                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 06-30387
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-06-05059-RBL
JEREMY ALEXANDER CARSON,
                                                  OPINION
             Defendant-Appellant.
                                          
        Appeal from the United States District Court
          for the Western District of Washington
        Ronald B. Leighton, District Judge, Presiding

                    Submitted April 9, 2007*
                      Seattle, Washington

                       Filed May 15, 2007

        Before: Alex Kozinski, Raymond C. Fisher and
             Richard C. Tallman, Circuit Judges.

                       Per Curiam Opinion




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

                                5743
                   UNITED STATES v. CARSON                5745


                         COUNSEL

Ronald D. Ness, Port Orchard, Washington, for the defendant-
appellant.

John McKay, United States Attorney for the Western District
of Washington, Tacoma, Washington; Kent Liu, Special
Assistant United States Attorney, Tacoma, Washington, for
the plaintiff-appellee.


                         OPINION

PER CURIAM:

  We address whether a conviction under Washington’s
second-degree assault statute is a “crime of violence” for the
purposes of the Sentencing Guidelines career offender
enhancement provision, U.S.S.G. § 4B1.1.

                            Facts

   Defendant was convicted of being a felon in possession of
a firearm, possession of a firearm in furtherance of drug traf-
ficking and possession of methamphetamine with intent to
distribute. At sentencing, the district court found that defen-
5746                    UNITED STATES v. CARSON
dant was a career offender subject to a sentencing enhance-
ment under U.S.S.G. § 4B1.1(a). Specifically, the judge found
that defendant’s prior convictions in Washington State for
second-, Wash. Rev. Code § 9A.36.021(1)(f), and third-
degree assault, Wash. Rev. Code § 9A.36.031(1)(f), are
“crimes of violence” for purposes of section 4B1.1(a). On
appeal, defendant challenges the determination that second-
degree assault, as defined by subsection (1)(f) of Washing-
ton’s second-degree assault provision, is a crime of violence.1

                                  Analysis

   [1] A defendant who, like Carson, has been convicted of a
controlled substance offense committed when he was at least
eighteen years old, is eligible for a sentencing enhancement
under section 4B1.1(a) if he has at least two prior convictions
for “crime[s] of violence.” A “crime of violence” for the pur-
poses of section 4B1.1(a) is defined by U.S.S.G. § 4B1.2(a)
as

       any offense under federal or state law, punishable by
       imprisonment for a term exceeding one year, that—
       (1) has as an element the use, attempted use, or
       threatened use of physical force against the person of
  1
    Defendant does not challenge the district court’s determination that his
conviction under Washington’s third-degree assault statute is a crime of
violence. But, in addition to his sentencing claim, defendant challenges the
district court’s decision not to exclude testimony from an expert witness
the government disclosed in an untimely manner. On this record, we can-
not conclude that the district court abused its discretion by letting the testi-
mony in or by refusing to delay the trial. See Fed. R. Crim. P. 16(d)(2) (a
district judge can remedy discovery violations by ordering compliance,
excluding the evidence, granting a continuance or ordering whatever relief
is “just under the circumstances”); United States v. Danielson, 325 F.3d
1054, 1074 (9th Cir. 2003) (we review a district court’s ruling under Rule
16 for abuse of discretion). The expert witness’s testimony, that drug deal-
ers often possess weapons and drug paraphernalia, could not have been
very surprising to defendant, nor was it readily susceptible to refutation in
the event that a continuance had been granted.
                        UNITED STATES v. CARSON                         5747
      another, or (2) is burglary of a dwelling, arson, or
      extortion, involves use of explosives, or otherwise
      involves conduct that presents a serious potential
      risk of physical injury to another.

Id. (emphasis added).

   [2] Defendant was convicted under subsection (1)(f) of
Washington’s second-degree assault statute, which punishes
the “[k]nowing[ ] inflict[ion of] bodily harm which by design
causes such pain or agony as to be the equivalent of that pro-
duced by torture.” Wash. Rev. Code § 9A.36.021(1)(f).2 The
offense meets the prefatory requirement of section 4B1.2(a),
because, under Washington law, second-degree assault is a
“class B” felony punishable by a maximum term of ten years
imprisonment. See Wash. Rev. Code §§ 9A.36.021(2)(a),
9A.20.021(1)(b). The parties here dispute whether the offense
also meets the requirements of either subsections 4B1.2(a)(1)
or (2).
   Under the categorical analysis of Taylor v. United States,
495 U.S. 575, 598 (1990), we look to the statutory definition
of the prior offense to determine whether the “elements of the
offense are of the type that would justify its inclusion” within
the federal provision. James v. United States, 127 S. Ct. 1586,
1594 (2007). In so doing, we must not conjure up some sce-
nario, however improbable, whereby a defendant might be
convicted under the statute in question even though he did not
commit an act encompassed by the federal provision. Rather,
we must find “a realistic probability, not a theoretical possi-
bility,” that this might happen. Gonzales v. Duenas-Alvarez,
  2
    We have previously held that a conviction under subsection (1)(a) of
Washington’s second-degree assault statute, which makes it illegal to
“[i]ntentionally assault[ ] another and thereby recklessly inflict[ ] substan-
tial bodily harm,” constitutes a crime of violence. See United States v.
Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005). We have not yet
determined whether the same is true for a conviction under subsection
(1)(f).
5748                 UNITED STATES v. CARSON
127 S. Ct. 815, 822 (2007). In other words, “the proper
inquiry is whether the conduct encompassed by the elements
of the offense, in the ordinary case,” would satisfy the
requirements of section 4B1.1(a). James, 127 S. Ct. at 1597
(emphasis added). If we find that it would, the burden shifts
to the defendant to “at least point to his own case or other
cases” where the state courts applied the statute in a way that
would make it overbroad under Taylor. Duenas-Alvarez, 127
S. Ct. at 822.
   [3] Under the categorical approach, as refined by James
and Duenas-Alvarez, we have little difficulty concluding that
a conviction under subsection (1)(f) of Washington’s second-
degree assault statute “presents a serious potential risk of
physical injury to another” and is therefore a “crime of vio-
lence” for the purposes of the career offender enhancement
provision. Even were it possible to “[k]nowingly inflict[ ]
bodily harm which by design causes such pain or agony as to
be the equivalent of that produced by torture” without creat-
ing a serious risk of physical injury, this would not be the
ordinary case. Common experience teaches that the level of
pain suffered by the victim increases with the degree of
trauma inflicted. For example, a blow severe enough to break
a bone or cause a concussion will certainly be more painful
than a slap in the face. Knowing infliction of bodily harm
serious enough to cause the degree of pain or agony described
in subsection (1)(f) will, in the ordinary case, carry a signifi-
cant risk of physical injury to the victim.
   Defendant has made no showing that the state courts have
applied Wash. Rev. Code § 9A.36.021(1)(f) to him, or any-
body else, in circumstances where bodily injury was unlikely
to occur. Given that defendant’s prior conviction for second-
degree assault is for a categorical crime of violence, the dis-
trict court did not err in determining that defendant was eligi-
ble for a career offender enhancement.3


   3
     Because we hold that a conviction under Wash. Rev. Code
§ 9A.36.021(1)(f) meets the requirements of subsection 4B1.2(a)(2), we
do not determine whether the crime would also meet the requirements of
subsection 4B1.2(a)(1).
            UNITED STATES v. CARSON   5749
AFFIRMED.
