United States v. Rede-Mendez

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0144p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 10-2509

v.

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Defendant-Appellant. -

ANDRES REDE-MENDEZ,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 10-00180-001—Robert J. Jonker, District Judge.

Argued: September 22, 2011

Decided and Filed: May 21, 2012

Before: MOORE, GRIFFIN, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN, Grand Rapids, Michigan, for

Appellant. John F. Salan, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL & PHELAN,

Grand Rapids, Michigan, for Appellant. John F. Salan, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee.

MOORE, J., delivered the opinion of the court, in which WHITE, J., joined.

GRIFFIN, J. (pp. 11–22), delivered a separate dissenting opinion.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Andres Rede-

Mendez appeals his sentence of thirty-six months of imprisonment for reentering the

United States after having been removed following a conviction for an aggravated felony

in violation of 8 U.S.C. § 1326(a) and (b)(2). Rede-Mendez challenges the district

1

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court’s use of a sixteen-level enhancement pursuant to United States Sentencing

Guidelines (“U.S.S.G.”) Manual § 2L1.2, contending that his prior conviction for

aggravated assault (deadly weapon) under New Mexico law did not constitute a crime

of violence meriting the enhancement. Because aggravated assault under New Mexico

law is not categorically a crime of violence and the available Shepard documents do not

reveal what version of the offense Rede-Mendez committed, we VACATE the judgment

of the district court and REMAND for resentencing consistent with this opinion.

I. BACKGROUND

On April 14, 2010, Andres Rede-Mendez was arrested in Berrien County,

Michigan for operating under the influence and driving without a license. In a

subsequent interview with Immigration and Customs Enforcement agents, Rede-Mendez

admitted that he had reentered the United States without permission in 2007 after having

been removed to Mexico in 2003. The 2003 removal followed a conviction in New

Mexico state court for aggravated assault (deadly weapon) in violation of New Mexico

Statute § 30-3-2(A). Rede-Mendez was indicted on one count of reentering the United

States after having been removed following a conviction for an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2).1 He pleaded guilty on August 17, 2010.

The Presentence Investigation Report (“PSR”) utilized U.S.S.G. § 2L1.2, which

sets a base offense level of eight for the crime of Unlawfully Entering or Remaining in

the United States and provides for a sixteen-level enhancement if the defendant

“previously was deported . . . after a conviction for a felony that is . . . a crime of

violence,” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Concluding that Rede-Mendez’s aggravated-

assault conviction constituted a crime of violence, the PSR applied the sixteen-level

increase. The PSR subtracted three levels for Rede-Mendez’s acceptance of

responsibility. With a criminal history category of IV and an offense level of twenty-

one, the recommended guidelines range was 57-71 months of imprisonment.

1

8 U.S.C. § 1326(a) describes the crime of unlawful reentry of removed aliens and sets a

maximum term of imprisonment of two years. Section 1326(b)(2) sets a higher maximum term of

imprisonment of twenty years for aliens whose removal followed conviction for an “aggravated felony.”

No. 10-2509 United States v. Rede-Mendez Page 3

Rede-Mendez objected to the report, arguing that the aggravated-assault

conviction was not a crime of violence. The district court overruled Rede-Mendez’s

objections and applied the enhancement, concluding that the New Mexico statute’s

inclusion of the use of a deadly weapon as an aggravating factor meant that the crime fell

within the generic definition of aggravated assault and had the use or threatened use of

physical force as an element. The court also departed downward one criminal history

level, however, which reduced the guidelines range to 46-57 months of imprisonment.

Reasoning that Rede-Mendez’s offense was a relatively minor crime of violence

compared to other crimes that also bear that designation and that, as a deportable alien,

he would not be able to take advantage of certain rehabilitative programs while confined,

the district court imposed a below-guidelines sentence of 36 months of imprisonment.

Rede-Mendez filed a timely notice of appeal, alleging that his sentence was

procedurally unreasonable due to the sixteen-level enhancement for a prior felony crime

of violence.

II. ANALYSIS

A. Crime of Violence

This case again requires us to determine whether a particular criminal offense

triggers an enhanced sentence by qualifying as a crime of violence, by now a common

but no less difficult task. We review de novo a district court’s conclusion that a crime

constitutes a crime of violence for sentencing purposes. United States v. Soto-Sanchez,

623 F.3d 317, 319 (6th Cir. 2010).

The Application Notes to U.S.S.G. § 2L1.2 define “crime of violence” as certain

enumerated offenses—including “aggravated assault”—and “any other offense under

federal, state, or local law that has as an element the use, attempted use, or threatened

use of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).2

2

Guideline § 4B1.2 (the career offender guideline), 18 U.S.C. § 16, and the Armed Career

Criminal Act, 18 U.S.C. § 924(e), all employ the “use, attempted use, or threatened use of physical force”

definition of crime of violence or violent felony, but also contain residual clauses, which include crimes

that carry a “substantial risk that physical force against the person or property of another may be used in

No. 10-2509 United States v. Rede-Mendez Page 4

Although we are bound by a state court’s interpretation of state criminal law, including

the elements of a crime, the ultimate issue of whether a crime is a crime of violence is

a question of federal law. United States v. Rodriguez, 664 F.3d 1032, 1037 (6th Cir.

2011) (citing Johnson v. United States, — U.S. —, 130 S. Ct. 1265, 1269 (2010)).

In determining the nature of a prior conviction, we apply a “categorical”

approach, looking to the statutory definition of the offense and not the particular facts

underlying the conviction. Sykes v. United States, — U.S. —, 131 S. Ct. 2267, 2272

(2011) (quoting James v. United States, 550 U.S. 192, 202 (2007)); Soto-Sanchez,

623 F.3d at 320-21. Nor does a specific offense automatically qualify as a crime of

violence just because it has the same name as one of the enumerated offenses. Taylor

v. United States, 495 U.S. 575, 588-89 (1990). Rather, the offense for which the

defendant was convicted must fall within the generic definition of that crime, which is

found by surveying how the crime is described across jurisdictions, as well as consulting

sources such as the Model Penal Code. Id. at 598 & n.8; United States v. McFalls, 592

F.3d 707, 716-17 (6th Cir. 2010).

