United States v. Gomez–Hernandez

• Decision Date: 31 May 2012
• Docket Number: No. 10–10441.,10–10441.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Miguel Angel GOMEZ–HERNANDEZ, Defendant–Appellant.

680 F.3d 1171

12 Cal. Daily Op. Serv. 5911

2012 Daily Journal D.A.R. 7202

UNITED STATES of America, Plaintiff–Appellee,

v.Miguel Angel GOMEZ–HERNANDEZ, Defendant–Appellant.

No. 10–10441.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 14, 2012.

Filed May 31, 2012.

Robert H. Sigal, Esq., Tucson, AZ, for the defendant-appellant.

Kyle J. Healey, Assistant United States Attorney, United States Attorney's Office, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. 4:09–cr–02558–RCC–JJM–1.

Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

Miguel Angel Gomez–Hernandez (“Gomez–Hernandez”) appeals the forty-one-month sentence imposed by the district court following his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). He challenges the district court's determination that his prior Arizona state court conviction for attempted aggravated assault is a crime of violence, and the resulting sixteen-level sentencing enhancement under the U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii).¹

Gomez–Hernandez's principal contention on appeal is that his attempted aggravated assault conviction is not a crime of violence because completed aggravated assault under Arizona law encompasses a lesser mens rea than the generic definition of aggravated assault (ordinary recklessness rather than extreme indifference recklessness). But he was convicted of attempted aggravated assault and, under Arizona law, attempted aggravated assault cannot be based on this lesser mens rea. In essence, Gomez–Hernandez would have us ignore his crime of conviction and, instead, consider each statute underlying his conviction in isolation.

The Supreme Court has rejected such a hyper-formalistic approach. The purpose of comparing the statute of conviction to the generic offense is to determine whether a defendant's prior conviction justifies stricter consequences under the Sentencing Guidelines, such as the sixteen-level sentencing enhancement imposed here. Thus, the Court has been clear that this analysis should be conducted in the context of the defendant's actual crime of conviction. See James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (applying approach established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

Here, we have no doubt that Gomez–Hernandez's conviction for attempted aggravated assault rested on the elements of generic attempted aggravated assault. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I

Gomez–Hernandez was born in Mexico in 1978 and moved to the United States with his family when he was 13 years old. On September 10, 2001, Gomez–Hernandez was indicted for aggravated assault and attempted aggravated assault in the Arizona Superior Court for Maricopa County. The indictment alleged that Gomez–Hernandez, “using a carpet knife/razor, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused a physical injury to A.R., in violation of [Ariz.Rev.Stat.] §§ 13–3601(A), 13–1204(A)(2), (B), 13–1203(A)(1), 13–701, 13–702, 13–702.01 and 13–801.” It further alleged that Gomez–Hernandez, “using a carpet knife/razor, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly attempted to cause a physical injury to G.R., in violation of [Ariz.Rev.Stat.] §§ 13–1001, 13–1204(A)(2), (B), 13–1203(A)(1), 13–701, 13–702, 13–702.01 and 13–801.” Both offenses were charged as “dangerous” felonies involving “the discharge, use, or threatening exhibition of a carpet knife/razor, a deadly weapon or dangerous instrument, and/or the intentional or knowing infliction of serious physical injury upon [the named victim], in violation of [Ariz.Rev.Stat.] § 13–604(P).”

On October 31, 2001, Gomez–Hernandez pled guilty to aggravated assault and attempted aggravated assault as charged in the indictment. At the plea colloquy, Gomez–Hernandez testified briefly regarding the facts underlying the charges:

THE COURT: [W]hat occurred with respect to Count 1 [aggravated assault]?

THE DEFENDANT: Well, one day I was drunk and I cut her with a knife in her stomach.

THE COURT: And who is she?

THE DEFENDANT: My—she was—well, we were together; the mother of my children.

THE COURT: And what happened with regards to Count 2, the attempted aggravated assault ...?

THE DEFENDANT: I pointed—I pointed a knife at my sister-in-law.

[DEFENSE COUNSEL]: Thereby placing them in reasonable apprehension of physical injury.

THE COURT: These were all during the same incident?

