                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 14-10484
                Plaintiff-Appellee,
                                            D.C. No.
                v.                       4:14-cr-00973-
                                          CKJ-DTF-1
ALBERTO GARCIA-JIMENEZ, AKA
Nelih Alexis Miranda,
              Defendant-Appellant.         OPINION


     Appeal from the United States District Court
              for the District of Arizona
     Cindy K. Jorgenson, District Judge, Presiding

               Argued and Submitted
    September 15, 2015—San Francisco, California

               Filed November 19, 2015

    Before: William A. Fletcher, Marsha S. Berzon,
          and Carlos T. Bea, Circuit Judges.

               Opinion by Judge Berzon
2             UNITED STATES V. GARCIA-JIMENEZ

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence for illegal reentry into the
United States, and remanded for resentencing, in a case in
which the district court increased the defendant’s base offense
level on the ground that his prior New Jersey aggravated
assault conviction constituted a categorical “crime of
violence”under U.S.S.G. § 2L1.2.

    The panel held that the provision of the New Jersey
statute under which the defendant was convicted, N.J. Stat.
Ann. § 2C:12-1(b)(1), does not qualify as a federal generic
aggravated assault, and therefore is not a “crime of violence,”
both because (1) § 2C:12-1(b)(1) punishes conduct
committed with only extreme indifference recklessness and
is therefore broader than the general federal offense; and
(2) New Jersey’s definition of “attempt” is broader than the
federal generic definition in that New Jersey, which
criminalizes attempts comprised of solely preparatory acts,
has specifically rejected the prevalent “probable desistance”
test.

    The panel concluded that the error was not harmless.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. GARCIA-JIMENEZ                 3

                        COUNSEL

Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.

Lawrence C. Lee (argued) and Lauren G. Labuff, Assistant
United States Attorneys, John S. Leonardo, United States
Attorney, Robert L. Miskell, Appellate Chief, United States
Attorney’s Office, District of Arizona, Tucson, Arizona, for
Plaintiff-Appellee.


                         OPINION

BERZON, Circuit Judge:

    Alberto Garcia-Jimenez pled guilty to illegal reentry into
the United States in violation of 8 U.S.C. § 1326. At
sentencing, the district court increased Garcia-Jimenez’s base
offense level because of a prior aggravated assault conviction
in New Jersey. The court concluded that the conviction
constituted a categorical “crime of violence” under U.S.
Sentencing Guidelines section 2L1.2. Increasing the base
offense level for illegal reentry by 16 levels pursuant to
section 2L1.2 increased the Guidelines range from 10-to-16
months to 46-to-57 months. The court sentenced Garcia-
Jimenez to serve 46 months, but stated, with no further
explanation, that, even if the aggravated assault conviction
was not a crime of violence, it would impose the same
sentence.

   On appeal, Garcia-Jimenez argues that his prior
conviction is not a crime of violence because: (1) contrary to
the New Jersey statute, the generic federal offense of
4           UNITED STATES V. GARCIA-JIMENEZ

aggravated assault requires a mens rea greater than
recklessness under circumstances manifesting extreme
indifference to the value of human life (“extreme indifference
recklessness”); and (2) New Jersey’s definition of “attempt,”
an element alternatively incorporated into the statute of
conviction, is broader than the federal generic definition of
“attempt.”

    We hold that, for both reasons, the provision of the New
Jersey statute under which Garcia-Jimenez was convicted
does not qualify as federal generic aggravated assault and
therefore is not a “crime of violence.” Because the district
court’s Guidelines error was not harmless, we vacate the
sentence and remand to the district court for resentencing.

                              I.

     Garcia-Jimenez is a citizen of Honduras. In 2009, he was
arrested in New Jersey and indicted on several counts arising
from an incident in which, after getting into an argument
while drunk during a card game, he stabbed another card
player. He pled guilty to aggravated assault, count one of the
indictment, which charged that he “attempt[ed] to cause
serious bodily injury . . . and/or [] purposely or knowingly
cause[d] serious bodily injury . . . and/or under circumstances
manifesting extreme indifference to the value of human life,
[] recklessly cause[d] serious bodily injury to [another.]” The
language of the indictment closely tracked the New Jersey
aggravated assault statute, which reads: “A person is guilty of
aggravated assault if he: . . . [i] Attempts to cause serious
bodily injury to another, or [ii] causes such injury purposely
or knowingly or [iii] under circumstances manifesting
extreme indifference to the value of human life recklessly
causes such injury . . . .” N.J. Stat. Ann. § 2C:12-1(b)(1).
                UNITED STATES V. GARCIA-JIMENEZ                         5

Documents from the New Jersey proceedings do not specify
which of the three prongs of the New Jersey statute Garcia-
Jimenez was convicted of violating.

