USA v. Miguel Perez-Silvan

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, JOHN B. OWENS and DANA L. CHRISTENSEN) No. 16-10177 is AFFIRMED and No. 16-10205 is DISMISSED. Judge: DFO Authoring, Judge: JBO Concurring, FILED AND ENTERED JUDGMENT. [10490479] [16-10177, 16-10205]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL PEREZ-SILVAN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL PEREZ-SILVAN, AKA Miguel
Perez-Silva, AKA Miguel SilvanPerez,
Defendant-Appellant.

No. 16-10177
D.C. No.
4:15-cr-01805DCB-CRP-1

No. 16-10205
D.C. No.
4:10-cr-02506DCB-CRP-1
OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, Senior District Judge, Presiding

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UNITED STATES V. PEREZ-SILVAN
Submitted May 11, 2017 *
Pasadena, California
Filed June 28, 2017
Before: Diarmuid F. O’Scannlain and John B. Owens,
Circuit Judges, and Dana L. Christensen,** Chief District
Judge.
Opinion by Judge O’Scannlain;
Concurrence by Judge Owens
SUMMARY ***
Criminal Law

The panel affirmed a sentence for illegal reentry after
deportation, and dismissed an appeal from a judgment
revoking supervised release for a prior illegal reentry
conviction.
The panel held that even if the defendant’s appeal from
the judgment revoking supervised release had been timely,

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
***

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UNITED STATES V. PEREZ-SILVAN

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he waived his ability to contest the revocation by neglecting
to brief the merits.
The panel held that the district court did not err by
applying a 16-level crime-of-violence enhancement to the
defendant’s illegal reentry sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015) based on his prior aggravated
assault conviction under Tennessee Code Annotated § 3913-102.
The panel explained that because §§ 39-13-102(a)(1) and
(a)(2) carry different penalties, they necessarily contain
distinct elements, rather than alternative means of
committing aggravated assault, and that § 39-13-102(a) is
therefore divisible into two crimes. Looking to the charging
documents, the panel observed that the defendant was
convicted under § 39-13-102(a)(1), which criminalizes
intentional or knowing assault, rather than § 39-13102(a)(2), which covers reckless assault. The panel
therefore concluded that the defendant’s claim that his
statute of conviction does not qualify as a crime of violence
because it can be violated by recklessness necessarily fails.
The panel also explained that although an offensive touching
under § 39-13-101(a)(3) can satisfy the second element of
§ 39-13-102(a)(1), an aggravated assault conviction further
requires that the offensive touching “[c]ause[] serious bodily
injury to another” or “use[] or display[] a deadly weapon,”
both of which entail the use of violent force.
Concurring, Judge Owens applauded the United States
Sentencing Commission for reworking § 2L1.2, which has
been simplified since the defendant was sentenced; he urged
the Commission to continue to simplify the Guidelines to
avoid frequent complicated sentencing adventures.

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UNITED STATES V. PEREZ-SILVAN
COUNSEL

Myrna R. Beards, Law Office of Myrna R. Beards, Tucson,
Arizona, for Defendant-Appellant.
Ryan P. Dejoe, Assistant United States Attorney; Robert L.
Miskell, Appellate Chief; United States Attorney’s Office,
Tucson, Arizona; for Plaintiff-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a “crime of violence”
sentencing enhancement to a sentence for illegal reentry
after deportation can be based on a prior Tennessee state
conviction for aggravated assault.
I
Miguel Perez-Silvan, a citizen of Mexico, was charged
with illegal reentry after deportation in violation of 8 U.S.C.
§ 1326, enhanced by § 1326(b)(2), on October 14, 2015,
when he was found near Quijotoa, Arizona on September 17,
2015, following a previous deportation from the United
States on August 19, 2015. On December 8, 2015, PerezSilvan pled guilty to the indictment without a plea
agreement.
On December 29, 2015, the government filed a motion
to revoke Perez-Silvan’s supervised release for a prior illegal
reentry conviction from 2011. On January 29, 2016, PerezSilvan appeared with counsel and admitted to violating this
supervised release agreement.