If a state criminal statute could be violated in a way that would constitute a crime

of violence and in a way that would not, we look beyond the statutory language and

examine certain state-court documents (the “Shepard documents”) to determine whether

the conviction necessarily depended on the commission of a crime of violence. United

States v. McMurray, 653 F.3d 367, 372 (6th Cir. 2011) (quoting United States v. Gibbs,

626 F.3d 344, 352 (6th Cir. 2010)); see also Shepard v. United States, 544 U.S. 13, 16-

the course of committing the offense,” 18 U.S.C. § 16, or a “serious potential risk of physical injury to

another,” 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2. To the extent that cases interpreting these other

provisions analyze the “element” prong, they are probative to an interpretation of U.S.S.G. § 2L1.2. See

United States v. Vanhook, 640 F.3d 706, 712 n.4 (6th Cir. 2011) (“Given the similarity between the

ACCA’s definition of ‘violent felony’ and the definition of ‘crime of violence’ contained in the pertinent

guideline provision, courts, including this one, have taken the position that authority interpreting one

phrase is generally persuasive when interpreting the other.”). Cases analyzing the residual clauses, by

contrast, are not pertinent.

Relatedly, the fact that Rede-Mendez apparently does not challenge the application of the

statutory sentence enhancement of 8 U.S.C. §1326(b)(2), which extends the potential sentence for unlawful

reentry for defendants whose removal followed a conviction for an “aggravated felony,” is not necessarily

relevant. Although “aggravated felony” is defined, in relevant part, by reference to the definition of “crime

of violence” in 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F), that section contains the broader residual

clause not found in § 2L1.2. A crime could thus be an aggravated felony for § 1326(b)(2) purposes but

not a crime of violence for § 2L1.2 purposes.

No. 10-2509 United States v. Rede-Mendez Page 5

17 (2005). When the prior conviction resulted from a guilty plea, we look to documents

that identify what facts the defendant “‘necessarily admitted’” by pleading guilty.

United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009) (quoting Shepard,

544 U.S. at 16). Such documents can include the “charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge

to which the defendant assented,” Shepard, 544 U.S. at 16; we do not, by contrast,

consider police reports or complaint applications, id. This approach ensures that

sentencing hearings do not become collateral trials. Id. at 23.

B. New Mexico Aggravated Assault—Categorical Analysis

1. Enumerated-Offense Prong

In New Mexico, aggravated assault (deadly weapon) is defined as “unlawfully

assaulting or striking at another with a deadly weapon.” N.M. Stat. § 30-3-2(A).

Assault is in turn defined as “(A) an attempt to commit a battery upon the person of

another; (B) any unlawful act, threat or menacing conduct which causes another person

to reasonably believe that he is in danger of receiving an immediate battery; or (C) the

use of insulting language toward another impugning his honor, delicacy or reputation.”

Id. § 30-3-1.

Under the Model Penal Code, a defendant commits aggravated assault if he or

she

(a) attempts to cause serious bodily injury to another, or causes such injury

purposely, knowingly, or recklessly under circumstances manifesting

extreme indifference to the value of human life, or

(b) attempts to cause or purposely or knowingly causes bodily injury to another

with a deadly weapon[.]

Model Penal Code § 211.1(2). We have recognized the Model Penal Code definition of

aggravated assault as the generic definition for the purpose of deciding whether a crime

with that label is a crime of violence, at least in states which have merged the crimes of

assault and battery. McFalls, 592 F.3d at 717. Professor LaFave likewise explains that,

in jurisdictions like New Mexico that retain a distinct crime of assault in which the fear

No. 10-2509 United States v. Rede-Mendez Page 6

of injury is sufficient for conviction, “there must be an actual intention to cause

apprehension.” 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) (2d ed. 2003).

As the government acknowledges, New Mexico’s definition of aggravated

assault “is broader than the Model Penal Code based definition.” United States Rule

28(j) Letter of Sept. 20, 2011. The New Mexico version of aggravated assault differs

from the generic version most significantly in the mens rea it attaches to the element of

bodily injury or fear of injury. Unlike the Model Penal Code or LaFave definitions, the

New Mexico statute does not require specific intent to injure or to frighten the victim.

See, e.g., State v. Manus, 597 P.2d 280, 284 (N.M. 1979), overruled on other grounds,

Sells v. State, 653 P.2d 162 (N.M. 1982); State v. Morales, 45 P.3d 406, 414-15 (N.M.

Ct. App. 2002). Instead, aggravated assault in New Mexico requires general criminal

intent, which consists of “conscious wrongdoing or the purposeful doing of an act that

the law declares to be a crime.” State v. Campos, 921 P.2d 1266, 1277 n.5 (N.M.

1996).3

New Mexico’s definition of aggravated assault is also broader than the generic

version because the underlying assault can be committed solely by using insulting

language. Neither the Model Penal Code nor LaFave recognize insult to honor or

reputation as the basis for an assault conviction.4 Because the New Mexico definition

of aggravated assault is broader than the Model Penal Code definition, which we have

recognized as the generic definition of that crime, we conclude that Rede-Mendez’s

3

Although the statute contains no express mens rea requirement as to any element, New Mexico

courts have consistently held that aggravated assault is a general-intent crime. See, e.g., Manus, 597 P.2d

at 284 (explaining that the state must prove that the act constituting aggravated assault “was done with a

general criminal intent”); State v. Bachicha, 808 P.2d 51, 54 (N.M. Ct. App. 1991) (“Proof of general

criminal intent is also a necessary element of the offense of aggravated assault.” (citing State v. Cruz, 525

P.2d 382 (N.M. Ct. App. 1974))). For crimes without any express statutory mens rea requirement, we look

to how state courts have construed the offense. See McFalls, 592 F.3d at 716.

