Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-06-00219-BLW.
Argued and Submitted December 11, 2008 -- Seattle, Washington
Before: Ronald M. Gould, Richard C. Tallman, and Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion; Concurrence by Judge Gould
The United States Government appeals the district court's ruling that Gerardo Esparza-Herrera's prior conviction for aggravated assault under Arizona Revised Statutes ("A.R.S") § 13-1204(A)(11) was not a conviction for a "crime of violence" under section 2L1.2 of the United States Sentencing Guidelines (the "Guidelines"). The district court held that the Arizona statute did not correspond to the generic definition of "aggravated assault" that is enumerated as a "crime of violence" in Guidelines § 2L1.2. As a result, the district court did not apply a 16-level enhancement to Esparza-Herrera's sentence for illegal re-entry into the United States by a deported alien. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), and we affirm.
Gerardo Esparza-Herrera pled guilty in July 2007 to violating 8 U.S.C. 1326(a), which prohibits unauthorized re-entry by a deported alien. Esparza-Herrera's Presentencing Report ("PSR") revealed a 2000 Arizona conviction for aggravated assault, in violation of A.R.S. § 13-1204(A)(11),*fn1 which provides that a person commits aggravated assault when "the person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part." Under Arizona law, a person commits assault by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person." Ariz. Rev. Stat. § 13-1203(A)(1). Esparza-Herrera's indictment alleged that he "intentionally, knowingly or recklessly . . . caused a temporary but substantial disfigurement" to the victim. No other official judicial document forming the record of conviction contained specific information about Esparza-Herrera's conduct.*fn2
The PSR at first concluded that Esparza-Herrera's prior aggravated assault conviction was a conviction for a crime of violence and accordingly recommended a 16-level enhancement to his sentence pursuant to section 2L1.2(b)(1)(A)(ii) of the Guidelines. Esparza-Herrera objected to the PSR's recommendation on the ground that his aggravated assault conviction was not a conviction for a crime of violence. The Probation Department acquiesced, and the revised PSR instead recommended a four-level enhancement for a "conviction for any other felony" as provided by Guidelines § 2L1.2(b)(1)(D). This change reduced Esparza-Herrera's sentencing range from 70-87 months to 21-27 months.
The government challenged the revised PSR, but the district court held that a 16-level enhancement was inappropriate even though the Guidelines specify that aggravated assault is a crime of violence. The district court held that the generic definition of aggravated assault requires at least a heightened version of recklessness, one in which the defendant's conduct manifests "extreme indifference to the value of human life." It held that A.R.S. § 13-1204(A)(11) was defined more broadly than generic aggravated assault because it encompassed "garden-variety" reckless conduct. The district court did not apply the modified categorical approach because the government conceded that the record of conviction contained no other information about Esparza-Herrera's conduct. The court concluded that the "crime of violence" enhancement did not apply because Esparza-Herrera's statute of conviction did not correspond to the generic definition of aggravated assault and was thus not a crime of violence under the Guidelines. The government appealed.
We review a district court's interpretation of the Guidelines de novo. United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008). We also review de novo a district court's ruling that a prior conviction qualifies as a "crime of violence" under Guidelines § 2L1.2. United States v. Cortez-Arias, 403 F.3d 1111, 1114 n.7 (9th Cir. 2005).
Section 2L1.2(b)(1)(A)(ii) of the Guidelines applies a 16-level sentencing enhancement to a defendant convicted under 8 U.S.C. § 1326 when that "defendant previously was deported" after a conviction for a "crime of violence." The only issue on appeal is whether the district court should have applied this enhancement. We use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990), to determine whether a defendant's prior conviction satisfies the Guidelines definition of a crime of violence. United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003). Under this approach the state statute of conviction is "compared with the generic definition of that crime to determine if the defendant's conviction is a crime of violence pursuant to the Sentencing Guidelines." United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005). Ordinarily, when the categorical approach fails we apply the modified categorical approach, which examines "documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime . . . ." United ...