                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 13-10095
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:12-cr-01649-
                                          DCB-DTF-1
RUBEN SAHAGUN-GALLEGOS, AKA
Ruben Gallegos Sahagun, AKA
Ruben Sahugun-Gallegos,                    OPINION
              Defendant-Appellant.


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

                Argued and Submitted
      March 13, 2015—San Francisco, California

                  Filed April 10, 2015

     Before: John T. Noonan, William A. Fletcher,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2          UNITED STATES V. SAHAGUN-GALLEGOS

                           SUMMARY*


                          Criminal Law

     The panel vacated a sentence and remanded for
resentencing in a case in which the defendant pleaded guilty
to illegal re-entry in violation of 8 U.S.C. § 1326.

    As agreed by the parties, the panel held that remand is
required because, in light of a post-sentencing amendment to
the application notes to U.S.S.G. § 3E1.1, the Government
improperly withheld a motion for a third-level reduction for
acceptance of responsibility.

    Because the issue will reoccur at resentencing, the panel
addressed the applicability of a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) in order to provide guidance on
remand. The panel wrote that a sentencing court conducting
the modified categorical approach may not, consistent with
Descamps v. United States, 133 S. Ct. 2276 (2013), rely on a
defense attorney’s statement of the factual basis for a guilty
plea and use the process of elimination to determine which
subsection of a divisible statute the defendant pleaded guilty
to violating. The panel wrote that it was therefore error for the
district court to apply the enhancement on the ground that the
defendant’s prior conviction for aggravated assault with a
deadly weapon in violation of Arizona Revised Statutes § 13-
1204(A)(2) was a “crime of violence,” in reliance on the
defense attorney’s statement of the factual basis for the guilty
plea, where the documents submitted by the Government do

  *
    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. SAHAGUN-GALLEGOS                   3

not establish that the defendant pleaded guilty to the elements
of A.R.S. § 13-1203(A)(2), the one subsection of the Arizona
statute defining “assault” that is a match to the generic “crime
of violence.”


                         COUNSEL

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

Robert A. Fellrath (argued), Assistant United States Attorney,
John S. Leonardo, United States Attorney, Robert L. Miskell,
Appellate Chief, and Christina M. Cabanillas, Assistant
United States Attorney, United States Attorney’s Office,
Tucson, Arizona, for Plaintiff-Appellee.


                          OPINION

CHRISTEN, Circuit Judge:

    We consider in this case whether, consistent with
Descamps v. United States, 133 S. Ct. 2276 (2013), a
sentencing court conducting the modified categorical
approach may rely on a defense attorney’s statement of the
factual basis for a guilty plea and use the process of
elimination to determine which subsection of a divisible
statute the defendant pleaded guilty to violating. We
conclude that it may not, and we vacate and remand for
resentencing.
4        UNITED STATES V. SAHAGUN-GALLEGOS

                     BACKGROUND

    Ruben Sahagun-Gallegos was deported to Mexico in
2006. He returned to the United States, and in 2008 he
pleaded guilty in Pima County Superior Court to aggravated
assault with a deadly weapon in violation of Arizona Revised
Statutes (A.R.S.) § 13-1204(A)(2). Shortly after his prison
term began, he was released to the custody of Immigration
and Customs Enforcement, convicted of illegal re-entry in
federal court, and deported.

    Sahagun-Gallegos again returned to the United States. In
August 2012, he was indicted in federal court for illegal re-
entry in violation of 8 U.S.C. § 1326 (enhanced by 8 U.S.C.
§ 1326(b)(1)). He pleaded guilty to the indictment without a
plea agreement.

    Before sentencing, a probation officer prepared a
presentence investigation report (PSR). The PSR determined
Sahagun-Gallegos’s base offense level under the Sentencing
Guidelines was 8. The PSR recommended a 16-level
enhancement based on its conclusion that Sahagun-Gallegos’s
aggravated assault conviction qualified as a felony “crime of
violence.” After a 2-level deduction for acceptance of
responsibility, the PSR calculated the total offense level as
22. According to the PSR, “[t]he government indicated a
motion for the third-level reduction for acceptance of
responsibility will be made if the defendant waives his appeal
rights.”

    The Government submitted three documents pertaining to
Sahagun-Gallegos’s aggravated assault conviction in support
of the 16-level enhancement: the plea agreement, the plea
hearing transcript, and the grand jury transcript. Neither
           UNITED STATES V. SAHAGUN-GALLEGOS                           5

Sahagun-Gallegos nor the Government filed objections to the
PSR.

