                                                 [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-14076                ELEVENTH CIRCUIT
                                                            MAY 11, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D. C. Docket No. 09-00103-CR-T-24-EAJ

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

EMILIO LOAEZA-MONTES,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                             (May 11, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:
      In this case, appellant Emilio Loaeza-Montes plead guilty to both counts of

an indictment, which charged him in Count One with transporting illegal aliens, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i), and in Count Two with

reentering the United States without permission after deportation for an

“aggravated felony offense of aggravated assault . . . in the Superior Court of

Arizona, in violation of 8 U.S.c. § 1326(a) and (b)(2). The district court sentenced

him to concurrent prison terms of 60 months, with terms of supervised release of

60 months on Count One and 36 months on Count Two. He now appeals his

Count Two sentence, arguing that the district court erred, first, in relying on the

presentence investigation report (“PSI”), and, then, in determining the total

offense level on Count Two under the Sentencing Guidelines. That error occurred,

he argues, when the court enhanced the Count Two base offense level by 16 levels

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the theory that his prior Arizona

aggravated assault conviction constituted a “crime of violence” within the

meaning of the Guidelines. We consider these arguments in turn.

                                         I.

      Appellant contends that the district court erred in relying on the PSI in

determining that his Arizona aggravated assault conviction constituted a crime of

violence under § 2L1.2(b)(1)(A) or 18 U.S.C. § 16 because the PSI did not

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constitute a permissible evidentiary source under Shepard v. United States, 544

U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). He submits that Shepard

required that the court’s probation office, in preparing the PSI, have access to the

charging document (to which he had pled guilty), the terms of his guilty plea, and

a transcript of the plea hearing, which would recite the facts underlying the

aggravated assault offense. Given this PSI deficiency and the district court’s

failure to conduct a purely categorical approach in classifying the aggravated

assault offense, as required by Taylor v. United States, 495 U.S. 575, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990), and Shepard, the court could not determine that the

aggravated assault to which he had pled guilty was “crime of violence” under

U.S.S.G. § 2L1.2. Accordingly, this court should vacate the Count Two sentence

and remand the case for resentencing on Count Two.

      “A sentencing court’s findings of fact may be based on undisputed

statements in the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir.

2006). “[C]hallenges to the facts contained in the PSI must be asserted with

specificity and clarity.” Id. A defendant is deemed to have admitted the facts

constituting relevant conduct and other facts about a prior offense contained in the

PSI, and any addendum to the PSI, unless he objects to such facts when, as here,

he is given an opportunity to do so. Id. at 833-34. A defendant’s argument at

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sentencing that a prior conviction should not be classified as a violent felony does

not constitute a dispute regarding the facts underlying that conviction. Id. at 833.

      Because appellant did not (1) object to the reliability of the documents

referenced in the PSI, (2) argue that the documents did not show the facts

underlying his aggravated assault conviction, or (3) object to the Government’s

characterization of the crime as an aggravated assault with a deadly weapon, he is

deemed to have admitted those facts.

                                         II.

      In relevant part, appellant argues that his Arizona aggravated assault

conviction does not qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii)

merely because it is labeled as such by the state of Arizona. According to him,

Taylor mandates that in determining whether a predicate offense qualifies as a

crime of violence, a district court must use a “categorical” approach rather than

relying on the label a state places on a crime. He urges us to reach the same

conclusion the Ninth Circuit did in United States v. Esparza-Herrera, 557 F.3d

1019 (9th Cir. 2009), that, based on a categorical analysis, because the Arizona

statute permits a conviction upon a showing of recklessness, while the Model

Penal Code requires a showing of at least recklessness “under circumstances

manifesting extreme indifference to the value of human life,” the mens rea

                                          4
requirement of the Arizona statute is substantially broader than the Model Penal

Code’s. Thus, he claims that a conviction for aggravated assault under the

Arizona statute could not support a § 2L1.2(b)(1)(A)(ii) enhancement because

such a conviction could be obtained through a showing of ordinary recklessness.

Appellant contends that without any Shepard-approved charging documents, it

was impossible for the district court to know whether his conduct was committed

“intentionally, knowingly or recklessly.” He notes that even if this court

concludes that it is appropriate to consider the PSI’s description of his offense

conduct, his offense was more akin to a driving under the influence (“DUI”)

offense than reckless conduct.1

       We review de novo the issue of whether a prior crime is a “crime of

violence” for purposes of an offense level enhancement pursuant to

§ 2L1.2(b)(1)(A)(ii). United States v. Wilson, 392 F.3d 1243, 1245 (11th Cir.

2004). The Sentencing Guidelines apply a 16-level enhancement to a defendant

convicted of a 8 U.S.C. § 1326 violation when that “defendant previously was

deported” after a conviction for a prior “crime of violence.” U.S.S.G. §


       1
         The facts underlying the Arizona conviction are these: Appellant was intoxicated,
having consumed six to seven shots of liquor at home, then drinking at least 15 beers at a club.
Having consumed the alcohol, he drove his vehicle through a red light and caused a four-vehicle
crash (which resulted in the hospitalization of two of these vehicle’s occupants). He and his
passenger fled from the scene on foot and soon were caught by the police.

                                               5
2L1.2(b)(1)(A)(ii). The commentary to the Guidelines defines a “crime of

violence” as (1) any of a list of enumerated offenses that includes “aggravated

assault,” or (2) “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.” Id. at § 2L1.2 cmt. n. 1(B)(iii); see also United States v.

Martinez, 584 F.3d 1022, 1026 n.1 (11th Cir. 2009) (stating that application notes

are generally authoritative). The commentary does not define aggravated assault,

but Amendment 658 to that guideline, effective in 2003, describes that the purpose

of the enumeration of certain “crimes of violence” was to “make clear that the

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.” Amendment 658

to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (emphasis added).

      In determining whether burglary of a dwelling under California law was a

crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii), we held that

because that crime was enumerated in Application Note 1(b)(ii)(II) (2002), it was

a crime of violence even though it lacked an element regarding the use of physical

force. United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003) (citing

with approval United States v. Rayo-Valdez, 302 F.3d 314, 318-20 (5th Cir. 2002),

                                           6
for the proposition that all offenses listed in Application Note 1(B)(ii)(II) were

crimes of violence, regardless of their elements under various state laws). Shortly

thereafter, in United States v. Wilson, we addressed a defendant’s claim that his

prior conviction for aggravated child abuse, which he conceded had a physical-

force element that satisfied § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii), also was required

to be included in the enumerated list of offenses in that comment to qualify as a

“crime of violence.” 392 F.3d at 1245-46. In rejecting that claim, we held that “a

prior conviction constitutes a ‘crime of violence’ if it either includes as an element

of the offense ‘the use, attempted use or threatened use of physical force against

the person of another’ or is listed as one of the offenses detailed” in that

application note. Id. at 1246 (emphasis added).

      Because aggravated assault is included in the list of offenses detailed in

§ 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii), appellant’s conviction for aggravated assault

under Arizona law per se qualifies as a “crime of violence” under

§ 2L1.2(b)(1)(A)(ii).

      AFFIRMED.




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