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At sentencing on April 11, 2016, the district court found
that Perez-Silvan had an offense level of twenty-one for the
illegal reentry charge, based in part on a sixteen-level “crime
of violence” enhancement under U.S.S.G. §2L1.2 for a prior
conviction of aggravated assault. In 2005, Perez-Silvan had
pled guilty to an indictment charging that he “did unlawfully
and intentionally or knowingly cause bodily injury to Jose
Molina, by use of a deadly weapon, in violation of Tennessee
Code Annotated § 39-13-102.” Applying the offense level of
twenty-one and a criminal history of six, the district court
concluded that the Guideline range for the illegal reentry
violation was 77–96 months; it imposed a sentence of
seventy-seven months.
For the supervised release violation, the district court
calculated a Guideline range of 21–24 months, and it
imposed a sentence of twenty-one months to run
consecutively to the illegal reentry sentence.
Perez-Silvan filed a timely notice of appeal (No. 1610177), on April 19, 2016, from the district court’s judgment
on the illegal reentry conviction. His notice of appeal (No.
16-10205) from the district court’s judgment on the
supervised release violation, filed on May 12, 2016, was
seventeen days late.
II
Perez-Silvan acknowledges that under Federal Rule of
Appellate Procedure 4(b)(1)(A)(i) his appeal in No. 1610205 was untimely. Nonetheless, following United States
v. Ono, 72 F.3d 101, 103 (9th Cir. 1995), he requests that we
issue a limited remand to the district court to determine
whether there was “excusable neglect” for his late appeal.

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However, as the government observes, Perez-Silvan has
otherwise failed to prosecute the appeal in No. 16-10205.
Federal Rule of Appellate Procedure 28(a) requires a party’s
opening brief to contain “a statement of the issues presented
for review,” and an “argument . . . [with] appellant’s
contentions and the reasons for them.” Indeed, “on appeal,
arguments not raised by a party in its opening brief are
deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999); see also Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994) (“We review only issues which are argued
specifically and distinctly in a party’s opening brief.”).
Perez-Silvan offers no arguments for why the district
court’s decision to revoke his supervised release was in
error, nor does he list it as an issue in his opening brief. By
neglecting to brief the merits of the issue, he has not adhered
to Rule 28. Thus, there is no need to remand to the district
court to determine if Perez-Silvan’s failure to file a timely
appeal was excusable. Even if his appeal had been timely,
Perez-Silvan has waived his ability to contest the revocation
of his supervised release. Thus, the appeal in No. 16-10205
must be dismissed. See Ninth Circuit Rule 42-1.
III
In No. 16-10177, the illegal reentry conviction, PerezSilvan contends that the district court erred by imposing a
sentencing
enhancement
pursuant
to
U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), which provides that a defendant’s base
offense level should be increased by sixteen “[i]f the
defendant previously was deported . . . after . . . a conviction
for a felony that is . . . a crime of violence.” 1 Perez-Silvan
1
Perez-Silvan was sentenced under the 2015 version of the
Sentencing Guidelines, so all references to the Guidelines refer to that

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argues that his prior conviction for aggravated assault in
violation of Tennessee Code Annotated § 39-13-102 was not
a crime of violence for purposes of this provision. 2
A
Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a conviction is a
crime of violence “if it either (1) constitutes one of the
crimes listed in the ‘enumerated offense’ prong of the
definition, or (2) ‘has an element the use, attempted use, or
threatened use of physical force against the person of
another’ under the definition’s second clause, referred to as
the ‘element’ prong or test.” United States v. Grajeda, 581
F.3d 1186, 1189–90 (9th Cir. 2009) (quoting U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii)).
To determine whether a prior state conviction qualifies
as a crime of violence under either prong, we employ the
categorical approach set out by the Supreme Court in Taylor
v. United States, 495 U.S. 575, 602 (1990). Thus, we ask
version. The Guidelines have since been amended, removing subsection
§ 2L1.2(b)(1)(A)(ii) entirely, and now base enhancements on the length
of a prior sentence. See U.S.S.G. § 2L1.2(b) (2016).
2
Although Perez-Silvan acknowledged that his aggravated assault
conviction met the definition for a crime of violence before the district
court, “[w]e are not bound by a party’s concession as to the meaning of
the law.” United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en
banc). Nonetheless, our review of his sentence is only for plain error. See
United States v. Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003)
(“[W]here a party fails to raise an objection below, an appellate court
may entertain such an objection ‘when plain error has occurred and an
injustice might otherwise result.’” (quoting United States v. FloresPayon, 942 F.2d 556, 558 (9th Cir. 1991))). However, whether a prior
conviction qualifies as a crime of violence under U.S.S.G. § 2L1.2(b) is
a legal question that we review de novo. United States v. Guzman-Mata,
579 F.3d 1065, 1068 (9th Cir. 2009).

