                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 3, 2008
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 06-2302
          v.                                        District of New Mexico
 PABLO CESAR MACHADO-                             (D.C. No. 05-CR-1614-JH)
 DELGADO,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, BALDOCK and McCONNELL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Pablo Cesar Machado-Delgado pleaded guilty to illegally reentering the

United States in violation of 8 U.S.C. § 1326(a)(1) & (2). At sentencing, the

district court enhanced Mr. Machado-Delgado’s base offense level by 16 points



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th
Cir. R. 32.1.
pursuant to U.S.S.G. § 2L1.2(b)(1)(A), finding that a prior Arizona conviction for

aggravated assault in 1998 was a felony and a crime of violence. The district

court sentenced him to 46 months’ imprisonment and two years of supervised

release. On appeal, Mr. Machado-Delgado challenges the district court’s

application of this enhancement. Because we find that the aggravated assault was

a crime of violence, we AFFIRM the district court’s decision.

      In 1998, Mr. Machado-Delgado was arrested when Phoenix Police Officers

came to his home in response to a suspected domestic violence incident. When

they arrived, a struggle ensued, and he allegedly tried to resist when an officer

restrained him. He pleaded guilty to one count of aggravated assault on an

Arizona peace officer, a Class 6 state felony offense. Ariz. Rev. Stat. § 13-

1204(A)(5) (1998). He was sentenced to one month’s imprisonment and three

years of probation. He was deported to Mexico in September of 1998.

      In 2005, Mr. Machado-Delgado was discovered in the United States. He

pleaded guilty to illegal reentry in violation of 8 U.S.C. §§ 1326(a)(1) & (a)(2).

The Presentence Investigation Report (“PSR”) provided that Mr. Machado-

Delgado’s base offense level was eight, pursuant to § 2L1.2(a) of the United

States Sentencing Guidelines. The PSR recommended a sixteen–level increase to

that level, pursuant to § 2L1.2(b)(1)(A)(ii), because his prior Arizona conviction

for aggravated assault was a felony and a crime of violence. After a three-level

downward departure for acceptance of responsibility, the PSR arrived at a total

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offense level of 21, a criminal history category of III, and a recommended

Guidelines range of 46–57 months. At sentencing, the district court adopted the

recommendations in the PSR and sentenced Mr. Machado-Delgado to 46 months.

      Mr. Machado-Delgado filed a timely appeal, claiming that the district court

erred in applying the sixteen-level upward adjustment because “he committed no

violence when he assaulted an Arizona peace officer by resisting his arrest.”

Appellant’s Brief at 7.

      This argument is precluded by our Court’s precedent. The sixteen-level

upward adjustment for crimes of violence applies to defendants who were

previously deported after “a conviction for a felony that is . . . (ii) a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A). Under the commentary to that

enhancement, a “‘crime of violence’ means any of the following: . . . aggravated

assault.” § 2L1.2 n.1(B)(iii). “The offenses listed in the application note to §

2L1.2 ‘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. Hernandez-

Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006) (quoting United States v.

Munguia-Sanchez, 365 F.3d 877, 881 (10th Cir. 2004)) (further quotation

omitted). Because Mr. Machado-Delgado was convicted of “aggravated assault”

under Ariz. Rev. Stat. §13-1204, which is enumerated in the commentary’s




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definition of “crime of violence,” his conviction qualifies for the enhancement,

irrespective of whether actual force was involved.

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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