   Garcia-Jimenez was sentenced for the aggravated assault
conviction and served time in prison, after which, in
September 2013, the U.S. Department of Homeland Security
deported him. He was found in Arizona in May 2014 and
charged with illegal reentry in violation of section 1326(a), as
enhanced by subsection (b)(2).1

    After Garcia-Jimenez pled guilty, and in anticipation of
sentencing, the U.S. Probation Office prepared a pre-sentence
report (“PSR”). The PSR recommended that the district court
depart upward from the Guidelines sentence because Garcia-
Jimenez’s prior conviction understated the seriousness of the
offense for which he had been convicted. Garcia-Jimenez

 1
     Section 1326(a) provides, in relevant part, that:

          [s]ubject to subsection (b) of this section, any alien
          who–

               (1) has been . . . deported . . . while an order of
               exclusion, deportation, or removal is outstanding,
               and thereafter

               (2) enters, attempts to enter, or is at any time found
               in, the United States . . .

          shall be fined under Title 18, or imprisoned not more
          than 2 years, or both.

     Section 1326(b)(2) provides that in the case of any alien “whose
removal was subsequent to a conviction for commission of an aggravated
felony, such alien shall be fined under [Title 18], imprisoned not more
than 20 years, or both.”
6              UNITED STATES V. GARCIA-JIMENEZ

objected to the PSR, arguing that, in proposing the above-
Guidelines sentence, the probation officer improperly relied
on statements from the police report describing the incident.
The Probation Office then revised the PSR, dropping the
understated-offense enhancement and instead recommending
a 16-level crime-of-violence enhancement under Guidelines
section 2L1.2. That section provides: “If the defendant
previously was deported . . . after . . . a conviction for a
felony that is . . . a crime of violence . . . increase [the base
offense level] by 16 levels . . . .” U.S.S.G. § 2L1.2(b)(1)(A).
The comment to that section enumerates “aggravated assault”
as a crime of violence. See id. cmt. n.1(B)(iii).2

    The PSR acknowledged that under the categorical
approach, the aggravated assault conviction probably was not
a categorical crime of violence. But it nonetheless
recommended the court apply the enhancement using the

    2
   The comment provides, in full: “‘Crime of violence’ means any of the
following offenses under federal, state, or local law: Murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses
(including where consent to the conduct is not given or is not legally valid,
such as where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling, or 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).

     Although the United States quoted the “use of physical force” catchall
portion of the comment in their brief on appeal, it made no argument that
Garcia-Jimenez’s prior conviction qualified as a crime of violence under
the use-of-physical-force clause. Accordingly, we treat the issue as
waived and do not address whether an aggravated assault conviction under
the New Jersey statute qualifies as a crime of violence under the use-of-
physical-force clause. See United States v. Castillo-Marin, 684 F.3d 914,
919 (9th Cir. 2012).
             UNITED STATES V. GARCIA-JIMENEZ                         7

contents of judicially noticeable documents from the New
Jersey conviction. Garcia-Jimenez objected to the crime-of-
violence enhancement. At sentencing, the United States
agreed with the PSR that the 16-level enhancement was
warranted, but specifically urged that, under Esparza-Herrera
v. United States, 557 F.3d 1019 (9th Cir. 2009) (per curiam),
Garcia-Jimenez’s conviction does categorically qualify as a
crime of violence.

    The district court considered the PSR as well as judicially
noticeable documents submitted by the United States.
Relying on that information, and on the parties’ arguments,
the court added 16 levels to the base offense level for Garcia-
Jimenez’s reentry offense, thereby exposing him to a
Guidelines range of 46-to-57 months. In support of that
range, the district court stated, citing Esparza-Herrera, that
“possibly categorically [the New Jersey conviction] is a crime
of violence. We don’t even have to do the modified
categorical approach.”3 Further explaining the sentence it
would impose, the court reasoned that the 46-to-57-month
range was “reasonable . . . to satisfy all of the statutory
factors of sentencing, including [Garcia-Jimenez’s] history
and characteristics.”