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whether the statute of conviction “is categorically a crime of
violence by assessing whether the ‘full range of conduct
covered by [the statute] falls within the meaning of that
term.’” Grajeda, 581 F.3d at 1189 (alteration in original)
(quoting United States v. Juvenile Female, 566 F.3d 943,
946 (9th Cir. 2009)). A statute of conviction that punishes
conduct that is not covered by the federal definition of a
“crime of violence” cannot be a “crime of violence.” United
States v. Benally, 843 F.3d 350, 352 (9th Cir. 2016).
If the statute does not qualify as a categorical crime of
violence, we ask whether it is “a so-called ‘divisible
statute.’” Descamps v. United States, 133 S. Ct. 2276, 2281
(2014). A statute is divisible if it lists “multiple alternative
elements” as opposed to “various factual means of
committing a single element.” Mathis v. United States, 136
S. Ct. 2243, 2249 (2016).
Where a statute is divisible, we apply the “modified
categorical approach” under which we “consult a limited
class of documents, such as indictments and jury
instructions, to determine which alternative element formed
the basis of the defendant’s prior conviction.” Descamps,
133 S. Ct. at 2281. Then we “do what the categorical
approach demands: compare the elements of the crime of
conviction (including the alternative element used in the
case) with the elements of the generic crime.” Id.
B
At the time of Perez-Silvan’s conviction, Tennessee
Code Annotated § 39-13-102 provided in relevant part:
(a) A person commits aggravated assault
who:

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(1) Intentionally or knowingly commits
an assault as defined in § 39-13-101
and:
(A) Causes serious bodily injury to
another; or
(B) Uses or displays a deadly weapon;
or
(2) Recklessly commits an assault as
defined in § 39-13-101(a)(1) and:
(A) Causes serious bodily injury to
another; or
(B) Uses or displays a deadly weapon.
And Tennessee Code Annotated § 39-13-101 provided
in relevant part:
(a) A person commits assault who:
(1) Intentionally,
knowingly
or
recklessly causes bodily injury to
another;
(2) Intentionally or knowingly causes
another to reasonably fear imminent
bodily injury; or
(3) Intentionally or knowingly causes
physical contact with another and a
reasonable person would regard the

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contact as extremely offensive or
provocative.
C

With respect to the elements prong, Perez-Silvan
maintains that his conviction for aggravated assault in
violation of Tennessee Code Annotated § 39-13-102(a) does
not have “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).
1
First, Perez-Silvan argues that Tennessee Code
Annotated § 39-13-102(a) is indivisible and overbroad.
Following our decisions in United States v. Garcia-Jimenez,
807 F.3d 1079, 1087 (9th Cir. 2015), and Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc),
Perez-Silvan contends that because § 39-13-102(a) covers
reckless behavior, his aggravated assault conviction cannot
be a crime of violence.
a
Perez-Silvan bases his indivisibility argument on
Tennessee caselaw. In State v. Hammonds, 30 S.W.3d 294,
298 (Tenn. 2000), the Tennessee Supreme Court described
aggravated assault under § 39-13-102(a) as “consist[ing] of
three elements: (1) mens rea; (2) commission of an assault
as defined in 39-13-101; and (3) (a) serious bodily injury or
(b) use or display of a deadly weapon.” The issue in
Hammonds was whether an aggravated assault indictment
which did not specify the type of simple assault committed
in violation of Tennessee Code Annotated § 39-13-101
(element two) could be sufficient. Id. The Tennessee