4

Under the Model Penal Code, a person is guilty of simple assault if he

(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to

another; or

(b) negligently causes bodily injury to another with a deadly weapon; or

(c) attempts by physical menace to put another in fear of imminent serious bodily

injury.

Model Penal Code § 211.1(1). LaFave does not discuss insults, but notes that spoken threats do not

constitute assault. 2 LaFave, Substantive Criminal Law § 16.3(b) (“[T]hreatening words alone, without

any overt act to carry out the threat . . . will not do.”).

No. 10-2509 United States v. Rede-Mendez Page 7

conviction was not categorically a crime of violence under the enumerated-offense prong

of U.S.S.G. § 2L1.2.

2. “Element” Prong

The broad definition of assault likewise obstructs any argument that New Mexico

aggravated assault (deadly weapon) qualifies as a crime of violence under the “element”

prong. Other circuits have held that even a general-intent crime may include the

threatened use of physical force as an element if it includes the use of a deadly weapon

as an element. See, e.g., United States v. Ramon-Silva, 608 F.3d 663, 670-71, 674 (10th

Cir. 2010).5 Most of these cases deal with assault or battery statutes that require only

“the least touching,” but qualify as crimes of violence when the touching is accompanied

by a deadly weapon. See United States v. Grajeda, 581 F.3d 1186, 1191-92 (9th Cir.

2009); United States v. Dominguez, 479 F.3d 345, 348-49 (5th Cir. 2007); cf. Ramon-

Silva, 608 F.3d at 672 (no touch was necessary because using a deadly weapon while

engaging in menacing conduct that places someone in fear of an imminent battery

“creates a commensurate threat of physical force”).

Not every crime becomes a crime of violence when committed with a deadly

weapon, however. See, e.g., United States v. Baker, 559 F.3d 443, 452 (6th Cir. 2009)

(holding that Tennessee felonious reckless endangerment, which requires the use of a

deadly weapon, was not a crime of violence). Similarly, not all crimes involving a

deadly weapon have the threatened use of physical force as an element. Id. In the crime

of violence context, “the phrase ‘physical force’ means violent force,” Johnson, 130 S.

Ct. at 1270-71, and the use of a deadly weapon may transform a lesser degree of force

into the necessary “violent force.” Nonetheless, the underlying crime must already have

as an element some degree of, or the threat of, physical force in the more general sense

(such as “the least touching”). The use of a deadly weapon may exacerbate the threat

5

Ramon-Silva addressed the same statute at issue here. A divided panel of the Tenth Circuit held

that the “menacing conduct” prong of the New Mexico aggravated-assault statute was a crime of violence

when committed with a deadly weapon, but did not address the “insulting language” prong. See 608 F.3d

at 670 (“[W]e focus our analysis on ‘apprehension causing’ aggravated assault.”).

No. 10-2509 United States v. Rede-Mendez Page 8

of physical force, but does not necessarily supply the threat if it is not already present

in the underlying crime.6

Although using a deadly weapon while attempting to commit a battery, N.M.

Stat. § 30-3-1(A), or while engaging in an “unlawful act, threat or menacing conduct”

that places someone in fear of an imminent battery, id. § 30-3-1(B), may constitute the

kind of crime that employs the threatened use of physical force, doing so while “us[ing]

. . . insulting language toward another impugning his honor, delicacy or reputation,” id.

§ 30-3-1(C), does not.7 Even if the former qualified as a crime of violence under the

element prong—an issue we do not decide—the latter would not.

C. Shepard Documents

Accordingly, we look to the Shepard documents to determine whether Rede-

Mendez’s conviction necessarily rested on an intent to injure or frighten or on the

commission of an unlawful act, threat, or menacing conduct (rather than simply the use

of insulting language). The PSR author provided the district court with the information,

plea agreement, and judgment from the New Mexico proceedings. These documents do

not provide clarification, as they simply repeat the statutory language; the only

additional details are the name of the victim and the type of weapon. The information

charges that Rede-Mendez “did unlawfully assault or strike at Jessica Grimes with a

6

Even if the use of a deadly weapon arguably carries with it a risk that physical force may be

used, U.S.S.G. § 2L1.2 does not include a residual clause in its definition of crime of violence. See supra

note 2.

7

Although convictions under the “insulting language” prong of New Mexico’s assault statute

appear to be quite rare, and would perhaps be unconstitutional, see State v. Parrillo, 607 P.2d 636, 637

(N.M. Ct. App. 1979), the provision remains part of the New Mexico criminal code and thus available to

prosecutors in that state. The likelihood that a defendant’s conviction was based on a particular version

of the offense is not a factor in the crime of violence analysis. In Shepard, for example, “[w]hat mattered

was not how likely it was that Shepard had pleaded guilty to burglarizing buildings (or how unlikely it was

that he had pleaded guilty to burglarizing ‘ship[s], vessel[s] or vehicle[s]’), but whether the government

could produce evidence showing that Shepard ‘necessarily admitted’ to breaking into buildings when he

entered his pleas.” Medina-Almaguer, 559 F.3d at 425 (citing Shepard, 544 U.S. at 16).

Moreover, although the dissent suggests otherwise, New Mexico courts have never held that an

aggravated-assault conviction cannot be based on an “insulting language” assault. In construing the

elements of aggravated assault in State v. DeMary, the New Mexico Supreme Court held that, “because

Section 30–3–2 actually uses the word assaulting in its definition of aggravated assault, it may become

necessary to construe the definition of assault pursuant to Section 30–3–1, N.M.S.A.1978,” and proceeded

to list each subsection of § 30-3-1, including subsection (C), the “insulting language” definition of assault.

