USA v. Miguel Gomez-Hernandez

Filing

FILED OPINION (SUSAN P. GRABER, MARSHA S. BERZON and RICHARD C. TALLMAN) AFFIRMED. Judge: RCT Authoring. FILED AND ENTERED JUDGMENT. [8196402]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL ANGEL GOMEZ-HERNANDEZ,
Defendant-Appellant.





No. 10-10441
D.C. No.
4:09-cr-02558RCC-JJM-1
OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
February 14, 2012—San Francisco, California
Filed May 31, 2012
Before: Susan P. Graber, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman

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COUNSEL
Robert H. Sigal, Esq., Tucson, Arizona, for the defendantappellant.

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UNITED STATES v. GOMEZ-HERNANDEZ

Kyle J. Healey, Assistant United States Attorney, United
States Attorney’s Office, Tucson, Arizona, for the plaintiffappellee.

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-Herndandez 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
1

The district court applied the 2009 edition of the U.S. Sentencing
Guidelines Manual (“USSG”), and all references herein are to that edition.
See United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006) (citing
USSG § 1B1.11).

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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 (2007) (applying approach established in Taylor v. United States, 495 U.S. 575 (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.] §§ 131001, 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).”

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On October 31, 2001, Gomez-Hernandez pled guilty to
aggravated assault and attempted aggravated assault as
charged in the indictment. At the plea colloquy, GomezHernandez 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
2

According to the Pre-sentencing Report, Gomez-Hernandez went to the
home of A.R., his long-term girlfriend and the mother of his two children,
in an attempt to reconcile. When A.R. indicated that she did not wish to
continue their relationship, he pinned her against the wall and sliced her
on the neck with a razor knife. A.R.’s sister, G.R., pulled him backward
but he attempted to cut G.R. and pushed her away. He then sliced A.R.
across the stomach twice. G.R. again pulled him away and he fled the
house on foot. Following his arrest two months later, Gomez-Hernandez
admitted to the police that, at the time of the incident, he wanted to kill
A.R. because he believed that she was involved in a relationship with
another man.

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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
[1] 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
3

The district court relied on Gomez-Hernandez’s conviction for both
aggravated assault and attempted aggravated assault. Because we conclude
that Gomez-Hernandez’s prior conviction for attempted aggravated assault
qualifies as a crime of violence and thus justifies the district court’s imposition of a sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(ii),
we need not address whether the aggravated assault conviction would also
justify the sentencing enhancement.

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a crime of violence, see USSG § 2L1.2 cmt. n.1(B)(iii), as is
attempting to commit aggravated assault, see USSG § 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 (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). “[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

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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
[2] 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 GomezHernandez was convicted of the generic elements of attempt.
B
We turn to the second Taylor inquiry: was GomezHernandez 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 statute criminalizes non-violent

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behavior. We address and reject each of Gomez-Hernandez’s
arguments in turn.
1
[3] There is no dispute that an Arizona conviction for
aggravated assault (as opposed to attempted aggravated
assault) does not categorically qualify as a crime of violence
under Guideline § 2L1.2(b)(1)(A)(ii). See Esparza-Herrera,
557 F.3d at 1025. As we explained in Esparza-Herrera, Arizona’s definition of “aggravated assault” encompasses acts
done with ordinary recklessness. See id. at 1022
(“‘Intentionally, knowingly or recklessly causing any physical
injury to another person.’ ” (quoting Ariz. Rev. Stat. § 131203(A)(1))). By contrast, the generic definition of aggravated assault requires a greater mens rea—at least recklessness under circumstances manifesting extreme indifference to
the value of human life. Id. at 1022-25 (relying on the Model
Penal Code and the majority of state statutes).
[4] But our analysis does not end there. We are concerned
in this appeal with Gomez-Hernandez’s conviction for
attempted aggravated assault, not completed aggravated
assault. And it is well-settled that attempted aggravated
assault under Arizona law covers only intentional conduct.
See State v. Kiles, 857 P.2d 1212, 1224 (Ariz. 1993)
(“[A]ttempt is a specific intent crime and by definition
involves intentional conduct.”). An Arizona conviction for
attempted aggravated assault cannot be based on ordinary
recklessness. See id.4 Thus, Arizona’s attempted aggravated
assault offense—unlike the completed aggravated assault
4