    At sentencing, the district court inquired whether
Sahagun-Gallegos’s counsel had looked carefully at the 16-
level enhancement. Counsel responded that she believed,
based on the plea hearing transcript from the 2008 conviction,
that Sahagun-Gallegos’s aggravated assault conviction
qualified as a “crime of violence” under the Sentencing
Guidelines. Counsel also stated that Sahagun-Gallegos was
not waiving his appeal rights in exchange for a third-level
reduction for acceptance of responsibility.

    The district court accepted the PSR’s Guidelines
calculation. Based on a total offense level of 22 and a
criminal history category of IV, the court determined the
Guidelines range was 63 to 78 months’ imprisonment. The
court varied the sentence downward and imposed a sentence
of 48 months’ imprisonment, followed by a three-year term
of supervised release. The court explained that after serving
this sentence, Sahagun-Gallegos would be deported.

    Sahagun-Gallegos timely appealed his sentence, but his
attorney filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and requested permission to withdraw.1
A panel of our court conducted an independent review of the
record and identified two potentially arguable issues for
direct appeal: (1) whether the district court plainly erred by


  1
    In Anders, the Supreme Court held: “[I]f counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so
advise the court and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in the record
that might arguably support the appeal.” 386 U.S. at 744.
6         UNITED STATES V. SAHAGUN-GALLEGOS

applying the 16-level enhancement based on Sahagun-
Gallegos’s aggravated assault conviction; and (2) whether the
Government improperly withheld a motion for a third-level
reduction for acceptance of responsibility on the ground that
Sahagun-Gallegos refused to waive his appeal rights. The
panel granted the motion to withdraw, but directed that a new
attorney be appointed for Sahagun-Gallegos.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We review de novo the district court’s
interpretation of the Sentencing Guidelines. United States v.
Swank, 676 F.3d 919, 921 (9th Cir. 2012). “We have
previously noted an intracircuit conflict as to whether the
standard of review for application of the Guidelines to the
facts is de novo or abuse of discretion.” Id. at 921–22. We
need not resolve that conflict here because, as in Swank,
“[t]he choice of standard . . . does not affect the outcome of
this case.” See id. at 922.

                       DISCUSSION

I. Remand is required because the Government
   improperly withheld a motion for a third-level
   reduction for acceptance of responsibility.

    Under § 3E1.1(a) of the Sentencing Guidelines, a
defendant is entitled to have his total offense level decreased
by 2 if he “clearly demonstrates acceptance of responsibility
for his offense.” Section 3E1.1(b) provides:

       If the defendant qualifies for a decrease under
       subsection (a), the offense level determined
         UNITED STATES V. SAHAGUN-GALLEGOS                  7

       prior to the operation of subsection (a) is level
       16 or greater, and upon motion of the
       government stating that the defendant has
       assisted authorities in the investigation or
       prosecution of his own misconduct by timely
       notifying authorities of his intention to enter
       a plea of guilty, thereby permitting the
       government to avoid preparing for trial and
       permitting the government and the court to
       allocate their resources efficiently, decrease
       the offense level by 1 additional level.

    The district court reduced Sahagun-Gallegos’s offense
level by 2 because he clearly demonstrated acceptance of
responsibility. The PSR indicated the Government would
have moved for a third-level reduction if Sahagun-Gallegos
had waived his appeal rights.

    While Sahagun-Gallegos’s appeal was pending, the
application notes to § 3E1.1 were amended to clarify that
“[t]he government should not withhold [a motion for a third-
level reduction] based on interests not identified in § 3E1.1,
such as whether the defendant agrees to waive his or her right
to appeal.” U.S. Sentencing Guidelines Manual § 3E1.1 cmt.
n.6 (2014). The Government acknowledges that this revision
applies retroactively to defendants whose cases were pending
on direct appeal, and that Sahagun-Gallegos’s “sentence
should be vacated and remanded so that the district court can
assess whether [he] should receive a third point [for]
acceptance of responsibility.” We therefore vacate Sahagun-
Gallegos’s sentence and remand for resentencing.
8           UNITED STATES V. SAHAGUN-GALLEGOS

II. Applicability of the 16-level enhancement based on
    Sahagun-Gallegos’s aggravated assault conviction.

    Section 2L1.2(a) of the Sentencing Guidelines calls for a
base offense level of 8 for a defendant convicted of illegal re-
entry. Section 2L1.2(b) calls for a 16-level enhancement if
the defendant has a prior felony conviction for “a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of
violence” is defined to include “any . . . 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. Sentencing Guidelines Manual § 2L1.2 cmt.
n.1(B)(iii) (2014).