655 P.2d 1021, 1023 (N.M. 1982).

No. 10-2509 United States v. Rede-Mendez Page 9

knife, a deadly weapon or an instrument or object which, when used as a weapon, could

cause death or very serious injury, contrary to NMSA 1978 § 30-3-2(A) (1963) (A fourth

degree felony).” R.22-5 at 3. It does not reveal to what section of the assault statute

Rede-Mendez pleaded or whether Rede-Mendez necessarily admitted to intentionally

frightening the victim. In its approval of the plea agreement, the state trial court stated

simply that “there exists a basis in fact for believing the defendant is guilty the [sic]

offenses charged and that an independent record for such factual basis has been made.”

R.22-6 at 6.

The PSR author also presented the statement of probable cause filed by the

arresting officer, but Shepard prevents the district court from examining this document

as evidence of the nature of a prior conviction. Like the complaint application in

Shepard, 544 U.S. at 16, and the preliminary-examination transcript in Medina-

Almaguer, 559 F.3d at 423, a statement of probable cause is a “gateway step in the

criminal process” that does not establish what acts were “necessarily admitted” by a later

guilty plea, Medina-Almaguer, 559 F.3d at 423.

We recognize that Rede-Mendez does not contend that his aggravated-assault

conviction was based on the use of insulting language. Nonetheless, the categorical

approach requires us to consider “only the facts necessarily admitted by the defendant

in pleading guilty even if we are forced to ‘feign agnosticism about clearly knowable

facts.’” McMurray, 653 F.3d at 381 (quoting Shepard, 544 U.S. at 34-35 (O’Connor,

J., dissenting)). The defendant in Shepard, for example, had previously pleaded guilty

to burglary, which under Massachusetts law could include breaking into a ship or a

vehicle, but under the generic definition is limited to breaking into a building or

structure. 544 U.S. at 16-17. The Supreme Court held that the sentence enhancement

was improper because, even though the fact that the defendant had actually broken into

buildings was essentially uncontested, the complaint contained the broader statutory

language and no other state-court document that the district court could properly have

considered suggested a narrower charge. Id. at 17, 21-22. In order to avoid a similar

No. 10-2509 United States v. Rede-Mendez Page 10

result in this case, the New Mexico authorities could have drafted a more precise charge

or required a more detailed plea agreement.

Without any indication as to whether Rede-Mendez’s aggravated-assault

conviction fit within the generic definition or could have involved the threatened use of

physical force, we cannot conclude that Rede-Mendez committed a crime of violence.

The sentencing enhancement was thus improper.

III. CONCLUSION

Because the New Mexico offense of aggravated assault (deadly weapon) is

broader than the generic definition of aggravated assault and can be committed in a way

that does not involve the use or threatened use of physical force, and because the

Shepard documents do not reveal what version of the offense Rede-Mendez necessarily

admitted to committing when he pleaded guilty, Rede-Mendez’s prior conviction does

not trigger the crime of violence enhancement under U.S.S.G. § 2L1.2. Therefore, we

VACATE the district court’s judgment and REMAND for resentencing consistent with

this opinion.

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_____________

DISSENT

_____________

GRIFFIN, Circuit Judge, dissenting. I respectfully disagree with the majority’s

conclusion that defendant Rede-Mendez’s prior New Mexico conviction for aggravated

assault (deadly weapon) is not a crime of violence that triggers the sixteen-level

sentencing enhancement of U.S.S.G. § 2L1.2(b)(1)(A). Two of our sister circuits have

held that aggravated assault with a deadly weapon committed in violation of N.M. Stat.

§ 30-3-2(A) has as an element “the use, attempted use, or threatened use of physical

force against the person of another” and therefore qualifies as a crime of violence for

sentencing purposes. See United States v. Silva, 608 F.3d 663 (10th Cir. 2010), cert.

denied 131 S. Ct. 1473 (2011); United States v. Licon-Nunez, 230 F. App’x 448 (5th Cir.

2007). I would follow the rationale of these courts and hold that the district court

properly applied the enhancement in the present case. Therefore, Rede-Mendez’s

sentence is procedurally reasonable and should be affirmed.

I.

In March 2001, Rede-Mendez robbed a coffee shop in Ranchos de Taos, New

Mexico, armed with a knife that he pointed at the store clerk. He was apprehended

approximately one month later, and a state criminal complaint was filed on April 17,

2001, in the Taos County, New Mexico, Magistrate Court. The complaint charged in

pertinent part: “Count 2 – Aggravated Assault – [Rede-Mendez] [d]id unlawfully assault

or strike at another to wit: Jessica Grimes [the store clerk], with a deadly weapon to wit:

a knife, contrary to Section 30-3-2A, N.M.S.A. 1978 (Fourth Degree Felony).” It was

sworn to under oath by a state police officer, with a statement of probable cause affixed

to it.

In May 2001, a four-count criminal information was filed in the Eighth Judicial

District Court for the County of Taos, New Mexico. Count 2 of the information charged

Rede-Mendez with aggravated assault (deadly weapon) and alleged that “on or about the

10th day of March, 2001, in Taos County, New Mexico, the above-named defendant did

No. 10-2509 United States v. Rede-Mendez Page 12

unlawfully assault or strike at Jessica Grimes with a knife, a deadly weapon or an

instrument or object which, when used as a weapon, could cause death or very serious

injury, contrary to N.M.S.A. 1978 § 30-3-2(A) (1963) (A fourth degree felony).” On

July 11, 2001, Rede-Mendez entered into a plea agreement and pled guilty to Count 2

of the information. The district court approved the plea agreement and, based on Rede-

Mendez’s plea, stated in its opinion that “there exists a basis in fact for believing the

defendant is guilty of the offenses charged and that an independent record for such

factual basis has been made.” On July 13, 2001, the court sentenced Rede-Mendez to

eighteen months of incarceration followed by one year of parole, suspended upon the

condition that he was to remain in custody for a thirty-day period to allow the INS to

deport him to his native country of Mexico. The judgment of conviction reiterated that

Rede-Mendez “is convicted and stands guilty of the crime as charged in Count 2 of the

Criminal Information of: AGGRAVATED ASSAULT (DEADLY WEAPON), contrary

to N.M.S.A. 1978, § 30-3-2(A) (1963) (A fourth degree felony).”