Nor is it possible under Arizona law to be guilty of attempted aggravated assault based on intentionally engaging in conduct that recklessly
causes physical injury to another. That reasoning has been rejected by the
Arizona courts. See, e.g., State v. Adams, 745 P.2d 175, 178-79 (Ariz. Ct.
App. 1987) (“[T]here is no such criminal offense as an attempt to achieve
an unintended result.”).

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offense—does not encompass a lesser mens rea than the
generic definition of aggravated assault.5
Gomez-Hernandez urges us to ignore that he was convicted
of attempted aggravated assault and that, as a matter of Arizona law, his conviction could not have been based on mere
recklessness. He reasons that his Arizona conviction for
attempted aggravated assault cannot categorically qualify as
a crime of violence unless Arizona’s completed aggravated
assault offense is itself a categorical match. In other words,
Gomez-Hernandez would have us look at the underlying
offense in isolation, without regard to his actual crime of conviction.
The Supreme Court rejected a similar argument in James v.
United States, 550 U.S. 192, 201-09 (2007), where the Court
held that attempted burglary under Florida law is categorically
a violent felony under the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(ii). There, the defendant argued that
Florida’s attempt statute is overbroad because, on its face, it
requires only that a defendant take “ ‘any act toward the commission’ ” of a burglary. Id. at 202 (quoting Fla. Stat.
5

That the indictment alleged that Gomez-Hernandez “intentionally,
knowingly or recklessly attempted to cause a physical injury” (emphasis
added)—a legal impossibility—does not change this result. We do not rely
on the indictment to conclude that his conviction was based on intentional
conduct. We look only to the fact of his conviction for attempted aggravated assault and Arizona’s definition of that offense. See Taylor, 495
U.S. at 602.
To the extent Gomez-Hernandez challenges the sufficiency of the Arizona indictment, a defendant generally has no right to collaterally attack
a prior conviction used for purposes of a sentencing enhancement. See
United States v. Burrows, 36 F.3d 875, 884-85 (9th Cir. 1994) (citing Custis v. United States, 511 U.S. 485 (1994)). In any event, had he raised this
issue before the Arizona Superior Court prior to pleading guilty, the state
would likely have been permitted to amend the indictment to reflect that
“[t]he state was required to show that defendant acted ‘intentionally’
rather than merely ‘recklessly.’ ” State v. Delgado, 848 P.2d 337, 340
(Ariz. Ct. App. 1993).

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§ 777.04(1)). The Court acknowledged that the statutory text
is broad, but refused to consider Florida’s attempt statute in
isolation. Id. Instead, the Court looked to the scope of Florida’s attempt statute “in the context of attempted burglary”
(i.e., the crime of conviction). Id. (emphasis added) (“[W]hile
the statutory language is broad, the Florida Supreme Court
has considerably narrowed its application in the context of
attempted burglary, requiring an ‘overt act directed toward
entering or remaining in a structure or conveyance.’ ” (quoting Jones v. State, 608 So. 2d 797, 799 (Fla. 1992)). Indeed,
the Court described its inquiry as “examining what constitutes
attempted burglary under Florida law,” id.—not some
detached examination of Florida’s attempt statute conducted
without regard to the actual crime of conviction.6
We must not lose sight of the forest for the trees. The purpose of our application of Taylor’s two-step approach is to
6