THE DEFENDANT: Yes, Your Honor.²

Gomez–Hernandez was sentenced to seven-and-a-half years on the aggravated assault count and six years on the attempted aggravated assault count, both to run concurrently. He was deported to Mexico on February 28, 2008, following the completion of his sentence.

On October 22, 2009, the U.S. Border Patrol apprehended Gomez–Hernandez near Douglas, Arizona. He was indicted and pled guilty to one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). Over his objection, the district court imposed a forty-one-month sentence based, in part, on a sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(ii) for his previous deportation following the 2001 Arizona conviction.³

The district court allowed Gomez–Hernandez to enter into a conditional plea of guilty permitting this appeal of the sixteen-level enhancement. Gomez–Hernandez timely appealed.

II

We review de novo a district court's determination that a prior conviction qualifies as a crime of violence. United States v. Rodriguez–Guzman, 506 F.3d 738, 740–41 (9th Cir.2007). The Sentencing Guidelines provide for a sixteen-level enhancement for a defendant convicted under 8 U.S.C. § 1326, “[i]f the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence.” USSG § 2L1.2(b)(1)(A)(ii). Aggravated assault is specifically enumerated in the Application Note to Guideline § 2L1.2 as a crime of violence, seeUSSG § 2L1.2 cmt. n. 1(B)(iii), as is attempting to commit aggravated assault, seeUSSG § 2L1.2 cmt. n. 5.

We apply the approach set forth in Taylor to determine whether Gomez–Hernandez's prior conviction for attempted aggravated assault is a crime of violence under the Sentencing Guidelines. See Esparza–Herrera, 557 F.3d at 1024–25. Under the categorical approach, “federal courts do not examine the facts underlying the prior offense, but look only to the fact of conviction and the statutory definition of the prior offense and compare it to the generic definition of the offense.” United States v. Espinoza–Cano, 456 F.3d 1126, 1131 (9th Cir.2006) (internal quotation marks omitted); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143(explaining that the categorical approach “generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense”).

If the statutory definition of the prior offense is not a categorical match, we apply the modified categorical approach. We examine “limited categories of documents to determine whether the facts underlying the conviction necessarily establish that the defendant committed the generic offense.” Espinoza–Cano, 456 F.3d at 1131 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). “[W]hen the conviction in question is based on a guilty plea, we have approved the sentencing court's consideration of the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment....” Id. (internal quotation marks omitted).

Two related Taylor analyses are required to determine whether a prior conviction for an attempt offense qualifies as a crime of violence. See United States v. Saavedra–Velazquez, 578 F.3d 1103, 1106–07 (9th Cir.2009); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir.2008). Specifically, we must determine whether the defendant's conviction establishes that he committed the elements of the generic definition of “attempt” and that the underlying offense he attempted meets the generic definition of that offense. See Saavedra–Velazquez, 578 F.3d at 1106–07;Rebilas, 527 F.3d at 787.

III

Gomez–Hernandez challenges the district court's determination that his prior Arizona conviction for attempted aggravated assault constitutes a crime of violence under the Guidelines. We conduct the two Taylor analyses: first, we ask whether Gomez–Hernandez's attempted aggravated assault conviction corresponds to the generic definition of attempt; second, we ask whether the offense he attempted corresponds to the generic definition of aggravated assault.

A

We have previously determined that Arizona's attempt statute and the generic definition of “attempt” are, in general, coextensive. See United States v. Taylor, 529 F.3d 1232, 1237–38 (9th Cir.2008). Although our prior analysis was based on Arizona case law as of June 2008, see id., we are not aware of any subsequent Arizona decision deviating from the generic definition of attempt. See id. (“At common law an attempt was defined as the specific intent to engage in criminal conduct and an overt act which is a substantial step towards committing the crime.” (internal quotation marks and alterations omitted)). Thus, we are satisfied that Gomez–Hernandez was convicted of the generic elements of attempt.

B

We turn to the second Taylor inquiry: was Gomez–Hernandez convicted of attempting to commit the elements of generic aggravated assault (i.e., the underlying offense)? Gomez–Hernandez argues that he was not because (1) completed aggravated assault under Arizona law encompasses a lesser mens rea than generic aggravated assault; and (2) Arizona's aggravated assault ...