GERARD E. LYNCH, Circuit Judge:
Defendant-appellant Javier Moreno appeals from judgments entered in the United States District Court for the District of Connecticut (Warren W. Eginton, Judge), following his plea of guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), and his admission that he had violated a condition of a previously-imposed term of supervised release. The district court sentenced Moreno principally to 33 months' imprisonment on the illegal reentry conviction, and 18 months' imprisonment for the violation of supervised release, to be served consecutively.
We conclude that it did not, and therefore remand to the district court for vacatur of the judgment and resentencing.
On January 16, 2007, Moreno pled guilty to attempted assault in the second degree in violation of Conn. Gen.Stat. § 53a-60. Neither the description of the charge at the plea colloquy nor the judgment of conviction
G.A. 2-3. Neither the court nor any party said anything more about the offense conduct during the plea colloquy. The state court subsequently concluded that there was a factual basis for the plea, accepted the plea, and sentenced Moreno to three years' incarceration, suspended, and three years' probation.
Before the district court in the present case, Moreno repeatedly argued, both in writing, and orally, that the plea colloquy did not contain an admission by Moreno that could be used to determine whether he violated one of the subsections of the Connecticut statute that constitute aggravated felonies. After rejecting Moreno's objection, the district court applied the aggravated felony enhancement, calculated the guideline sentencing recommendation as 33 to 41 months, and sentenced Moreno to 33 months' imprisonment, to be followed by an additional 18 month consecutive term for the violation of supervised release.
On appeal, Moreno argues that the district court erred in relying on the statements made by the Connecticut prosecutor during the plea colloquy to find, under the modified categorical approach, that Moreno had been convicted of an aggravated felony. In addition to arguing that such reliance was appropriate, the government argues that we may affirm Moreno's sentence because his prior conviction was categorically an aggravated felony, insofar as attempted second-degree assault under Connecticut law requires an intentional assault.
"We review de novo all questions of law relating to the district court's application of a federal sentence enhancement." United States v. Beardsley, 691 F.3d 252, 257 (2d Cir.2012). While we "apply clear
U.S.S.G. § 2L1.2(b)(1)(C) provides for an eight-level increase to the base offense level for illegal reentry if the defendant was previously convicted of an aggravated felony. Under § 2L1.2(b)(1)(D), any other previous felony conviction generates only a four-level increase. The commentary for § 2L1.2(b)(1)(C) states that the term "aggravated felony" carries the same meaning as it does in 8 U.S.C. § 1101(a)(43), which provides that "aggravated felony" includes a "crime of violence (as defined in [18 U.S.C. § 16] ...) for which the term of imprisonment [is] at least one year." U.S.S.G. § 2L1.2(b)(1)(C) cmt. n. 1(B)(3)(A). Section 16 in turn defines a "crime of violence" as, in relevant part, "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). Moreno argues that his Connecticut conviction for attempted assault in the second degree does not qualify as a "crime of violence" within the meaning of § 16(a), and that the district court accordingly erred in applying an eight-level increase to his offense level rather than a four-level increase that applies to other felony convictions.
In determining whether a prior conviction can serve as a predicate offense for a federal sentence enhancement, courts may apply either a categorical or modified categorical approach. Beardsley, 691 F.3d at 259. Under the categorical approach, "we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). By contrast, under the modified categorical approach, courts "may consider facts underlying the prior conviction," Beardsley, 691 F.3d at 259, "to determine which alternative element in a divisible statute formed the basis of the defendant's conviction," Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2293, 186 L.Ed.2d 438 (2013). However, as discussed in more detail below, courts may only take into account facts that can be determined based on specific categories of "adequate judicial record evidence," Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Accordingly, the modified categorical approach requires a two-step process: "first, we determine if the statute is divisible, such that some categories of proscribed conduct render an [enhancement appropriate] and some do not; second, we consult the record of conviction to ascertain the category of conduct of which the [defendant] was convicted." Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88-89 (2d Cir.2009) (internal quotation marks omitted).
Conn. Gen.Stat. § 53a-60. As both parties acknowledge, Conn. Gen.Stat. § 53a-60 is divisible, defining several distinct offenses, most of which would constitute "crimes of violence" within the meaning of 18 U.S.C. § 16(a), but at least one of which would not.