     Sahagun-Gallegos argues his 2008 aggravated assault
conviction does not qualify as a “crime of violence,” but he
did not make this argument before the district court. Under
these circumstances, this court’s review ordinarily would be
for plain error. United States v. Guzman-Mata, 579 F.3d
1065, 1068 (9th Cir. 2009). “Plain error is ‘(1) error, (2) that
is plain, and (3) that affects substantial rights.’” Id. (quoting
United States v. Rodriguez-Lara, 421 F.3d 932, 948 (9th Cir.
2005)).2 But because we vacate Sahagun-Gallegos’s sentence
for the reasons discussed in the previous section, and because
the applicability of the 16-level enhancement is an issue that
will reoccur at resentencing, we address the applicability of
the enhancement in order to provide guidance to the district
court on remand.



    2
    If a court finds plain error it “may only reverse if the error ‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’” Guzman-Mata, 579 F.3d at 1068 (quoting Rodriguez-Lara,
421 F.3d at 948–49).
          UNITED STATES V. SAHAGUN-GALLEGOS                  9

   A. The statute of conviction is overbroad and
      divisible.

    We employ the “categorical approach” set forth in Taylor
v. United States, 495 U.S. 575 (1990), to determine whether
a prior state court conviction qualifies as a “crime of
violence” under the Sentencing Guidelines. Under the Taylor
framework, we determine whether the statute of conviction is
categorically a “crime of violence” by comparing the
elements of the statute of conviction with the generic federal
definition. United States v. Caceres-Olla, 738 F.3d 1051,
1054 (9th Cir. 2013). If the statute of conviction is broader
than the generic federal definition, we must determine
whether the statute of conviction is divisible. Alvarado v.
Holder, 759 F.3d 1121, 1126 (9th Cir. 2014). A divisible
statute is one that “‘comprises multiple, alternative versions
of the crime,’ at least one of which ‘correspond[s] to the
generic offense.’” Id. (alteration in original) (quoting
Descamps, 133 S. Ct. at 2284–85).

    If the statute of conviction is divisible, then under the
“modified categorical approach” we may examine a limited
class of judicially noticeable documents to determine whether
the alternative corresponding to the generic offense was the
basis of the conviction. United States v. Gonzalez-
Monterroso, 745 F.3d 1237, 1241 (9th Cir. 2014). When a
defendant’s conviction was based on a guilty plea, such
documents include the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
The documents must show that the defendant “necessarily
admitted [the] elements of the generic offense.” Id. at 26; see
10       UNITED STATES V. SAHAGUN-GALLEGOS

also United States v. Marcia-Acosta, No. 13-10475, — F.3d
—, 2015 WL 1283771, at *4–5 (9th Cir. Mar. 23, 2015).

    In this case, Sahagun-Gallegos was convicted of violating
A.R.S. § 13-1204(A)(2). A.R.S. § 13-1204(A)(2) provides:
“A person commits aggravated assault if the person commits
assault as prescribed by § 13-1203” and “the person uses a
deadly weapon or dangerous instrument.” A.R.S. § 13-
1203(A) defines “assault” as follows:

       A person commits assault by:

       1. Intentionally, knowingly or recklessly
          causing any physical injury to another
          person; or

       2. Intentionally placing another person in
          reasonable apprehension of imminent
          physical injury; or

       3. Knowingly touching another person with
          the intent to injure, insult or provoke such
          person.

    The parties agree that A.R.S. § 13-1203(A) is overbroad
because the definition of “assault” in subsection
(1) encompasses acts done with ordinary recklessness,
whereas a “crime of violence” requires a mens rea of at least
heightened recklessness. See United States v. Gomez-
Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012). The parties
also agree that A.R.S. § 13-1203(A) is divisible. See United
States v. Cabrera-Perez, 751 F.3d 1000, 1004–05 (9th Cir.
            UNITED STATES V. SAHAGUN-GALLEGOS                              11

2014).3 Finally, the parties agree that, under Cabrera-Perez,
an aggravated assault predicated on A.R.S. § 13-1203(A)(2)
is a “crime of violence,” specifically, an offense “that has as
an element the use, attempted use, or threatened use of
physical force against the person of another.”4

      B. The documents submitted by the Government in
         support of the 16-level enhancement do not show
         that Sahagun-Gallegos admitted the elements of
         A.R.S. § 13-1203(A)(2).

     The parties dispute whether the three documents
submitted by the Government in support of the 16-level
enhancement are sufficient to establish that Sahagun-Gallegos
pleaded guilty to aggravated assault predicated on A.R.S.
§ 13-1203(A)(2), as opposed to A.R.S. § 13-1203(A)(1) or
(3).