Following his deportation and illegal return to the United States, Rede-Mendez

was arrested by Michigan authorities in 2010 for operating under the influence of

alcohol, a charge that flagged his illegal status and led to his federal indictment on one

count of reentry of an illegal alien following deportation for an aggravated felony

conviction, 8 U.S.C. § 1326(a). In August 2010, he pled guilty to the offense without

a plea agreement. Over Rede-Mendez’s objection, the district court held that his 2001

New Mexico conviction for aggravated assault (deadly weapon) constituted a “crime of

violence” so as to warrant a sixteen-level sentencing enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Despite the enhancement, the district court ultimately imposed a

below-Guidelines sentence of 36 months of imprisonment because Rede-Mendez was

a deportable alien and the court could not achieve the rehabilitative purposes of

sentencing.

II.

In order to constitute a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii),

Rede-Mendez’s offense must qualify as one of the enumerated offenses – in this case,

No. 10-2509 United States v. Rede-Mendez Page 13

aggravated assault – “or . . . ha[ve] as an element the use, attempted use, or threatened

use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)

(Nov. 2011) (emphasis added). This definition is disjunctive; thus, a prior felony

conviction is a crime of violence if it meets either one of these criteria.1 United States

v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010); United States v. Rivera-Oros,

590 F.3d 1123, 1126 (10th Cir. 2009).

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court addressed the

definition of “crime of violence” set forth in 18 U.S.C. § 16(a), which is identical in all

relevant respects to the language of the element prong of § 2L1.2, cmt. n.1(B)(iii),2 and

determined that the phrase “use of physical force” connotes “active employment” and

thus refers only to crimes that carry “a higher degree of intent than negligence or merely

accidental conduct.” Id. at 9. In the wake of the Leocal decision, we, and the majority

of our sister circuits, have extended its rationale and held that crimes requiring only

recklessness do not constitute crimes of violence or violent felonies under the element

prongs of § 16(a), the ACCA, or § 2L1.2. See United States v. McMurray, 653 F.3d 367,

374-75 (6th Cir. 2011); United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010);

United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009); United States v. Portela, 469

F.3d 496, 499 (6th Cir. 2006); see also United States v. Zuniga-Soto, 527 F.3d 1110,

1124 (10th Cir. 2008) (and cases cited therein).

In a subsequent decision, the Supreme Court addressed the degree of physical

force necessary to qualify as a violent felony under the ACCA and applied Leocal’s

reasoning to hold that “the phrase ‘physical force’ [under the ACCA] means violent

force – that is, force capable of causing physical pain or injury to another person.”

1

The second criterion is henceforth referred to as the “element prong.”

2

In light of the identical language used in the element prongs of the career offender guideline

(U.S.S.G. § 4B1.2(a)(1)), Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)(2)(B)(i)), 18 U.S.C.

§ 16(a), and U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), to define “violent felony” and “crime of violence,” we

“have taken the position that authority interpreting one phrase is generally persuasive when interpreting

the other.” United States v. Vanhook, 640 F.3d 706, 712 n.4 (6th Cir. 2011); see also United States v.

McMurray, 653 F.3d 367, 371 n.1, 373-74 (6th Cir. 2011).

No. 10-2509 United States v. Rede-Mendez Page 14

Johnson v. United States, — U.S. — , 130 S. Ct. 1265, 1271, 176 L. Ed.2d 1 (2010); see

also McMurray, 653 F.3d at 374.

“In determining the nature of a prior conviction, we are to apply a ‘categorical’

approach, looking to the statutory definition of the offense and not the particular facts

underlying the conviction.” McMurray, 653 F.3d at 372 (citing Taylor v. United States,

495 U.S. 575, 600 (1990)). “If it is possible to violate the statute in a way that would

constitute a [violent felony or crime of violence] and in a way that would not, the court

may [utilize a modified-categorical approach and] consider the indictment, guilty plea,

or similar documents to determine whether they necessarily establish the nature of the

prior conviction.” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005), and

United States v. Gibb, 626 F.3d 344, 352 (6th Cir. 2010)). “In a pleaded case, the

documents must demonstrate that the plea . . . necessarily rested on the fact identifying

the [crime as a qualifying offense].” Id. at 377 (citation and internal quotation marks

omitted). “[T]wo types of proof . . . that might suffice to establish that a plea

‘necessarily rested on the elements of a predicate offense [are]: (i) proof that the

defendant admitted to predicate conduct when confirming the factual basis for a valid

plea; [and] (ii) proof that the charge was narrowed to include only predicate conduct.”

Id. at 378 (citation and internal quotation marks omitted).

The New Mexico statute at issue defines “aggravated assault” with a deadly

weapon as: “(A) unlawfully assaulting or striking at another with a deadly weapon;

(B) committing assault by threatening or menacing another while wearing a mask, hood,

robe or other covering upon the face, head or body, or while disguised in any manner,

so as to conceal identity; or (C) willfully and intentionally assaulting another with intent

to commit any felony.” N.M. Stat. § 30-3-2. An aggravated assault by use of a deadly

weapon requires only general criminal intent. State v. Bachicha, 808 P.2d 51, 54 (N.M.

Ct. App. 1991).

