cir.2009).
On appeal, Espinoza argues that his prior felony assault conviction was not a violent felony as defined by the ACCA because the record does not establish that he committed the offense with a mens rea greater than recklessness. Espinoza emphasizes that the Government drafted his indictment in the conjunctive, claiming that he intentionally, knowingly, and recklessly assaulted the victim. As a result, there was never a finding as to his specific mens rea and the court should presume that he committed the offense recklessly. Espinoza asserts that an offense that is committed recklessly is not a violent felony under the ACCA. Citing Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), Espinoza contends that a reckless offense lacks the deliberate, purposeful, criminality of the ACCA's enumerated offenses or similar crimes under the residual clause of § 924(e)(2)(B)(ii). We do not agree.
Congress enacted the ACCA to ensure "(1) that violent, dangerous recidivists would be subject to enhanced penalties
Generally we follow the categorical approach to determine whether a prior conviction qualifies as a violent felony for the purposes of the ACCA. See United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.2005) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under this approach, we look to the relevant statute and, in certain circumstances, to the conduct alleged in the charging documents, to determine whether the prior conviction qualifies as a violent felony. See Taylor, 495 U.S. at 576, 110 S.Ct. 2143. However, when a statute can be violated in a way that constitutes a violent felony and in a way that does not, we review other judicial documents to make the determination. See United States v. Garcia-Arellano, 522 F.3d 477, 479-80 (5th Cir.2008). The indictment, judicial confession, and judgment are "within the scope of documents a court may consider under Shepard." Id. at 480-81 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In an effort to remedy the ambiguity surrounding Espinoza's mens rea, we review the judicial documents available to us on appeal. The indictment supporting the conviction at issue reads as follows:
(Emphasis in original).
The Shepard documentation for Espinoza's conviction contained a fully-executed judicial confession where Espinoza admitted the following:
The state court's findings of fact indicate that Espinoza "admitted all of the allegations charged in the indictment or information on file in this cause and has, in open court, confessed his or her guilt to the offense charged."
The indictment and relevant judicial documents do not provide conclusive evidence as to the mens rea we should associate with Espinoza's prior felony conviction. Espinoza's adoption of the judicial confession is simply a blanket statement admitting that he committed the assault with every listed category of mental culpability. This does not support a finding that Espinoza committed the act intentionally and knowingly and not recklessly. Therefore, we apply the "least culpable means" analysis to this case and assume that Espinoza's offense was committed recklessly. See United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004) ("If an indictment is silent as to the offender's actual conduct, we must proceed under the assumption that his conduct constituted the least culpable act satisfying the count of conviction." (citation omitted)).
We now focus our inquiry on whether violating Tex. Penal Code § 22.01 with a culpable mens rea of recklessness qualifies as a violent felony under the residual clause of the ACCA.
The Supreme Court's decision in Begay suggests that, under these facts, we should consider whether the offense in question involved "purposeful, violent and aggressive" conduct. See Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (citation omitted). In Begay, the Court held that a violation of New Mexico's driving under the influence ("DUI") statute is not a violent felony under the ACCA. Id. at 148, 128 S.Ct. 1581. The Court reasoned that DUI differs from the enumerated offenses in that those crimes typically involve "purposeful, violent and aggressive" conduct, whereas DUI statutes typically do not. Id. The Court stated that the enumerated offenses "should [be] read [] as limiting the crimes the [residual] clause [] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Id. at 143, 128 S.Ct. 1581. (citation omitted).
Sykes clarified the Court's holding in Begay and provided instruction on how its reasoning should be applied.
Here, we conclude that Espinoza's reckless assault conviction qualifies as a violent felony under the ACCA pursuant to Begay's "purposeful, violent and aggressive" standard as guided by the Supreme Court's reasoning in Sykes.
Espinoza was convicted of violating Tex. Penal Code § 22.01(a) which criminalizes, inter alia, recklessly causing bodily injury to another. See Thomas v. State, 303 S.W.3d 331, 332 (Tex.Ct.App. — El Paso 2009, no pet.) (defining the elements of Tex. Penal Code § 22.01(a)(1)). The offense was enhanced to a third-degree felony because Espinoza was previously convicted under the same statute. See Tex. Penal Code § 22.01(b)(2)(a). According to the Texas Penal Code:
Tex. Penal Code § 6.03.
Pursuant to Sykes, we analogize the statute in question with one of the crimes enumerated in the ACCA. Here, Tex. Penal Code § 22.01 is most analogous to the ACCA-enumerated offense of burglary because reckless assault "can end in confrontation leading to violence." Sykes, 131 S.Ct. at 2273. A violation under § 22.01, whether committed knowingly, intentionally or recklessly, requires proof that the defendant caused bodily injury to another person. The elements of § 22.01 indicate that a violation of this statute requires more than a "risk" of physical harm, but rather must result in actual physical harm.
A conviction under § 22.01(a)(1) can be achieved if, and only if, a violent, physical confrontation between at least two people leads to bodily injury. Reckless assault in Texas contemplates a scenario where a defendant appreciates the risk that his conduct may result in bodily injury to another, but "consciously disregards" that risk and harms someone as a result. In Texas, "[r]eckless conduct involves conscious risk creation — that is, the actor was aware of the risk surrounding his conduct or the result of his conduct, but consciously disregarded that risk." See Cleburn v. State, 138 S.W.3d 542, 545 (Tex.Ct.App. — Houston [14th Dist.] 2004, pet. ref'd) (citation omitted). Sykes dictates that the ACCA applies to crimes that are "similar in degree of danger" to one of the enumerated offenses. Because reckless assault creates, at a minimum, a similar degree of danger as burglary, we hold that it is a violent felony.
Begay aimed to limit the application of the ACCA to crimes that involve conduct that is "purposeful, violent and aggressive" in nature. See Begay, 553 U.S. at 137, 128 S.Ct. 1581. Reckless assault under § 22.01 requires proof that the defendant consciously disregarded a substantial and unjustifiable risk and in doing so, caused bodily injury to another. For the reasons stated above, we hold that a violation of § 22.01 falls squarely within the parameters of the criminal conduct contemplated in Begay.
For the foregoing reasons, we AFFIRM the district court's judgment imposing a sentence of 188 months' imprisonment to be followed by a 5-year term of supervised release.