   Ultimately, the court sentenced Garcia-Jimenez to 46
months’ imprisonment, the low end of the recommended
range. The court explained, “the purpose of this sentence is


  3
    There was some discussion before the district court and in Garcia-
Jimenez’s briefing on appeal regarding application of the modified
categorical approach. On appeal, however, the United States does not
argue that the modified categorical approach applies here and expressly
abjured reliance on that approach at oral argument. We therefore do not
address the modified categorical approach.
8           UNITED STATES V. GARCIA-JIMENEZ

to address safety to the community, public safety, and also to
send a very clear message to [Garcia-Jimenez], that [he]
should not return here ever until [he has] legal permission to
travel here.”

    Without the enhancement, Garcia-Jimenez’s adjusted base
offense level would have resulted in a Guidelines range of 10-
to-16 months. At the conclusion of the sentencing hearing,
the court, without specifically noting the range applicable if
the conviction were not a crime of violence, stated:

       And I also should make a record that in the
       event that the Court incorrectly calculated the
       guidelines and the 16 level enhancement, if
       for some reason that was – that is incorrect
       and it’s actually treated differently or less
       seriously under the guidelines, the Court in its
       discretion would sentence the defendant
       outside of the advisory guidelines because I
       think that . . . 46 months is a reasonable
       sentence no matter . . . whether the aggravated
       assault is a crime of violence under the
       advisory guidelines. So the Court would treat
       it that way in any event and sentence the
       defendant outside of the guidelines if, in fact,
       the Court were unable to reach the guideline
       range of 46 to 57 months due to the nature –
       due to how the criminal history is treated
       under the advisory guidelines.

    Garcia-Jimenez timely appealed his sentence.
            UNITED STATES V. GARCIA-JIMENEZ                 9

                             II.

    This court reviews de novo the district court’s
determination that Garcia-Jimenez’s prior conviction
constitutes a crime of violence under Guidelines section
2L1.2. United States v. Marcia-Acosta, 780 F.3d 1244, 1248
(9th Cir. 2015). As we explained in Marcia-Acosta, a case,
like this one, involving application of the 16-level section
2L1.2 crime-of-violence enhancement:

       The Federal Sentencing Guidelines generally
       apply a 16-level sentencing enhancement to a
       defendant convicted under 8 U.S.C. § 1326
       when that defendant previously was deported
       after a conviction for a crime of violence.
       U.S.S.G. § 2L1.2(b)(1)(A)(ii). The definition
       of “crime of violence” includes the crime of
       “aggravated assault” under state law. See
       U.S.S.G. § 2L1.2, cmt. n.1 (B)(iii). We use
       the categorical approach set forth in Taylor v.
       United States, 495 U.S. [575, 602 (1990)] to
       determine whether a defendant’s prior
       conviction constitutes a “crime of violence”
       for the purposes of U.S.S.G. § 2L1.2(b)(1)(A).
       When the statute of conviction sweeps more
       broadly than the generic crime, a conviction
       under that law cannot categorically count as a
       qualifying predicate, even if the defendant
       actually committed the offense in its generic
       form.

Id. (some internal quotation marks, citations, and alterations
omitted).
10          UNITED STATES V. GARCIA-JIMENEZ

    Here, comparing the elements of the New Jersey
provision under which Garcia-Jimenez was convicted with
the elements of the federal generic definition of aggravated
assault, we conclude, for two independent reasons, that the
two are not a categorical match. See Taylor, 495 U.S. at 602.

                              A.

    New Jersey law punishes an individual for aggravated
assault if he “[a]ttempts to cause serious bodily injury to
another, or causes such injury purposely or knowingly or
under circumstances manifesting extreme indifference to the
value of human life recklessly causes such injury . . . .” N.J.
Stat. Ann. § 2C:12-1(b)(1). Garcia-Jimenez maintains that
this provision is broader than the federal generic definition of
aggravated assault, because it punishes conduct committed
with a mental state of extreme-indifference recklessness
whereas the federal generic definition of aggravated assault
requires the defendant to have acted with a more culpable
mental state—with knowledge, purpose, or intent, for
example.

    Esparza-Herrera resolved a closely related, yet distinct,
issue. See 557 F.3d 1019. In that case, the defendant was
being sentenced for illegal reentry and had previously been
convicted of aggravated assault under Arizona law. See id. at
1021. The statute under which the defendant was convicted
did not match the federal generic definition of aggravated
assault, Esparza-Herrera held, because Arizona law punishes
as aggravated assault offenses committed with a mens rea of
simple recklessness. Id. at 1024. Relying principally on the
Model Penal Code, Esparza-Herrera explained that the
federal generic definition of “aggravated assault requires a
mens rea of at least recklessness ‘under circumstances
            UNITED STATES V. GARCIA-JIMENEZ                 11

manifesting extreme indifference to the value of human life.’”
Id. at 1025 (quoting Model Penal Code §§ 2.02, 2.11.1(a))
(emphasis added). Esparza-Herrera did not hold that
extreme-indifference recklessness is sufficient to satisfy the
federal generic definition of aggravated assault; that question
was not presented to the court, and the court did not resolve
it.