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Supreme Court concluded that it was not necessary for the
indictment to specify the type of simple assault committed
because each of the three ways to commit assault under § 3913-101 were merely different “means” of fulfilling the
second element of aggravated assault. Id. at 300. Under
Tennessee law, “an indictment need not allege the specific
theory or means by which the State intends to prove each
element of an offense.” Id.
Because Hammonds refers to various “means” of
committing the second element of aggravated assault, PerezSilvan argues that all of § 39-13-102(a) is indivisible. This
is a plain misreading of Hammonds, however, which merely
indicates that the second element of aggravated assault is
indivisible. Thus, courts cannot employ the modified
categorical approach to determine which variant of simple
assault under § 39-13-101 the defendant has committed. See
Hammonds, 30 S.W.3d at 302. Hammonds makes no holding
regarding whether § 39-13-102(a) can be divided into two
separate offenses: (a)(1)—intentional and knowing
aggravated assault—and (a)(2)—reckless aggravated
assault.
Hammonds does broadly refer to the first element of
aggravated assault under § 39-13-102(a) as “mens rea.” Id.
at 298. But far from holding that § 39-13-102(a) is
indivisible, Hammonds appears to support the notion that
(a)(1) and (a)(2) are two separate offenses. When outlining
the statute at issue, the Tennessee Supreme Court quoted
§ 39-13-102(a)(1), not § 39-13-102(a)(2). See id. And, the
Court determined that the indictment adequately alleged the
element of mens rea by stating “intentionally and
knowingly.” Id. at 302. Indeed, the Tennessee Supreme
Court never discussed § 39-13-102(a)(2) in Hammonds.
Thus, by analyzing a conviction under § 39-13-102(a)(1),

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apart from § 39-13-102(a)(2), Hammonds implies that the
Tennessee Supreme Court views the two subsections as
different crimes.
Perez-Silvan also relies on State v. Crowe, 914 S.W.2d
933 (Tenn. Crim. App. 1995). In that case, Crowe, who had
been convicted of aggravated assault in violation of § 39-13102, objected to jury instructions stating “that the elements
of aggravated assault are that a defendant has ‘intentionally,
knowingly, or recklessly caused serious bodily injury’ to the
victim.” Id. at 936. The defendant argued that because his
indictment charged him only with “knowingly” committing
assault, he was not on “notice that the jury would be
considering ‘reckless’ as well as ‘knowing’ behavior.” Id.
The court held that the jury instructions were not in error
because under Tennessee law, “recklessness” was
necessarily included in “intentional” and “knowing”
conduct. Id. at 937. Thus, the state could not “prove that an
offense was committed ‘knowingly’ without proving that it
was committed ‘recklessly.’” Id.
Perez-Silvan maintains that based on Crowe “proof that
the defendant . . . acted recklessly—although not alleged in
the indictment—would satisfy the mens rea requirement.”
But this is a misreading of Crowe. While observing that
recklessness is necessarily included in a mens rea of
knowledge, the Tennessee Court of Criminal Appeals
specifically noted that “[t]he converse, however, is not true.
A ‘reckless’ act is not necessarily done ‘knowingly.’”
Crowe, 914 S.W.2d at 937 n.2. Thus, Perez-Silvan’s
argument fails—recklessness cannot be substituted for
knowing or intentional conduct.
Nonetheless, the court in Crowe also noted that all “three
mental states [intentionally, knowingly, and recklessly] are

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listed in Tennessee Code Annotated Section 39-13-101 and
incorporated into Section 39-13-102.” Id. at 936. It further
observed that “[t]he mental elements of assault are stated in
the alternative” and concluded that “[p]roof that appellant
acted knowingly or recklessly would satisfy the mens rea
requirement.” Id. at 938.
While this might appear to support Perez-Silvan’s claim
that § 39-13-102(a) is indivisible, the court in Crowe
appeared to be describing the statute generally. There is no
doubt that § 39-13-102 includes all three mental states: § 3913-102(a)(1) provides that an aggravated assault can be
convicted “[i]ntentionally or knowingly” and § 39-13102(a)(2) provides that an aggravated assault can be
committed “recklessly.” Crowe never addressed whether
§ 39-13-102 could be divided into two separate offenses.
Thus, Crowe is not dispositive.
Perez-Silvan’s reliance on Tennessee caselaw is
misplaced.
b
There is a far simpler answer to the question of
divisibility that Perez-Silvan ignores. As the government
observes, according to Mathis, “[i]f statutory alternatives
carry different punishments, then under Apprendi they must
be elements.” 136 S. Ct. at 2256 (emphasis added).
At the time of Perez-Silvan’s conviction, Tennessee
Code Annotated § 39-13-102(d)(1) provided that an
“[a]ggravated assault under subdivision (a)(1) . . . is a Class
C felony,” while “[a]ggravated assault under subdivision
(a)(2) is a Class D felony.” Thus, because (a)(1) and (a)(2)
carry different penalties, they necessarily contain distinct
elements, rather than alternative means of committing

