United States v. Garcia-Jimenez

• Decision Date: 19 November 2015
• Docket Number: No. 14–10484.,14–10484.
• Citation: 807 F.3d 1079
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Alberto GARCIA–JIMENEZ, aka Nelih Alexis Miranda, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

807 F.3d 1079

UNITED STATES of America, Plaintiff–Appellee,

v.Alberto GARCIA–JIMENEZ, aka Nelih Alexis Miranda, Defendant–Appellant.

No. 14–10484.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 15, 2015.

Filed Nov. 19, 2015.

Davina T. Chen (argued), Glendale, CA, for Defendant–Appellant.

Lawrence C. Lee (argued) and Lauren G. Labuff, Assistant United States Attorneys, John S. Leonardo, United States Attorney, Robert L. Miskell, Appellate Chief, United States Attorney's Office, District of Arizona, Tucson, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:14–cr–00973–CKJ–DTF–1.

Before: WILLIAM A. FLETCHER, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Alberto Garcia–Jimenez pled guilty to illegal reentry into the United States in violation of 8 U.S.C. § 1326. At sentencing, the district court increased Garcia–Jimenez's base offense level because of a prior aggravated assault conviction in New Jersey. The court concluded that the conviction constituted a categorical "crime of violence" under U.S. Sentencing Guidelines section 2L1.2. Increasing the base offense level for illegal reentry by 16 levels pursuant to section 2L1.2 increased the Guidelines range from 10–to–16 months to 46–to–57 months. The court sentenced Garcia–Jimenez to serve 46 months, but stated, with no further explanation, that, even if the aggravated assault conviction was not a crime of violence, it would impose the same sentence.

On appeal, Garcia–Jimenez argues that his prior conviction is not a crime of violence because: (1) contrary to the New Jersey statute, the generic federal offense of aggravated assault requires a mens rea greater than recklessness under circumstances manifesting extreme indifference to the value of human life ("extreme indifference recklessness"); and (2) New Jersey's definition of "attempt," an element alternatively incorporated into the statute of conviction, is broader than the federal generic definition of "attempt."

We hold that, for both reasons, the provision of the New Jersey statute under which Garcia–Jimenez was convicted does not qualify as federal generic aggravated assault and therefore is not a "crime of violence." Because the district court's Guidelines error was not harmless, we vacate the sentence and remand to the district court for resentencing.

I.

Garcia–Jimenez is a citizen of Honduras. In 2009, he was arrested in New Jersey and indicted on several counts arising from an incident in which, after getting into an argument while drunk during a card game, he stabbed another card player. He pled guilty to aggravated assault, count one of the indictment, which charged that he "attempt[ed] to cause serious bodily injury ... and/or [ ] purposely or knowingly cause[d] serious bodily injury ... and/or under circumstances manifesting extreme indifference to the value of human life, [ ] recklessly cause[d] serious bodily injury to [another.]" The language of the indictment closely tracked the New Jersey aggravated assault statute, which reads: "A person is guilty of aggravated assault if he: ... [i] Attempts to cause serious bodily injury to another, or [ii] causes such injury purposely or knowingly or [iii] under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury...." N.J. Stat. Ann. § 2C:12–1(b)(1). Documents from the New Jersey proceedings do not specify which of the three prongs of the New Jersey statute Garcia–Jimenez was convicted of violating.

Garcia–Jimenez was sentenced for the aggravated assault conviction and served time in prison, after which, in September 2013, the U.S. Department of Homeland Security deported him. He was found in Arizona in May 2014 and charged with illegal reentry in violation of section 1326(a), as enhanced by subsection (b)(2).¹

After Garcia–Jimenez pled guilty, and in anticipation of sentencing, the U.S. Probation Office prepared a pre-sentence report ("PSR"). The PSR recommended that the district court depart upward from the Guidelines sentence because Garcia–Jimenez's prior conviction understated the seriousness of the offense for which he had been convicted. Garcia–Jimenez objected to the PSR, arguing that, in proposing the above-Guidelines sentence, the probation officer improperly relied on statements from the police report describing the incident. The Probation Office then revised the PSR, dropping the understated-offense enhancement and instead recommending a 16–level crime-of-violence enhancement under Guidelines section 2L1.2. That section provides: "If the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence ... increase [the base offense level] by 16 levels...." U.S.S.G. § 2L1.2(b)(1)(A). The comment to that section enumerates "aggravated assault" as a crime of violence. See id. cmt. n.1(B)(iii).²