    The United States hangs its hat on Esparza-Herrera,
contending that the case at least implicitly decided that
extreme-indifference recklessness is sufficient to make out
federal generic aggravated assault. But that is just not so. As
noted, the facts of the case did not present the question
whether extreme-indifference recklessness is sufficient, and
the careful “at least” language confirms that the question was
not decided.

    Moreover, Esparza-Herrera did not conduct the analysis
that would have been required to answer the question now
before us. A court applying categorical analysis ordinarily
surveys a number of sources—including state statutes, the
Model Penal Code, federal law, and criminal law
treatises—to establish the federal generic definition of a
crime. See United States v. Garcia-Santana, 774 F.3d 528,
534 (9th Cir. 2014). Most often, “[t]he generic definition of
an offense ‘roughly corresponds to the definitions of the
offense in a majority of the States’ criminal codes.’” Id.
(quoting Taylor, 495 U.S. at 589) (internal alterations
omitted). Yet Esparza-Herrera did not survey state
aggravated assault statutes to decide whether extreme-
indifference recklessness suffices for federal generic
aggravated assault. Rather, the survey conducted in that case
differentiated only between aggravated assault statutes that
require simple recklessness and those that require any greater
12            UNITED STATES V. GARCIA-JIMENEZ

level of mens rea. See 557 F.3d at 1024–25. We cannot
assume that Esparza-Herrera implicitly decided a question
that was not presented and as to which it did not conduct the
appropriate analysis.4

    After conducting the proper analysis, we conclude that a
mens rea of extreme indifference recklessness is not
sufficient to meet the federal generic definition of aggravated
assault. Thirty-three states and the District of Columbia do
not punish as aggravated assaults offenses committed with




   4
      Subsequent case law has confirmed Esparza-Herrera’s holding,
without extending it to aggravated assaults committed with extreme
indifference recklessness. See Marcia-Acosta, 780 F.3d at 1249; Castillo-
Marin, 684 F.3d at 925; United States v. Gomez-Hernandez, 680 F.3d
1171, 1175 (9th Cir. 2012); United States v. Palomino Garcia, 606 F.3d
1317, 1331–32, 1334 n.14 (11th Cir. 2010).

     One of our cases injects some potentially confusing language on this
point. After repeating, citing Esparza-Herrera, that federal generic
aggravated assault requires “at least” extreme indifference recklessness,
Gomez-Hernandez states: “Generic aggravated assault requires only a
heightened extreme indifference form of recklessness.” 680 F.3d at 1177
(emphasis added). This paraphrase of the earlier opinion was not material
to the outcome in Gomez-Hernandez, nor did the case present or analyze
the distinction Garcia-Jimenez makes here. (The predicate offense in
Gomez-Hernandez, attempted aggravated assault under Arizona law,
requires intent, id. at 1176, a mens rea that indisputably satisfies the
federal generic definition.) Gomez-Hernandez therefore had no reason to
do more than refer to Esparza-Herrera as part of a background narrative;
an inaccurate paraphrase included while doing so—after an accurate
quotation—is certainly not a binding holding. Cf. Pac. Operators
Offshore, LLP v. Valladolid, 132 S. Ct. 680, 688 (2012) (declining to
ascribe the weight of a precedential holding to an “ambiguous comment
[] made without analysis in dicta”).
               UNITED STATES V. GARCIA-JIMENEZ                            13