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aggravated assault. Thus, under Mathis, § 39-13-102(a) is
divisible into two crimes: aggravated assault in violation of
(a)(1) and aggravated assault in violation of (a)(2). 3
c
Because § 39-13-102(a) is divisible, we must look to
Perez-Silvan’s charging documents to determine the offense
for which he was convicted. See Descamps, 133 S. Ct. at
2281. Perez-Silvan’s indictment charged that he “did
unlawfully and intentionally or knowingly cause bodily
injury to Jose Molina, by use of a deadly weapon, in
violation of Tennessee Code Annotated 39-13-102.”
(emphasis added). Thus, there is no question that PerezSilvan was convicted under § 39-13-102(a)(1), which
criminalizes “intentional[] or knowing[]” assault, rather than
§ 39-13-102(a)(2), which covers “reckless[]” assault.
Therefore, because Perez-Silvan was convicted under § 3913-102(a)(1), his claim that his statute of conviction does not
qualify as a crime of violence because it can be violated by
recklessness necessarily fails. 4
2
Next, Perez-Silvan maintains that his aggravated assault
conviction does not qualify as a crime of violence because
Notably, before Mathis, the Sixth Circuit reached the same
conclusion—holding that § 39-13-102 is divisible. See Braden v. United
States, 817 F.3d 926, 933 (6th Cir. 2016).
3

4
The government contends that reckless conduct can qualify as a
crime of violence under the Supreme Court’s recent opinion in Voisine
v. United States, 136 S. Ct. 2272, 2278 (2016). Because we conclude that
§ 39-13-102(a) is divisible and Perez-Silvan was convicted under § 3913-102(a)(1), we need not address this argument.

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the second element of aggravated assault in § 39-13102(a)(1), which requires the commission of a simple assault
in violation of
§ 39-13-101, can be fulfilled by
“[i]ntentionally or knowingly caus[ing] physical contact
with another [that] a reasonable person would regard . . . as
extremely offensive or provocative.” Tenn. Code Ann. § 3913-101(a)(3).
Perez-Silvan is correct that “mere[] touching,” the
common law definition of a battery, does not satisfy the level
of force required for a crime of violence. Johnson v. United
States, 559 U.S. 133, 139–43 (2010). 5 According to
Johnson, in the context of a crime of violence, “physical
force” entails “violent force—that is, force capable of
causing physical pain or injury to another person.” Id. at 140.
Thus, on its own, an offensive “physical contact” in § 39-13101(a)(3) would not qualify as a crime of violence.
Nonetheless, Perez-Silvan misunderstands his statute of
conviction. Even though an offensive touching under § 3913-101(a)(3) can satisfy the second element of § 39-13102(a)(1), an aggravated assault conviction further requires
that the offensive touching “[c]ause[] serious bodily injury
to another” or “use[] or display[] a deadly weapon.” Tenn.
Code. Ann. § 39-13-102(a)(1)(A)–(B); see also Hammonds,
30 S.W.3d at 298. Both of these requirements entail the use
of violent force.
Johnson held this in the context of the Armed Career Criminal Act,
18 U.S.C. § 924(e)(2)(B)(i), but the definition for a violent felony given
there (a crime that “has as an element the use, attempted use, or
threatened use of physical force against the person of another”) is
identical to the definition of a crime of violence in U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii).
5

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a

Since Johnson requires “force capable of causing
physical pain or injury,” 559 U.S. at 140, an offensive
touching under § 39-13-101(a)(3) that causes “serious
bodily injury,” § 39-13-102(a)(1)(A), undoubtedly involves
the use of violent physical force. 6
Indeed, in evaluating similar state statutes, we have
repeatedly found that a simple assault accomplished by
“unlawful touching” which becomes aggravated because it
“results in substantial bodily harm” requires the use of
violent physical force. United States v. Lawrence, 627 F.3d
1281, 1286–88 (9th Cir. 2010); see also Grajeda, 581 F.3d
at 1192. “[A]ssault statutes penalizing intentional conduct
that results or is likely to result in such bodily injury
necessarily require force that ‘go[es] beyond the “least
touching,” and represents “actual force” that is violent in
nature.’” Lawrence, 627 F.3d at 1287 (second alteration in
original) (quoting Grajeda, 581 F.3d at 1192). Indeed, a
defendant charged with “assault resulting in bodily injury,
At the time of Perez-Silvan’s conviction, Tennessee code defined
a “serious bodily injury” as a “bodily injury” involving:
6

(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement;
(E) Protracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty;
Tenn. Code Ann. § 39-11-106(a)(34) (2006).