  3
    After Cabrera-Perez was decided, our court clarified that under the
Supreme Court’s decision in Descamps, courts “determine whether a
disjunctively worded state statute is divisible or not by looking to whether
the state treats the parts of the statute on opposite sides of the ‘or’ as
alternative elements or alternative means.” Rendon v. Holder, 764 F.3d
1077, 1088 (9th Cir. 2014). Arizona treats the subsections of A.R.S. § 13-
1203(A) as three different crimes, each comprised of different elements.
See State v. Freeney, 219 P.3d 1039, 1042 (Ariz. 2009) (en banc); State
v. Delgado, 303 P.3d 76, 82–83 (Ariz. Ct. App. 2013).
  4
    At oral argument, the Government argued that A.R.S. § 13-1203(A)(2)
is a general intent crime, and therefore it is sufficient for a conviction that
a defendant intended to point the weapon, as opposed to “[i]ntentionally
placing another person in reasonable apprehension of imminent physical
injury.” See Ariz. Rev. Stat. § 13-1203(A)(2). This argument was not
included in the Government’s briefing, but Sahagun-Gallegos’s attorney
correctly responded that if A.R.S. § 13-1203(A)(2) were a general intent
crime, application of the enhancement would fail because the statute
would be overbroad.
12         UNITED STATES V. SAHAGUN-GALLEGOS

    The plea agreement provides that on or about November
1, 2007, Sahagun-Gallegos committed assault with a firearm,
in violation of A.R.S. § 13-1204(A)(2) (the aggravated
assault statute). It does not specify which subsection of
A.R.S. § 13-1203(A) was violated.

    At the 2008 state court change of plea hearing, Sahagun-
Gallegos confirmed that he was pleading guilty to
“aggravated assault, a class 3 felony.” The superior court
then asked Sahagun-Gallegos’s attorney to provide a factual
basis for the plea, and Sahagun-Gallegos’s attorney
responded:

         Around this time period Mr. Sahagun was
         having marital problems with his wife and
         began drinking heavily.         And around
         November 1st of last year here in Pima
         County he was going through the drive-thru of
         a fast-food restaurant and had during his
         drunken state pointed a gun at the lady who
         was the cashier who was present. . . . And
         that was the basis of the [aggravated assault
         count].

Sahagun-Gallegos’s attorney also agreed that the superior
court could consider the grand jury transcript as part of the
factual basis for the plea.5




  5
     In his briefing before this court, Sahagun-Gallegos notes that “the
[2008] plea agreement incorporated the grand jury transcript within the
factual basis.” He does not contest whether the 2008 grand jury transcript
is Shepard compliant.
         UNITED STATES V. SAHAGUN-GALLEGOS                 13

    At the grand jury proceeding, a Tucson police detective
testified that Sahagun-Gallegos admitted in an interview to
pulling his car up to the drive-through window of a Jack In
The Box restaurant and pointing a sawed-off shotgun at the
employee working there.

    None of the three documents submitted by the
Government cites a specific subsection of A.R.S. § 13-
1203(A) or quotes the elements of a specific subsection. The
Government suggests the court may examine the factual basis
provided by Sahagun-Gallegos’s attorney at the change of
plea hearing and use the process of elimination to deduce that
Sahagun-Gallegos pleaded guilty to A.R.S. § 13-1203(A)(2).
More specifically, the Government argues the factual basis
does not support a conviction under A.R.S. § 13-1203(A)(1)
or (3) because those types of assault require physical injury
or touching—i.e., conduct that was not part of the factual
basis provided by Sahagun-Gallegos’s attorney.

    We reject the Government’s argument for two reasons.
First, both this court and the Supreme Court have held that
the factual basis for a plea must be assented to by the
defendant for a sentencing court to rely on it when conducting
the modified categorical approach, see Shepard, 544 U.S. at
26; Alvarado, 759 F.3d at 1132, and there is no indication in
the plea hearing transcript that Sahagun-Gallegos assented to
the factual basis provided by his attorney, much less to the
police detective’s grand jury testimony.