only extreme indifference recklessness.5, 6 In addition, the


  5
    A few notes on this survey: First, aggravated assault statutes vary in
name, form, and substance, so we have selected the statutes or specific
provisions that most closely mirror the aggravated assault provision under
which Garcia-Jimenez was convicted. Second, some state statutes do not
explicitly identify the mens rea required to commit the crime, but state
case law clarifies the mens rea element. See, e.g., State v. Hutchings,
285 P.3d 1183, 1187 (Utah 2012) (explaining that intent is an element of
aggravated assault under Utah law). Third, two states criminalize
“wanton” conduct. See State v. Pope, 414 A.2d 781, 788 (R.I. 1980),
overruled on other grounds as recognized in State v. Gillespie, 960 A.2d
969, 980 (R.I. 2008); Commonwealth v. Pease, 731 N.E.2d 92, 94 (Mass.
App. Ct. 2000). Because the U.S. Supreme Court equates recklessness
with wantonness, Smith v. Wade, 461 U.S. 30, 39 n.8 (1983), this survey
categorizes Rhode Island as a state that punishes reckless aggravated
assaults; Rhode Island’s case law does not define “wanton” to mean
something more than recklessness. By contrast, Massachusetts case law
states that an aggravated assault can be committed by “[w]anton and
reckless conduct,” but equates “wanton and reckless” with “intentional.”
See Commonwealth v. McCann, 178 N.E. 633, 634 (Mass. 1931); Pease,
731 N.E.2d at 94. For that reason, Massachusetts is grouped as a state that
requires more than extreme indifference recklessness to make out
aggravated assault. Finally, where a statute permits conviction for
reckless conduct, but only within a provision that incorporates a further
narrowing element, such as the use of a deadly weapon—so that the
provision does not punish the reckless causing of serious bodily injury,
without more—the statute is treated as requiring a mens rea of more than
extreme indifference recklessness. See, e.g., Alaska Stat. § 11.41.200
(punishing the reckless use of a dangerous instrument, thereby causing
serious physical injury to another, or the reckless causing of serious
physical injury to another as a result of repeated assaults using a
dangerous instrument, but otherwise punishing only the intentional or
knowing causing of serious physical injury); see also N.H. Rev. Stat. Ann.
§ 631.1; Or. Rev. Stat. § 163.175. We note, however, that even looking
at just the mens rea element of state statutes, without considering the
existence of a further narrowing element, the majority of state statutes still
do not punish aggravated assaults committed with only extreme
indifference recklessness.
14            UNITED STATES V. GARCIA-JIMENEZ

common law definition of assault, a general intent offense
that requires a showing of willfulness, has been incorporated
into the federal offense of assault resulting in serious bodily
injury, 18 U.S.C. § 113(a)(6). See United States v. Loera,
923 F.2d 725, 727–28 (9th Cir. 1991).

    Seventeen states and the Model Penal Code do punish
aggravated assaults committed with extreme indifference
recklessness (or a lesser level of mens rea).7

   That a substantial majority of U.S. jurisdictions require
more than extreme indifference recklessness to commit


 6
   See Alaska Stat. § 11.41.200; Ark. Code Ann. § 5-13-204; Cal. Penal
Code § 245; Colo. Rev. Stat. § 18-3-202; D.C. Code § 22-404.01; Fla.
Stat. §§ 784.011, 784.021; Ga. Code Ann. §§ 16-5-20, 16-5-21; Haw. Rev.
Stat. § 707-710; Idaho Code §§ 18-901, 18-902; Ill. Comp. Stat. 720 /
§§ 5.12-1, 5.12-2; Ind. Code § 35-42-2-1.5; Iowa Code §§ 708.1, 708.2;
Kan. Stat. Ann. § 21-5412; La. Rev. Stat. Ann. §§ 14:36, 14:37; Md. Code
Ann., Crim. Law § 3-202; Mass. Gen. Laws Ann. ch. 265, § 13A; Mich.
Comp. Laws Ann. § 750.84; Minn. Stat. §§ 609.02, 609.221; Mo. Rev.
Stat. § 565.050; Mont. Code Ann. § 45-5-202; Neb. Rev. Stat. § 28-308;
Nev. Rev. Stat. § 200.471; N.H. Rev. Stat. Ann. § 631.1; N.M. Stat. Ann.
§ 30-3-2; N.C. Gen. Stat. § 14-32.4; N.D. Cent. Code § 12.1-17-02; Ohio
Rev. Code Ann. § 2903.12; Okla. Stat. tit. 21, §§ 641, 646; Or. Rev. Stat.
§ 163.175; Utah Code Ann. § 76-5-103; Va. Code Ann. § 18.2-51.2;
Wash. Rev. Code § 9A.36.011; W. Va. Code § 61-2-9; Wis. Stat.
§ 940.19.
  7
    See Ala. Code § 13A-6-20; Ariz. Rev. Stat Ann. §§ 13-1203, 1204;
Conn. Gen. Stat. § 53a-59; Del. Code Ann. tit. 11, § 613; Ky. Rev. Stat.
Ann. § 508.010; Me. Stat. tit. 17-A, § 208; Miss. Code Ann. § 97-3-7; N.J.
Stat. Ann. § 2C:12-1(b); N.Y. Penal Law § 120.10; 18 Pa. Cons. Stat.
§ 2702; R.I. Gen. Laws §§ 11-5-2, 11-5-3; S.C. Code Ann. § 16-3-600;
S.D. Codified Laws § 22-18-11; Tenn. Code Ann. §§ 39-13-101, 39-13-
102; Tex. Penal Code Ann. §§ 22.01, 22.02; Vt. Stat. Ann. tit. 13, § 1024;
Wyo. Stat. Ann. § 6-2-502; Model Penal Code § 211.1(a).
              UNITED STATES V. GARCIA-JIMENEZ                         15