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necessarily must have committed an act of force in causing
the injury.” United States v. Juvenile Female, 566 F.3d 943,
948 (9th Cir. 2009) (emphasis added).
b
Likewise, an offensive touching that involves “use[] or
display[] [of] a deadly weapon,” the other aggravating factor
under § 39-13-102(a)(1), also necessitates violent physical
force.
As in United States v. Jennen, 596 F.3d 594, 601 (9th
Cir. 2010), “we are not faced with the question of whether
‘mere offensive touching’ meets the force requirement of a
crime of violence, but rather whether unlawful touching
using a deadly weapon meets the force requirement of a
crime of violence. We conclude that it does.” “[E]ven the
least touching with a deadly weapon or instrument is violent
in nature.” Grajeda, 581 F.3d at 1192. And, regardless of
whether the deadly weapon itself touches the victim’s body,
we cannot imagine one using or displaying a deadly weapon
in the course of an offensive touching without threatening
the use of violent force. We have repeatedly held that
“[a]ssault with a deadly weapon . . . necessarily entails the
threatened use of force against the person of another.”
Camacho-Cruz v. Holder, 621 F.3d 941, 943 (9th Cir. 2010)
(emphasis added). 7

While the Nevada law at issue in Camacho-Cruz defined assault
differently, as “intentionally placing another person in reasonable
apprehension of immediate bodily harm,” 621 F.3d at 943 (quoting Nev.
Rev. Stat. § 200.471), Camacho-Cruz made plain that the “threatened
use of force is sufficient for a crime to constitute a crime of violence,”
id.; see also Juvenile Female, 566 F.3d at 947–48. Holding a knife or
7

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18

UNITED STATES V. PEREZ-SILVAN

While this court has held that merely being in possession
of a deadly weapon does not amount to a threat to use force,
United States v. Werle, 815 F.3d 614, 621–22 (9th Cir.
2016), the clear teaching of Jennen, Grajeda, and CamachoCruz is that using or displaying a deadly weapon does.
Therefore, an offensive touching that is accomplished while
using or displaying a deadly weapon in violation of § 39-13102(a)(1)(B) involves violent physical force.
c
There is no dispute that the other means of committing a
simple assault under Tennessee Code Annotated § 39-13101(a)—(1) “caus[ing] bodily injury to another” or (2)
“caus[ing] another to reasonably fear imminent bodily
injury”—entail the use or threatened use of physical force
when they result in “serious bodily injury” or involve the
“use[] or display[] of a deadly weapon.” Tenn. Code. Ann.
§ 39-13-102(a). Aggravated assault under Tennessee Code
Annotated § 39-13-102(a)(1) is a crime of violence for
purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii). 8
IV
No. 16-10177 is AFFIRMED and No. 16-10205 is
DISMISSED.

gun while poking a person in the back is the quintessential example of a
threat of violence.
Because we hold that Tennessee Code Annotated § 39-13102(a)(1) is a crime of violence under the element prong, there is no need
to address whether it is also a crime of violence under the enumerated
offense prong.
8

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UNITED STATES V. PEREZ-SILVAN

19

OWENS, Circuit Judge, concurring:
I fully join Judge O’Scannlain’s opinion, which
faithfully applies controlling law to the question at hand.
But what a bad hand it is – requiring more than 16 pages to
resolve an advisory question. I applaud the United States
Sentencing Commission for reworking U.S.S.G. § 2L1.2 to
spare judges, lawyers, and defendants from the wasteland of
Descamps. See U.S.S.G. supp. app. C, amend. 802 (2016);
U.S.S.G. § 2L1.2(b) (2016). I continue to urge the
Commission to simplify the Guidelines to avoid the frequent
sentencing adventures more complicated than reconstructing
the Staff of Ra in the Map Room to locate the Well of the
Souls. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83
(9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of
the Lost Ark (Paramount Pictures 1981).