An “assault” is further defined by New Mexico statute as: “(A) an attempt to

commit a battery upon the person of another; (B) any unlawful act, threat or menacing

conduct which causes another person to reasonably believe that he is in danger of

No. 10-2509 United States v. Rede-Mendez Page 15

receiving an immediate battery; or (C) the use of insulting language toward another

impugning his honor, delicacy or reputation.” N.M. Stat. § 30-3-1.

The New Mexico courts have held that the crime of aggravated assault with a

deadly weapon may occur under either of two theories: an assault by attempted battery

with a deadly weapon, consistent with § 30-3-1(A); or by engaging in threatening or

menacing conduct with a deadly weapon which causes the victim to believe that he or

she was about to receive a battery – so-called “apprehension causing” aggravated assault,

see Silva, 608 F.3d at 669 – consistent with § 30-3-1(B). Bachicha, 808 P.2d at 54; State

v. Woods, 483 P.2d 504, 505 (N.M. Ct. App. 1971); State v. Anaya, 439 P.2d 561, 562-

63 (N.M. Ct. App. 1968); N.M. U.J.I. (New Mexico Uniform Jury Instructions) 14-304

through 14-306.3 See also Silva, 608 F.3d at 669 (discussing the two theories); cf.

United States v. Hammons, No. CR 07-1164 JB, 2010 WL 4321693, at *20 (D. N.M.

Oct. 6, 2010) (also discussing the two theories in the context of New Mexico’s similar

offense of aggravated assault against a family member with a deadly weapon).

As common and legal sense would dictate, the New Mexico courts do not

recognize a theory of aggravated assault with a deadly weapon arising from “the use of

3

N.M. U.J.I. 14-306 sets forth the elements of these two theories:

For you to find the defendant guilty of aggravated assault by use of a deadly weapon [as

charged in Count ____], the state must prove to your satisfaction beyond a reasonable

doubt each of the following elements of the crime:

1. The defendant tried to touch or apply force to ____ (name of victim) by ____;

2. The defendant acted in a rude, insolent or angry manner;

3. The defendant intended to touch or apply force to _____ (name of victim) by ____;

OR

1. The defendant ____ (describe unlawful act, threat or menacing conduct);

2. The defendant’s conduct caused ____ (name of victim) to believe the defendant was

about to intrude on _____’s (name of victim) bodily integrity or personal safety by

touching or applying force to ____ (name of victim) in a rude, insolent or angry manner;

3. A reasonable person in the same circumstances as ____ (name of victim) would have

had the same belief;

AND

4. The defendant used a [____] deadly weapon. The defendant used a ____ (name of

object). A ____ (name of object) is a deadly weapon only if you find that a ____ (name

of object), when used as a weapon, could cause death or great bodily harm[.]

No. 10-2509 United States v. Rede-Mendez Page 16

insulting language toward another impugning his honor, delicacy or reputation” under

Subsection (C) of New Mexico’s simple assault statute, § 30-3-1(C).

In the present case, it is clear from the relevant state-court documents that Rede-

Mendez was charged under N.M. Stat. 30-3-2(A). Regardless of whether the New

Mexico offense of aggravated assault by use of a deadly weapon fits within the generic

definition of “aggravated assault,” Rede-Mendez’s prior conviction under § 30-3-2(A)

qualifies as a crime of violence because under either the attempted battery or

apprehension causing theories of aggravated assault, it “has as an element the use,

attempted use, or threatened use of physical force against the person of another,”as the

Fifth and Tenth Circuits have held in Licon-Nunez and Silva, respectively.

In Licon-Nunez, the Fifth Circuit employed the categorical approach to conclude

that the defendant’s prior conviction for aggravated assault with a deadly weapon under

§ 30-3-2 was a crime of violence under § 2L1.2's element prong. Licon-Nunez, 230 F.

App’x at 451. Because Licon-Nunez’s indictment tracked the language of § 30-3-2(A),4

the court construed the requisite elements of the offense as “(1) the unlawful assaulting

or striking at another and (2) the use of a deadly weapon,” with the first element

specifically requiring that the defendant tried to and intended to touch or apply force to

the victim while acting in a rude, insolent, or angry manner. Id. (citing N.M. U.J.I. 14-

304). The court rejected Licon-Nunez’s argument that the offense does not require an

element of the threatened use of physical force because it can be committed by means

of offensive touching rather than by the application of force:

We have recently held that the offensive touching of an individual with

a deadly weapon creates a sufficient threat of force to qualify as a crime

of violence. [United States v.] Dominguez, 479 F.3d [345, 348 (5th Cir.

2007)]. In Dominguez, the Court considered whether the Florida offense

of aggravated battery by use of a deadly weapon, which can be

committed via the intentional touching of a victim with a deadly weapon,

was a crime of violence. The Court determined that even though an

intentional touching with a deadly weapon might not itself cause injury,

4

The indictment charged that Licon-Nunez “did assault or strike at Cesar Esparza with a deadly

weapon, to wit: a knife, a fourth degree felony contrary to Section 30-3-2A NMSA 1978.” Id. at 451.

No. 10-2509 United States v. Rede-Mendez Page 17

as required for an actual use of force, “it could lead to more violent

contact, or could at least put the victim on notice of the possibility that

the weapon will be used more harshly in the future, thereby constituting

a threatened use of force.” Id. at 349. We think the same may be said of

the New Mexico crime of aggravated assault by use of a deadly weapon.

While the New Mexico crime differs from the crime in Dominguez

because the former does not require an actual touching, the attempt to

offensively touch a victim with a deadly weapon combined with the

intent to do the same is enough to give rise to a threatened use of force

under the reasoning in Dominguez. Thus, Licon-Nunez’s conviction for

aggravated assault by use of a deadly weapon qualifies as a crime of

violence warranting a sentence enhancement under § 2L1.2.