aggravated assault is a compelling indication that the federal
generic definition of aggravated assault also requires more
than that mental state. See Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1153 (9th Cir. 2008) (en banc), overruled on
other grounds as recognized by United States v. Rivera-
Constantino, 798 F.3d 900, 904 (9th Cir. 2015) (describing
35 states as “the vast majority of states” for the purposes of
the Taylor analysis); Esparza-Herrera, 557 F.3d at 1025
(holding that 33 jurisdictions is a sufficient consensus to
establish the federal generic definition of a crime).

    The Model Penal Code does point in the opposite
direction—unlike in Estrada-Espinoza and Esparza-Herrera,
where the Model Penal Code and the statutory survey results
were in harmony. But as we have emphasized, the Model
Penal Code, while a helpful tool in the categorical analysis,
does not dictate the federal generic definition of a crime.
United States v. Velasquez-Bosque, 601 F.3d 955, 961 (9th
Cir. 2010); see also, e.g., United States v. Corona-Sanchez,
291 F.3d 1201, 1205 (9th Cir. 2002) (en banc), abrogated on
other grounds as recognized by Avila v. Holder, 454 F. App’x
618, 620 (9th Cir. 2011) (declining to adopt the Model Penal
Code definition of an offense where that definition was
contrary to the meaning of the offense in most states);
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1142 (9th Cir.
2006) (en banc) (Wardlaw, J., dissenting) (explaining that the
majority adopted a federal generic definition of an offense
that was contrary to the Model Penal Code). We also note
that at least one treatise confirms that assault, in its various
forms, is a general intent crime.8 See 6 Am. Jur. 2d Assault


  8
   General intent equates with knowledge. United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc). Accordingly,
aggravated assault crimes referred to in this opinion that require general
16            UNITED STATES V. GARCIA-JIMENEZ

& Battery § 15 (“The requirement of a general intent to do an
act that is inherently dangerous to human life is a general
element of assault and battery. . . . Assault is a general intent
crime.”). The weight of authority—approximately two-thirds
of the states, the common law, federal law, and at least one
treatise, as compared to the Model Penal Code and one-third
of the states—establishes that the federal generic definition of
aggravated assault does not incorporate a mens rea of extreme
indifference recklessness.

    Because the New Jersey provision under which Garcia-
Jimenez was convicted punishes conduct committed with
only extreme indifference recklessness, the New Jersey
definition of aggravated assault is broader than the federal
definition. Consequently, the district court should not have
applied the crime-of-violence enhancement to Garcia-
Jimenez’s sentence.

                                   B.

    The New Jersey statute of conviction also criminalizes
attempts to cause serious bodily injury as aggravated assaults.
Thirty-five U.S. jurisdictions do not incorporate attempts
directly into their aggravated assault provisions.9, 10


intent are treated as requiring a mens rea of more than extreme
indifference recklessness.
  9
    Certain jurisdictions’ statutes only incorporate attempts where those
attempts are coupled with additional narrowing elements, such as the use
of a deadly or dangerous weapon. See, e.g., Ohio Rev. Code Ann.
§ 2903.12. Such statutes are not treated here as ones that punish attempts
as aggravated assaults. Louisiana punishes attempted aggravated battery,
which differs only in name from attempted aggravated assault. See La.
Rev. Stat. Ann. §§ 36, 37. Accordingly, we treat Louisiana as a
               UNITED STATES V. GARCIA-JIMENEZ                           17

