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Does a Defendant’s Mens Rea (Mental Intent) in a State Charge Count when Applying Sentencing Guidelines for a Subsequent Federal Conviction? – Las Vegas Criminal Defense Attorney Andre Lagomarsino

Mens rea: The intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.

Proving its existence is essential to proving a defendant is guilty of a crime, though in and of itself alone, it is not enough to prove the defendant is guilty. However, while it is an element of a criminal act, should a defendant’s “mens rea” in a state conviction be considered in a court’s “crime of violence” analysis when applying a Sentencing Guidelines enhancement? According to a recent Ninth Circuit Court of Appeals case, the answer is

Raul Zamorano-Ponce pled guilty to statutory rape of a child. He was sentence to 12 months in jail. However, halfway into serving his sentence Zamorano-Ponce was released and deported back to Mexico.

In 2011, the U.S. Border Patrol found Zamorano-Ponce in Mexico. Because Zamorano-Ponce could not produce any documentation to establish he had a legal presence in the U.S., he was arrested, and then indicted for “reentry after removal.” After pleading guilty, the Presentence Investigation Report and the government recommended that the court apply the enhancement because Zamorano-Ponce’s prior statutory rape conviction qualified as a “crime of violence” which fell within the generic federal definition of “statutory rape.” Zamorano-Ponce objected. He argued that since the state charge of statutory rape required mens rea, while its federal counterpart did not, he was not technically guilty of federal statutory rape. Therefore, the state charge could not be used to enhance his present federal conviction. Zamorano-Ponce cited Estrada-Espinoza v. Mukasey.

Zamorano-Ponce appealed after the district court held that the start charge could be used to enhance his punishment. The Ninth Circuit Court of Appeals affirmed the district court.

While Estrada-Espinoza v. Mukasey defined the term “sexual abuse of a minor” for the purpose of considering whether a prior conviction constituted an “aggravated felony” under the Immigration and Nationality Act. The issue of mens rea is not addressed.” US v. Zamorano-Ponce.

This commentary is for educational purposes. If you would like to be represented by an attorney in the Las Vegas law office of Lagomarsino Law, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.