Id. at 452.

In Silva, a panel majority of the Tenth Circuit reached a similar conclusion with

regard to § 30-3-2(A), holding that the defendant’s prior conviction for “apprehension

causing” aggravated assault with a deadly weapon qualified as a “violent felony” under

the ACCA. Silva, 608 F.3d at 670. The underlying New Mexico indictment alleged that

Silva “did unlawfully assault or strike at [the victim], with a firearm, which was a deadly

weapon.” Id. at 669 n.3 (citation omitted). Silva entered a plea of no contest to the

charge pursuant to a written plea agreement. Id. At his sentencing on federal charges

of possession of a firearm after conviction of a felony, the district court imposed the

ACCA’s fifteen-year mandatory minimum sentence enhancement based on its finding

that the aggravated assault conviction had as an element the use or threatened use of

physical force and, therefore, qualified as a violent felony. The Tenth Circuit affirmed

the district court’s decision.

The Silva court characterized the crime as “apprehension causing” aggravated

assault, which “‘requires proof that [the] defendant threatened or engaged in menacing

conduct with a deadly weapon toward a victim, causing the victim to believe he or she

was about to be in danger of receiving an immediate battery,’” the use of a deadly

weapon, and proof of general criminal intent. Id. at 670 (quoting Bachicha, 808 P.2d at

No. 10-2509 United States v. Rede-Mendez Page 18

54).5 Considering these elements together, the court held that § 30-3-2(A) involves

active violent force:

“[A]pprehension causing” aggravated assault in New Mexico includes as

an element the threatened use of “force capable of causing physical pain

or injury to another person.” See Johnson, 130 S. Ct. at 1271.

Threatening or engaging in menacing conduct toward a victim, with a

weapon capable of producing death or great bodily harm, threatens the

use of “violent force” because by committing such an act, the aggressor

communicates to his victim that he will potentially use “violent force”

against the victim in the near-future. Additionally, “apprehension

causing” aggravated assault threatens the use of “violent force” because

the proscribed conduct always has the potential to lead to “violent force.”

Id. at 670-71.

The Silva court drew support for its conclusion from a line of cases, including

Licon-Nunez, which have held that analogous offenses constitute crimes of violence

under the element prong of § 2L1.2(b)(1)(A)(ii). See id. at 671-72 (discussing Licon-

Nunez, Dominguez, and United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir.

2005)). Indeed, the court noted that Licon-Nunez involved “the same subsection under

which Silva was convicted.” Id. at 672.

In addition, the Silva court held that § 30-3-2(A) satisfied the mens rea

requirement. It rejected Silva’s argument that because aggravated assault is a general

intent crime and lacks as a requirement the defendant’s specific intent to induce fear in

the victim, it did not satisfy the ACCA’s element prong. Id. at 673-74. Specifically,

Silva argued that the Supreme Court’s decision in Leocal and the Tenth Circuit’s

decision in Zuniga-Soto imposed the additional requirements that only crimes involving

intentional conduct, not merely recklessness, can qualify as violent felonies under the

element prong of the ACCA. Id. at 672. However, acknowledging that the ACCA only

encompasses intentional conduct, the Silva court nonetheless held that the commission

5

Although Silva’s state-court plea agreement did not describe the assault and the record did not

contain the plea colloquy, in focusing its analysis on this theory, the court noted that the New Mexico

indictment tracked the statutory language of § 30-3-2(A), and Silva’s sentencing challenge centered upon

this theory. Id. at 669 n.3, 670.

No. 10-2509 United States v. Rede-Mendez Page 19

of apprehension causing aggravated assault in New Mexico requires proof that the

defendant acted “intentionally,” not recklessly or negligently:

[T]his argument . . . ignores Silva’s plea of no contest to aggravated

assault, which was an admission of intentional conduct. “Apprehension

causing” aggravated assault requires proof of general criminal intent,

which New Mexico courts have consistently “defined as conscious

wrongdoing or the purposeful doing of an act that the law declares to be

a crime.” State v. Campos, [921 P.2d 1266, 1277 n.5 (N.M. 1996))]. . . .

Silva concedes as much in his brief when he states that in a prosecution

for “apprehension causing” aggravated assault, New Mexico’s Uniform

Jury Instruction for general criminal intent requires a jury to find beyond

a reasonable doubt that “the defendant acted intentionally when he

committed the crime.” N.M. U.J.I. 14-141. That aggravated assault does

not require proof of a specific intent to assault the victim, State v. Manus,

[597 P.2d 280, 284 (N.M. 1979)], overruled on other grounds by Sells v.

State, [653 P.2d 162, 164 (N.M. 1982)] [,] . . . or of a specific “intent []

to injure or even frighten” the victim, State v. Morales, [45 P.3d 406, 414

(2002)], only confirms that aggravated assault is not a specific intent

crime, but rather is a general intent crime. The presence or absence of an

element of specific intent does not dispositively determine whether a

prior conviction qualifies as a violent felony under the ACCA. Because

Silva admitted to engaging in conduct constituting the threatened use of

physical force, and admitted to engaging in that conduct intentionally, his

aggravated assault conviction qualifies as a violent felony.

***

[A]pprehension-causing aggravated assault requires proof of more than

the display of dexterity in handling a weapon; the crime requires proof

that a defendant purposefully threatened or engaged in menacing conduct

toward a victim, with a weapon capable of producing death or great

bodily harm. See Bachicha, 808 P.2d at 54. We conclude that this

intentional conduct threatens the use of physical force against the person

of another, and therefore qualifies as a violent felony under the ACCA.

