U.S. v. Esparza-Herrera

• Decision Date: 25 February 2009
• Docket Number: No. 07-30490.,07-30490.
• Citation: 557 F.3d 1019
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gerardo ESPARZA-HERRERA, a.k.a. Omar Brabo Beltran, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

557 F.3d 1019

UNITED STATES of America, Plaintiff-Appellant, v. Gerardo ESPARZA-HERRERA, a.k.a. Omar Brabo Beltran, Defendant-Appellee.

No. 07-30490.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2008.

Filed February 25, 2009.

David E. Hollar, United States Department of Justice, Washington, DC, for the plaintiff-appellant.

Thomas Monaghan, Federal Public Defender Services of Idaho, Biose, ID, for the defendant-appellee.

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.

Before: RONALD M. GOULD, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge GOULD.

PER CURIAM:

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 reentry 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.

I

Gerardo Esparza-Herrera pled guilty in July 2007 to violating 8 U.S.C. 1326(a), which prohibits unauthorized reentry 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),¹ 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.²

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.

II

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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 States v. Ladwig, 432 F.3d 1001, 1003 n. 5 (9th Cir.2005) (internal citation omitted). Here, however, the government concedes that the record of conviction is insufficient to satisfy the modified categorical approach. Hence we are concerned solely with the application of the categorical approach.

The Application Note to Guidelines § 2L1.2 defines a "crime of violence" as any one of several enumerated offenses, including "aggravated assault." U.S.S.G. § 2L1.2 n. 1(b)(iii); see also United States v. Rising Sun, 522 F.3d 989, 996 (9th Cir.2008) (stating that application notes are generally "treated as authoritative interpretations of the Sentencing Guidelines").³ "When an offense is specifically enumerated by the Application Notes as a `crime of violence,' we have consistently drawn the conclusion that the offense is a per se crime of violence under the Guidelines." United States v. Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir.2007). Therefore, to determine whether Esparza-Herrera's prior aggravated assault conviction was a conviction for a crime of violence, we must decide if A.R.S. § 13-1204(A)(11) corresponds to the Guidelines definition of aggravated assault.

Esparza-Herrera argues that his statute of conviction is broader than the generic definition of aggravated assault because Arizona law permits an aggravated assault conviction for ordinary recklessness while the Model Penal Code requires a heightened form of recklessness. In Arizona a person commits assault by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person." Ariz.Rev. Stat. § 13-1203(A)(1) (emphasis added). Both Arizona and the Model Penal Code define "recklessly" similarly, but under the Model Penal Code reckless behavior can sustain a conviction for "simple assault" only. See MODEL PENAL CODE §§ 2.02 (defining "recklessly"), 211.1(1)(A) (defining "simple assault"). The Model Penal Code provides that aggravated assault occurs only when a person acts purposefully, knowingly, or "recklessly under circumstances manifesting extreme indifference to the value of human life." MODEL PENAL CODE § 211.1(2)(a). Esparza-Herrera argues that the lack of an "extreme indifference" requirement in A.R.S. § 13-1204(A)(11) makes his statute of conviction substantially broader than aggravated assault under the Model Penal Code and, consequently, under the Guidelines.

The government counters that we should follow the Fifth Circuit, which held that a state statute permitting a conviction for aggravated assault on ordinary reckless conduct can still qualify as "aggravated assault" under the Guidelines. United States v. Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir.2007). The Fifth Circuit held that the absence of an "extreme indifference" requirement in a Tennessee statute was "not dispositive of whether the aggravated assault falls within or outside the plain, ordinary meaning of the enumerated offense of aggravated assault." Id. at 817. The court concluded that "the difference in the definition of `reckless' between the Tennessee statute and the Model Penal Code does not remove the Tennessee statute from the family of offenses commonly known as `aggravated assault.'" Id. (internal citations omitted).

The Fifth Circuit's reasoning is not without insight but is foreclosed by our precedent. The Fifth Circuit uses the "common sense approach" to determine whether a prior offense constitutes a crime of violence under Guidelines § 2L1.2(b)(1)(A)(ii) when the prior offense is an enumerated offense in the Application Notes. See United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006). Were we to follow this approach, we would determine whether A.R.S. § 13-1204(A)(11) "is equivalent to the enumerated offense of aggravated assault as that term is understood in its ordinary, contemporary, and common meaning." Mungia-Portillo, 484 F.3d at 816 (internal citations omitted).

We do not use the common sense approach. Instead, we must apply the categorical approach "even when the object offense is enumerated as a per se crime of violence under the Guidelines." Rodriguez-Guzman, 506 F.3d at 744. In applying the categorical approach...