    Second, even if Sahagun-Gallegos had assented to the
factual basis provided by his attorney, the Supreme Court
emphasized in Descamps that the modified categorical
approach “retains the categorical approach’s central feature:
a focus on the elements, rather than the facts, of a crime.”
14        UNITED STATES V. SAHAGUN-GALLEGOS

133 S. Ct. at 2285; see also Marcia-Acosta, 2015 WL
1283771, at *4 (“Consideration of only the elements of the
crime of conviction is the pivotal concept in applying the
modified categorical analysis.” (internal quotation marks
omitted)). When conducting the modified categorical
approach, we may not examine a transcript “to try to discern
what . . . a plea proceeding revealed[] about the defendant’s
underlying conduct.” Descamps, 133 S. Ct. at 2288. Rather,
we are limited to assessing whether the defendant
“‘necessarily admitted’” the elements of the particular
statutory alternative that is a categorical match to the generic
federal offense. See id. at 2284 (quoting Shepard, 544 U.S.
at 26).

    Here, the documents submitted by the Government do not
demonstrate that Sahagun-Gallegos admitted the elements of
A.R.S. § 13-1203(A)(2), most notably the “intent” element.
The Government argues this does not matter because
Sahagun-Gallegos’s conduct, as detailed by his attorney,
“could only have violated § 13-1203(A)(2), which, in turn,
required intentional conduct.” But the Government’s
argument asks us to adopt an approach that Descamps
expressly forbids, namely, to “discover what [Sahagun-
Gallegos] actually did,” and then use the facts, as opposed to
the elements, of his prior conviction to determine whether he
committed a “crime of violence.” See id. at 2287–88.

    The fact-based inquiry advocated by the Government is
particularly inappropriate in the plea bargaining context.
Descamps cautioned that statements of fact made during a
change of plea hearing may be “downright wrong” because a
defendant “often has little incentive to contest facts that are
not elements of the charged offense.” Id. at 2289. “[W]hen
a defendant pleads guilty to a crime, he waives his right to a
            UNITED STATES V. SAHAGUN-GALLEGOS                            15

jury determination of only that offense’s elements; whatever
he says, or fails to say, about superfluous facts cannot license
a later sentencing court to impose extra punishment.” Id. at
2288. We recently reiterated these principles in Marcia-
Acosta, and held that a defense attorney’s factual-basis
statement that the defendant acted “intentionally” in violating
A.R.S. § 13-1203(A)(1) was insufficient to show that the
defendant pleaded guilty to the mens rea element of generic
aggravated assault. 2015 WL 1283771, at *5–6, 9.6



  6
    In Marcia-Acosta, the parties agreed the defendant was convicted of
violating A.R.S. § 13-1203(A)(1), which prohibits intentionally,
knowingly, or recklessly causing physical injury. Because the defendant
waived any argument that A.R.S. § 13-1203(A)(1) is not divisible, we
analyzed that subsection under the modified categorical approach. 2015
WL 1283771, at *4. We observed that the defense attorney’s statement
that the defendant acted intentionally was extraneous to the conviction.
Id. at *6. We also indicated that there may be circumstances in which a
factual-basis statement “negates all possible statutory alternatives” and is
therefore sufficient to establish that a defendant pleaded guilty to the
generic crime. Id. at *9 & n.10. As an example, we hypothesized a
situation in which “a defendant pleading guilty to burglary stated, as part
of his factual basis, that he ‘entered a house, not a boat.’” Id. at *9 n.10.

     In a letter filed pursuant to Rule 28(j) of the Federal Rules of
Appellate Procedure, the Government argues Sahagun-Gallegos’s
attorney’s factual-basis statement negates all possible statutory
alternatives, and therefore the Government’s suggested approach is
consistent with Marcia-Acosta. If Sahagun-Gallegos had personally
assented to the elements of A.R.S. § 13-1203(A)(2), as in the Marcia-
Acosta burglary example, we might agree with the Government. But
because Sahagun-Gallegos did not assent to the factual basis provided by
his attorney, and because the factual basis did not affirmatively set forth
the mens rea element of A.R.S. § 13-1203(A)(2), the Government’s
argument is contrary to Descamps’s and Marcia-Acosta’s clear direction
to focus on the elements, as opposed to the facts, of the underlying
conviction.
16       UNITED STATES V. SAHAGUN-GALLEGOS

    Because the modified categorical approach does not
permit courts to substitute “a facts-based inquiry for an
elements-based one,” Descamps, 133 S. Ct. at 2293, we
conclude it was error for the district court to apply the 16-
level enhancement based on Sahagun-Gallegos’s aggravated
assault conviction. The documents submitted by the
Government do not establish that Sahagun-Gallegos pleaded
guilty to the elements of A.R.S. § 13-1203(A)(2), the
statutory alternative that is a match to the generic “crime of
violence.”

                      CONCLUSION

   For the foregoing reasons, we VACATE Sahagun-
Gallegos’s sentence and REMAND for resentencing.