    This survey does not, however, accurately capture the
landscape of aggravated assault offenses as they relate to
attempts to cause serious bodily injury. Many U.S.
jurisdictions have separate attempt statutes that can be
combined with the jurisdiction’s aggravated assault statute to
create attempted aggravated assault. See, e.g., Schnecker v.
State, 739 P.2d 1310, 1310 (Alaska Ct. App. 1987) (citing
Alaska Stat. §§ 11.31.100, 11.41.200); but see In re James
M., 9 Cal. 3d 517, 520–23 (1973) (declining to recognize the
crime of attempted assault, either simple or aggravated).
Because we do not take a “hyper-formalistic approach” to the


jurisdiction that punishes attempt within its aggravated assault statute. See
Fernandez-Ruiz, 466 F.3d at 1125 (explaining that, in applying the
categorical approach, the court looks behind the statutory title of a state
offense). Finally, the District of Columbia’s aggravated assault statute
identifies, in a subsection separate from the provision defining the crime
of aggravated assault, the sentence for an attempt to commit aggravated
assault. See D.C. Code § 22-404.01(c). The statute does not define
“aggravated assault,” as such, to include attempts to commit serious
bodily injury, and so is included in the group of 33 statutes described
above. Id.
 10
    See Ala. Code § 13A-6-20; Alaska Stat. § 11.41.200; Ariz. Rev. Stat
Ann. §§ 13-1203, 1204; Ark. Code Ann. § 5-13-204; Cal. Penal Code
§ 245; Colo. Rev. Stat. § 18-3-202; Conn. Gen. Stat. § 53a-59; Del. Code
Ann. tit. 11, § 613; D.C. Code § 22-404.01; Fla. Stat. §§ 784.011,
784.021; Haw. Rev. Stat. § 707-710; Ill. Comp. Stat. 720 / §§ 5.12-1,
5.12-2; Ind. Code § 35-42-2-1.5; Iowa Code §§ 708.1, 708.2; Kan. Stat.
Ann. § 21-5412; Ky. Rev. Stat. Ann. § 508.010; Me. Stat. tit. 17-A, § 208;
Mass. Gen. Laws Ann. ch. 265, § 13A; Mich. Comp. Laws Ann. § 750.84;
Minn. Stat. §§ 609.02, 609.221; Mont. Code Ann. § 45-5-202; Neb. Rev.
Stat. § 28-308; N.H. Rev. Stat. Ann. § 631.1; N.M. Stat. Ann. § 30-3-2;
N.Y. Penal Law § 120.10; N.C. Gen. Stat. § 14-32.4; Or. Rev. Stat.
§ 163.175; R.I. Gen. Laws §§ 11-5-2, 11-5-3; S.C. Code Ann. § 16-3-600;
Tenn. Code Ann. §§ 39-13-101, 39-13-102; Tex. Penal Code Ann.
§§ 22.01, 22.02; Va. Code Ann. § 18.2-51.2; Wash. Rev. Code
§ 9A.36.011; W. Va. Code § 61-2-9; Wis. Stat. § 940.19.
18          UNITED STATES V. GARCIA-JIMENEZ

categorical analysis, Gomez-Hernandez, 680 F.3d at 1173;
see id. at 1175–77, and because certain jurisdictions do
punish attempts to cause serious bodily injury by combining
the jurisdiction’s attempt statute with its aggravated assault
statute, the distinction between those jurisdictions that
incorporate attempts directly into their aggravated assault
statutes and those that punish a crime with precisely the same
elements is not one of substance.

    We need not, however, further belabor the question
whether an attempt to cause serious bodily injury is part of
the federal generic definition of aggravated assault. Even if
it were, the attempt prong of the New Jersey statute is broader
than any federal generic definition of attempt.

   New Jersey law criminalizes attempts comprised of solely
preparatory acts and has specifically rejected the prevalent
“probable desistance” test. Federal law does not interpret
generic “attempt” so broadly.

    In New Jersey, a person is guilty of attempt if the person
“[p]urposely does or omits to do anything which, under the
circumstances as a reasonable person would believe them to
be, is an act or omission constituting a substantial step in a
course of conduct planned to culminate in [the] commission
of the crime.” State v. Fornino, 539 A.2d 301, 303–04 (N.J.
Super. Ct. App. Div. 1988) (quoting N.J. Stat. Ann. § 2C:5-
1). Fornino, which the parties agree is the controlling
precedent, discussed extensively the meaning of this language
under New Jersey law. See 539 A.2d 301.

    Facially, New Jersey’s substantial-step requirement is
identical to the requirement incorporated into the federal
generic definition of attempt. See United States v. Gonzalez-
              UNITED STATES V. GARCIA-JIMENEZ                          19

Monterroso, 745 F.3d 1237, 1243–44 (9th Cir. 2014). But
Fornino explains that New Jersey’s attempt statute was
enacted to broaden the usual scope of attempt, eliminating
from the concept of attempt the probable desistance test,
539 A.2d at 304—i.e., any requirement that the “defendant’s
actions unequivocally demonstrate that the crime will take
place unless interrupted by independent circumstances.”
Gonzalez-Monterroso, 745 F.3d at 1243 (internal quotation
marks and alteration omitted); see also id. at 1244; United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1107–08, 1109
n.5 (9th Cir. 2009). The probable desistance test is, however,
incorporated into the federal generic definition of attempt.
See Gonzalez-Monterroso, 745 F.3d at 1243, 1244; Saavedra-
Velasquez, 578 F.3d at 1107–08, 1109 n.5.11

    Because New Jersey has explicitly eliminated the
probable desistance test, New Jersey’s definition of attempt
is broader than the federal definition. On this ground, too, the
New Jersey statute of conviction is not a categorical match
for the federal generic definition.

