Argued and Submitted, San Francisco, California September 15, 2015
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:14-cr-00973-CKJ-DTF-1. Cindy K. Jorgenson, District Judge, Presiding.
The panel vacated a sentence for illegal reentry into the United States, and remanded for resentencing, in a case in which the district court increased the defendant's base offense level on the ground that his prior New Jersey aggravated assault conviction constituted a categorical " crime of violence" under U.S.S.G. § 2L1.2.
The panel held that the provision of the New Jersey statute under which the defendant was convicted, N.J. Stat. Ann. § 2C:12-1(b)(1), does not qualify as a federal generic aggravated assault, and therefore is not a " crime of violence," both because (1) § 2C:12-1(b)(1) punishes conduct committed with only extreme indifference recklessness and is therefore broader than the general federal offense; and (2) New Jersey's definition of " attempt" is broader than the federal generic definition in that New Jersey, which criminalizes attempts comprised of solely preparatory acts, has specifically rejected the prevalent " probable desistance" test.
The panel concluded that the error was not harmless.
Davina T. Chen (argued), Glendale, California, 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, Arizona, for Plaintiff-Appellee.
Before: William A. Fletcher, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges. Opinion by Judge Berzon.
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.
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).
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).
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 Esparza-Herrera v. United ...