Id. at 673-74 (citations and internal quotation marks omitted).6

6

In so concluding, the court expressly declined to further expand Leocal’s holding:

The dissent would conclude that Silva’s aggravated assault conviction is not a violent

felony, and would extend Leocal and Zuniga-Soto to conclude that crimes have as an

element the “threatened use of physical force against the person of another” only if they

proscribe “conduct performed with an intent to induce fear.” [Silva, 608 F.3d at 676

(Hartz, J., dissenting)]. But Leocal cannot be read as definitively supporting that

No. 10-2509 United States v. Rede-Mendez Page 20

Thus, under § 30-3-2(A), Silva could not have been convicted for merely reckless

behavior. See also Hammons, 2010 WL 4321693 at *20-21 (citing Silva and holding

that the defendant’s prior conviction under a similar but not identical New Mexico

statute – aggravated assault statute on a family member using a deadly weapon § 30-3-

13(A)(2) – constituted a violent felony under the element prong of the ACCA). Cf.

United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012) (holding that

the defendant’s prior Florida conviction for resisting an officer with violence was a crime

of violence under § 2L1.2(b)(1)(A)(ii) because the use of more than de minimis physical

force or violence was a necessary element of the offense and “Florida’s general intent

crimes plainly require something more than recklessness”); United States v. King, 673

F.3d 274, 279-80 (4th Cir. 2012) (holding that the defendant’s South Carolina

conviction for pointing and presenting a firearm required that the offender point, present,

or show the firearm at another in a threatening manner and therefore qualifies as a crime

of violence under U.S.S.G. § 4B1.2(a)(1)); United States v. Luna, 649 F.3d 91, 108-09

(1st Cir. 2011) (holding that the version of a Massachusetts armed robbery statute

involving threatening words or gestures has as an element the threat of violent physical

force necessary to satisfy the definition of “violent felony” under the ACCA); United

States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir. 2010) (holding that Colorado

felony menacing statute “is categorically a crime of violence under the element prong

of U.S.S.G. § 2L1.2. The nature of the force required . . . is in the category of violent

active crimes, because it penalizes imminent serious bodily injury, rather than minimal,

non-violent touching, and necessarily involves a threat to physical safety, rather than

general safety. Furthermore, the predicate offense of menacing, a general intent crime,

includes the requisite mens rea of intent for a crime of violence. It requires the defendant

to knowingly place another person in fear of an imminent serious bodily harm.”); United

extension. That case resolved an issue very different from the one we face here:

whether state DUI offenses, “which either do not have a mens rea component or require

only a showing of negligence in the operation of a vehicle,” have as an element the use

of physical force against the person of another, 543 U.S. at 6, 125 S. Ct. 377. In

resolving that issue, the Court made clear that it “d[id] not deal . . . with an attempted

or threatened use of force.” Id. at 8-9, 125 S. Ct. 377 (emphasis in original).

Silva, 608 F.3d at 673-74.

No. 10-2509 United States v. Rede-Mendez Page 21

States v. Pulliam, 566 F.3d 784, 788 (8th Cir. 2009) (“It goes without saying that

displaying an operational weapon before another in an angry or threatening manner [in

violation of Missouri’s crime of unlawful use of a weapon] qualifies as threatened use

of physical force against another person.”).

The Licon-Nunez and Silva decisions provide very persuasive authority

supporting the district court’s application of the sixteen-level enhancement in the present

case on the basis that a prior conviction under N.M. Stat. 30-3-2(A) is categorically a

“crime of violence” under the element prong of §2L1.2. Although our court has not yet

addressed whether such a general intent crime includes the requisite mens rea of intent

to be deemed a crime of violence or violent felony, I am persuaded by the Fifth and

Tenth Circuits’ reasoning with regard to N.M. Stat. § 30-3-2(A). By its plain language

– “assaulting or striking at another with a deadly weapon” – Subsection (A)

unambiguously includes as an inherent element “the use, attempted use, or threatened

use of physical force against another person” and precludes the possibility that the crime

was committed with the insufficient mens rea of mere recklessness. Whether Rede-

Mendez committed this offense under the attempted battery theory or the apprehension

causing theory of aggravated assault recognized by the New Mexico courts, the result

is the same – the requirement of general intent, combined with the affirmative use of a

deadly weapon, renders the New Mexico crime of aggravated assault with a deadly

weapon under § 30-3-2(A) sufficiently active and violent to qualify as a crime of

violence.

The majority’s contrary conclusion rests on the flawed assumption that Rede-

Mendez’s prior conviction may have been based on the use of “insulting language

toward another impugning his honor, delicacy or reputation” under Subsection (C) of the

simple assault statute, § 30-3-1(C), which would not satisfy the requirements of Leocal

or Johnson. The majority acknowledges that “Rede-Mendez does not contend that his

aggravated-assault conviction was based on the use of insulting language,” but

nonetheless holds that under the categorical approach, “[w]ithout any indication as to

whether Rede-Mendez’s aggravated-assault conviction . . . could have involved the

No. 10-2509 United States v. Rede-Mendez Page 22

threatened use of physical force, we cannot conclude that Rede-Mendez committed a

crime of violence.”

However, as the majority further acknowledges, “we are bound by a state court’s

interpretation of state criminal law, including the elements of a crime[.]” (citing United

States v. Rodriguez, 664 F.3d 1032, 1037 (6th Cir. 2011)). As I have detailed above, the

New Mexico courts recognize only two theories of aggravated assault – conforming to

subsections (A) and (B) of § 30-3-1. Thus, the majority’s suggested possibility that

Rede-Mendez pled guilty to aggravated assault under the “insulting language” theory of

§ 30-3-1(C) has no basis in New Mexico law. By pleading guilty to aggravated assault

with a deadly weapon under § 30-3-2(A), Rede-Mendez’s conviction satisfied the

element prong of § 2L1.2 cmt. n.1(B)(iii) so as to validate the district court’s imposition

of the sixteen-level sentencing enhancement.

III.

For these reasons, I would affirm and therefore respectfully dissent.