    Accordingly, we hold that the New Jersey aggravated
assault provision pursuant to which Garcia-Jimenez was
convicted sweeps more broadly than the federal generic
definition, with regard to both the mens rea and attempt
elements. The district court therefore committed procedural
error when it concluded that Garcia-Jimenez’s prior


  11
     Relatedly, Fornino explicitly interprets “attempt” to include some
merely preparatory acts, so long as they are not “very remote preparatory
acts.” 539 A.2d at 306. This interpretation appears contrary to the federal
generic definition of attempt, which does not include the “[m]ere
preparation to commit a crime.” Gonzalez-Monterroso, 745 F.3d at 1243,
1244.
20          UNITED STATES V. GARCIA-JIMENEZ

conviction is a “crime of violence,” subjecting him to the 16-
level sentencing enhancement under Guidelines section
2L1.2. See United States v. Carty, 520 F.3d 984, 991, 993
(9th Cir. 2008) (en banc).

                              III.

    The United States maintains that even if the New Jersey
statute is overbroad, the district court’s procedural error in
calculating the base offense level is harmless in light of the
district court’s statement that it would have imposed the same
sentence even if the Guidelines’ 16-level enhancement was
inapplicable. The United States has the burden of proving the
error harmless. United States v. Acosta-Chavez, 727 F.3d
903, 909 (9th Cir. 2013).

    Ordinarily, “[a] failure to [calculate the Guidelines range]
correctly is reversible error.” Saavedra-Velazquez, 578 F.3d
at 1105 n.1. Further, “a district judge’s ‘mere statement that
it would impose the same above-Guidelines sentence no
matter what the correct calculation cannot, without more,
insulate the sentence from remand . . . .’ ‘[T]he court must
explain, among other things, the reason for the extent of [a]
variance.’” Acosta-Chavez, 727 F.3d at 910 (quoting United
States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.
2011) (per curiam)).

   Here, the proper range is 10-to-16 months, not 46-to-57
months. So the district court imposed a sentence that was
nearly three times the top of the proper Guidelines range.
The explanation requirement has special force when the
deviation is as large as it is here.
            UNITED STATES V. GARCIA-JIMENEZ                 21

    The district court provided no explanation for this
extremely large—albeit hypothetical—deviation from the
proper Guidelines range. The United States asserts that the
district court did state that it would impose the 46-month
sentence even without the enhancement because of Garcia-
Jimenez’s criminal history. But the passage the United States
cites for this proposition almost surely did not mean what the
United States would have it mean. Instead, the district court’s
reference to criminal history was part of its explanation
regarding why the Guidelines may treat Garcia-Jimenez’s
criminal history differently than the court did—that is, that
his prior conviction may not be (as we hold it is not) a crime
of violence:

       So the Court would treat [Garcia-Jimenez’s
       sentence the same] way in any event and
       sentence the defendant outside of the
       guidelines if, in fact, the Court were unable to
       reach the guideline range of 46 to 57 months
       due to the nature – due to how the criminal
       history is treated under the advisory
       guidelines.

(Emphasis added).

     In sum, the district court’s assurance that it would have
imposed a sentence three times the proper Guidelines range
if its Guidelines calculation turned out to be wrong cannot,
without more, cure the prejudice resulting from its incorrect
Guidelines calculation. See Acosta-Chavez, 727 F.3d at
909–10; Munoz-Camarena, 631 F.3d at 1030–31.
Accordingly, we find that the district court committed
22            UNITED STATES V. GARCIA-JIMENEZ

reversible procedural error at sentencing, see Carty, 520 F.3d
at 991, 993, and we must remand for resentencing.12

  VACATED     AND                       REMANDED                   FOR
RESENTENCING.




  12
     Because Garcia-Jimenez’s sentence is vacated on the basis of the
erroneous application of the sentencing enhancement, we do not address
his constitutional challenges to his sentence. See Lee v. Walters, 433 F.3d
672, 677 (9th Cir. 2005).