When applying the modified categorical approach, courts may consider the facts underlying the prior conviction to determine to which section of a divisible statute the defendant pled. However, that inquiry is narrowly circumscribed, and is limited, in the context of guilty pleas, to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254.
Shepard makes clear that factual admissions and judicial findings in the context of a guilty plea must be adopted or confirmed by the defendant to be considered in determining the nature of the defendant's crime by the modified categorical approach. See id. at 16, 125 S.Ct. 1254 (allowing courts to examine "any explicit factual finding by the trial judge to which the defendant assented") (emphasis added); id. at 20, 125 S.Ct. 1254 (explaining that "adequate judicial record evidence" may include "the statement of factual basis for the charge ... shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea") (emphasis added); see also United States
Here, the district court determined that Moreno's offense was a crime of violence by looking to the prosecutor's account of the facts during the plea proceeding. However, Moreno was never asked to confirm the factual basis for his plea. Nor can the guilty plea itself be taken to have adopted the prosecutor's statements, since Moreno pled guilty to violating § 53a-60 (without specifying any particular subsection) before the prosecutor's recitation of the offense conduct. At no point did Moreno allocute to any facts about the offense. After the prosecutor's account, Moreno was not asked to, and did not, assent to the prosecutor's assertions; he merely remained silent.
The government concedes, as it must, that the only description of the offense conduct at the plea colloquy came from the prosecutor, and therefore was not a "colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant." Shepard, 544 U.S. at 26, 125 S.Ct. 1254. It argues, however, that the plea colloquy constitutes a "comparable judicial record" that may be considered because "[n]othing about the prosecutor's factual basis suggests a mens rea of recklessness," Gov't Br. 32, and the state court later found there was a factual basis for the plea. But the government's quotation from Shepard is truncated; the full statement by the Supreme Court was that the inquiry under the modified categorical approach is limited, in the case of a guilty plea, to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (emphasis added).
The government argues that, even if reliance on the plea colloquy was misplaced, we may still affirm Moreno's sentence because his conviction for attempted second-degree assault was categorically a crime of violence since the only provision of the Connecticut statute that is not categorically an aggravated felony is Conn. Gen.Stat. § 53a-60(a)(3), which criminalizes reckless conduct, and it is legally impossible to attempt to commit reckless assault. Moreno does not dispute that attempted reckless assault is a legally impossible crime in Connecticut. Under Connecticut law, "[a] person acts `recklessly' with respect to a result ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Conn. Gen.Stat. § 53a-3(13). Attempt occurs when a person "[i]ntentionally engages in conduct which would constitute the crime" or "intentionally does or omits to do anything which ... is an act or omission constituting a substantial step" in the crime. Id. § 53a-49(a). Because it is legally impossible to intend to commit a crime that is defined, as § 53a-60(a)(3) is, by an unintended result, one cannot attempt to commit reckless second degree assault under Connecticut law. Cf. Gill v. I.N.S., 420 F.3d 82, 91 (2d Cir.2005) (discussing attempted reckless assault under New York law); State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (noting that it is logically impossible under Connecticut law to attempt to commit involuntary manslaughter as involuntary manslaughter is defined by an unintended result).
As we have previously recognized, however, pleading guilty to impossible crimes may make "practical sense in terms of reaching a contextually appropriate sentence or sentencing range." Gill, 420 F.3d at 91. Thus, while the crime of attempted reckless assault may not exist in the abstract, there is no infirmity in a plea to attempted reckless assault. We cannot infer any mental state from a plea to attempted recklessness, see id., and accordingly cannot presume, on the basis of the plea alone, that Moreno pled guilty to one of the sections of the Connecticut statute that criminalizes intentional assault. The foregoing analysis is not altered by the fact that Moreno pled guilty to § 53a-60 generally rather than to § 53a-60(a)(3); Moreno's plea does not exclude the possibility that he committed a reckless assault, and pled guilty to attempted assault, to reduce his sentence exposure as part of a plea bargain.
As there is no evidence in the record of conviction that would enable us to determine which section of the divisible Connecticut statute Moreno pled guilty to, it
For the foregoing reasons, the case is REMANDED to the district court for vacatur of the judgment and resentencing consistent with this opinion.