Gomez-Hernandez correctly points out that in applying the categorical
approach to a prior attempt conviction in Saavedra-Velazquez, 578 F.3d
1103, and Rebilas, 527 F.3d 783, we compared the state’s completed
underlying offense statute with the generic definition. But neither case
directly addressed whether the state’s completed underlying offense statute should be considered in the context of a conviction for attempt to commit that offense. Indeed, we had no reason to do so; the result would have
been the same.
In Saavedra-Velazquez, we held that “completed robbery under Cal.
Penal Code § 211 is a ‘crime of violence’ for purposes of the Sentencing
Guidelines.” 578 F.3d at 1106. Thus, there was no overbreadth to remedy
by looking to the attempt statute. In Rebilas, by contrast, the underlying
crime was overbroad for encompassing conduct not proscribed by the
generic offense. 527 F.3d at 785-87 (holding that Arizona’s attempted
public indecency to a minor offense is not coextensive with attempted sexual abuse of a minor because under Arizona law, inter alia, “the minor
involved does not need to be touched, nor does the minor even need to be
aware of the offender’s conduct”). Such overbreadth as to conduct could
never be remedied by looking to the attempt statute.
Here, by contrast, the underlying offense is overbroad with respect to
mens rea, and that type of overbreadth can be remedied by looking to the
attempt statute.

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determine whether Gomez-Hernandez’s prior attempted
aggravated assault conviction justifies enhancing his sentence
under the Guidelines. Under the categorical approach, the
enhancement is justified if the full range of conduct encompassed by the statutory definition of the prior offense is also
prohibited by the generic offense. See United States v. Rivera,
658 F.3d 1073, 1076-77 (9th Cir. 2011). Looking with myopic focus at Arizona’s definition of completed aggravated
assault—even though Gomez-Hernandez was convicted of
attempted aggravated assault—would obstruct our ability to
determine whether, as a matter of law, his state conviction
necessarily rested on the same elements as required by the
generic offense.
[5] We know with certainty that attempted aggravated
assault under Arizona law requires specific intent. See Kiles,
857 P.2d at 1224. Generic aggravated assault requires only a
heightened extreme indifference form of recklessness. See
Esparza-Herrera, 557 F.3d at 1024-25. Consequently,
Gomez-Hernandez’s attempted aggravated assault conviction
was not based on a lesser mens rea than the generic offense.
2
Gomez-Hernandez also argues that his conviction for
attempted aggravated assault does not categorically qualify as
a crime of violence because Arizona’s aggravated assault statute criminalizes non-violent conduct, see State v. Fierro, 804
P.2d 72, 83 (Ariz. 1990) (“[I]t would be possible to commit
aggravated assault without the use or threat of violence.”). As
an initial matter, we must consider whether the use or threat
of violence is an element of generic aggravated assault. It is
not.
[6] “We derive the meaning of an enumerated Guidelines
crime not from the offense’s ordinary meaning but rather by
surveying the Model Penal Code and state statutes to determine how they define the offense.” Esparza-Herrera, 557

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F.3d at 1023. Neither Gomez-Hernandez nor the Government
has provided us with a survey of the Model Penal Code and
state statutes.7 Based on our independent review, the threat or
use of violence is not an element of the Model Penal Code’s
definition of aggravated assault, Model Penal Code § 211.1,
or a majority of state statutes. We therefore conclude that the
threat or use of violence is not an element of generic aggravated assault.
Nevertheless, the question remains whether Arizona’s
aggravating factors are coextensive with those of the generic
offense. If not, then conviction of attempted aggravated
assault in Arizona would not categorically match the generic
crime of attempted aggravated assault, because the defendant
did not necessarily attempt to commit all of the elements of
generic aggravated assault.
Under the Model Penal Code, “[a] person is guilty of
aggravated assault if he: (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 (emphases
added). Consistent with this definition, the Eleventh Circuit
concluded that “[t]he generic offense of ‘aggravated assault’
7

