Romay-Cruz

MEMORANDUM *

Romay-Cruz is correct that his Washington conviction for third degree assault is not categorically 1 a “crime of violence.” 2 The serious issue here is whether “the statutory definition of the crime, charging *260 document, written plea agreement, transcript of plea colloquy or any explicit factual finding by the trial judge to which the defendant assented” 3 establish that Romay-Cruz did in fact commit a “crime of violence.”

Although he was sentenced on the basis of facts that would make his crime a crime of violence, he did not stipulate to or admit those facts. By checking the box on the printed form that allowed the court to consider the affidavit, Romay-Cruz was not stipulating that the facts were true, but merely that the Superior Court could use the prosecution’s allegations as a basis for accepting the plea. This conclusion is the only one possible in light of RomayCruz’s concurrent statement that he was drunk and does not remember the incident. If he really was drunk and could not remember, then Romay-Cruz could not truthfully say that the facts were as the officer said, just that he was in no position to claim otherwise.

The Supreme Court dealt with a…

I respectfully dissent. The record shows that Mr. Romay-Cruz expressly stipulated that the state trial court could consider the police officer’s affidavit in determining whether there was a factual basis for his plea of guilty. The arresting officer alleged in his affidavit that Mr. Romay-Cruz “took a fighting stance and immediately took a swing with his right fist striking the center of my flashlight that I held in my hand.”

Appellant argued in his opening brief that he was not guilty of third degree assault because “[t]he facts in the affidavit do not clearly establish that Mr. RomayCruz plead guilty to all the requisite facts necessary to establish that he applied force or actual violence to body of another.” Appellant’s Opening Br. at 15 (emphasis added). In its responsive brief, the Government adopted the district court’s conclusion that “taking a swing with his right fist, whether it struck him [the police officer] or didn’t, and happened to hit his flashlight, would be within the crime of violence.”

For the first time, in his reply brief, Appellant refers to

Appellant’s Reply Br. at 7.

The argument, that Mr. Romay-Cruz was drunk and did not remember the incident, seized…