The PSR acknowledged that under the categorical approach, the aggravated assault conviction probably was not a categorical crime of violence. But it nonetheless recommended the court apply the enhancement using the contents of judicially noticeable documents from the New Jersey conviction. Garcia–Jimenez objected to the crime-of-violence enhancement. At sentencing, the United States agreed with the PSR that the 16–level enhancement was warranted, but specifically urged that, under United States v. Esparza–Herrera, 557 F.3d 1019 (9th Cir.2009) (per curiam), Garcia–Jimenez's conviction does categorically qualify as a crime of violence.

The district court considered the PSR as well as judicially noticeable documents submitted by the United States. Relying on that information, and on the parties' arguments, the court added 16 levels to the base offense level for Garcia–Jimenez's reentry offense, thereby exposing him to a Guidelines range of 46–to–57 months. In support of that range, the district court stated, citing Esparza–Herrera, that "possibly categorically [the New Jersey conviction] is a crime of violence. We don't even have to do the modified categorical approach."³ Further explaining the sentence it would impose, the court reasoned that the 46–to–57–month range was "reasonable ... to satisfy all of the statutory factors of sentencing, including [Garcia–Jimenez's] history and characteristics."

Ultimately, the court sentenced Garcia–Jimenez to 46 months' imprisonment, the low end of the recommended range. The court explained, "the purpose of this sentence is to address safety to the community, public safety, and also to send a very clear message to [Garcia–Jimenez], that [he] should not return here ever until [he has] legal permission to travel here."

Without the enhancement, Garcia–Jimenez's adjusted base offense level would have resulted in a Guidelines range of 10–to–16 months. At the conclusion of the sentencing hearing, the court, without specifically noting the range applicable if the conviction were not a crime of violence, stated:

And I also should make a record that in the event that the Court incorrectly calculated the guidelines and the 16 level enhancement, if for some reason that was—that is incorrect and it's actually treated differently or less seriously under the guidelines, the Court in its discretion would sentence the defendant outside of the advisory guidelines because I think that ... 46 months is a reasonable sentence no matter ... whether the aggravated assault is a crime of violence under the advisory guidelines. So the Court would treat it that way in any event and sentence the defendant outside of the guidelines if, in fact, the Court were unable to reach the guideline range of 46 to 57 months due to the nature—due to how the criminal history is treated under the advisory guidelines.

Garcia–Jimenez timely appealed his sentence.

II.

This court reviews de novo the district court's determination that Garcia–Jimenez's prior conviction constitutes a crime of violence under Guidelines section 2L1.2. United States v. Marcia–Acosta, 780 F.3d 1244, 1248 (9th Cir.2015). As we explained in Marcia–Acosta, a case, like this one, involving application of the 16–level section 2L1.2 crime-of-violence enhancement:

The Federal Sentencing Guidelines generally apply 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. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The definition of "crime of violence" includes the crime of "aggravated assault" under state law. See U.S.S.G. § 2L1.2, cmt. n.1 (B)(iii). 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 constitutes a "crime of violence" for the purposes of U.S.S.G. § 2L1.2(b)(1)(A). When the statute of conviction sweeps more broadly than the generic crime, a conviction under that law cannot categorically count as a qualifying predicate, even if the defendant actually committed the offense in its generic form.

Id. (some internal quotation marks, citations, and alterations omitted).

Here, comparing the elements of the New Jersey provision under which Garcia–Jimenez was convicted with the elements of the federal generic definition of aggravated assault, we conclude, for two independent reasons, that the two are not a categorical match. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

A.

New Jersey law punishes an individual for aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury...." N.J. Stat. Ann. § 2C:12–1(b)(1). Garcia–Jimenez maintains that this provision is broader than the federal generic definition of aggravated assault, because it punishes conduct...