Gomez-Hernandez cites only prior opinions where the federal statute
at issue, by its own terms, required the threat or use of violence. See, e.g.,
Suazo Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir. 2008) (applying
18 U.S.C. § 16(a), which defines “crime of violence” as “an offense that
has as an element the use, attempted use, or threatened use of physical
force against the person or property of another”). These cases are not relevant to our analysis here. Aggravated assault is an enumerated offense
under the Sentencing Guidelines, and “ ‘enumerated offenses . . . are
always classified as “crimes of violence,” regardless of whether the prior
offense expressly has as an element the use, attempted use, or threatened
use of physical force against the person of another.’ ” United States v.
Bolanos-Hernandez, 492 F.3d 1140, 1146 (9th Cir. 2007) (quoting USSG,
app. C, vol. II, amd. 658, at 401-02 (Nov. 1, 2003)).

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under § 2L1.2 of the Guidelines involves a criminal assault
accompanied by the aggravating factors of either the intent to
cause serious bodily injury to the victim or the use of a deadly
weapon.” United States v. Palomino Garcia, 606 F.3d 1317,
1332 (11th Cir. 2010) (relying on most states’ definitions of
aggravated assault, as well as learned treatises and the Model
Penal Code).
[7] We agree with the Eleventh Circuit that (1) intent to
cause serious bodily injury, and (2) use of a deadly weapon
to attempt to cause bodily injury (serious or not), are both
generic aggravating factors. Arizona criminalizes additional
aggravating factors, such as entering the private home of
another with the intent to commit the assault, Ariz. Rev. Stat.
§ 13-1204(A)(5), and the status of the victim (e.g., police officers, firefighters, teachers, health care practitioners, prosecutors, state or municipal park rangers, and public defenders),
id. § 13-1204(A)(8).8 There is no need for us to decide
whether the numerous other factors enumerated in the Arizona statute are coextensive with the generic offense, because
the record of conviction demonstrates that GomezHernandez’s attempted aggravated assault conviction necessarily rested on the specific intent to use a deadly weapon in
carrying out the assault.
[8] Gomez-Hernandez conceded that the offense involved
a deadly weapon or dangerous instrument. In particular, he
pled guilty to a dangerous felony allegation, which requires
“the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument or the intentional or knowing
infliction of serious physical injury upon another,” Ariz. Rev.
Stat. § 13-604(P) (2001). The indictment made clear which of
8

Because it is not entirely clear which subsection of Ariz. Rev. Stat.
§ 13-1203 applies to Gomez-Hernandez’s Arizona conviction, we consider
the entire statute. See United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006) (“We look only to the particular subdivision of the statute
under which the defendant was convicted.”).

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the two prongs was involved, as it alleged that he “us[ed] a
carpet knife/razor, a deadly weapon or dangerous instrument.”
And Gomez-Hernandez admitted during the plea colloquy
that he pointed a knife at G.R. at the same time he cut A.R.
with a knife.9
[9] On this record, it is clear that his conviction for
attempted aggravated assault rested on the specific intent to
carry out a generic aggravating factor, namely, the use of a
deadly weapon. See Aguila-Montes de Oca, 655 F.3d at 936
(“[T]he purpose of the modified categorical approach is to
determine (1) what facts the state conviction necessarily
rested on and (2) whether these facts satisfy the elements of
the generic offense.”).
IV
[10] The district court properly applied a sixteen-level
enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on
Gomez-Hernandez’s deportation following his Arizona conviction for attempted aggravated assault. The sentence
imposed by the district court is therefore
AFFIRMED.

9

Arizona defines “deadly weapon” as “anything designed for lethal
use,” Ariz. Rev. Stat. § 13-105(13) (2001), and “dangerous instrument” as
“anything that under the circumstances in which it is used, attempted to
be used or threatened to be used is readily capable of causing death or serious physical injury,” id. § 13-105(11). “A knife is a deadly weapon.” State
v. Williams, 515 P.2d 849, 850-51 (Ariz. 1973); see also Model Penal
Code § 210.0(4) (“‘[D]eadly weapon’ means any firearm or other weapon,
device, instrument, material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used is known to be
capable of producing death or serious bodily injury.”).