         Case: 16-14925   Date Filed: 01/05/2018   Page: 1 of 20


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-14925
                     ________________________

              D.C. Docket No. 1:15-cr-00261-SCJ-LTW-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

versus



PAULINO MORALES-ALONSO,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                           (January 5, 2018)
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Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS, *
District Judge.

JULIE CARNES, Circuit Judge:

       This appeal requires us to decide whether Georgia aggravated assault as

defined by O.C.G.A § 16-5-21(a)(2) is a crime of violence under the operative

version of § 2L1.2 of the Sentencing Guidelines. Defendant Paulino Morales-

Alonso was convicted in 2016 of illegally reentering the United States, in violation

of 8 U.S.C. §§ 1326(a) and (b)(2), after having been deported following a

conviction for aggravated assault under O.C.G.A § 16-5-21(a)(2). Based on the

aggravated assault conviction, the district court imposed a sentencing enhancement

that applies when a defendant has been deported after committing a “crime of

violence” as defined by § 2L1.2(b)(1)(A)(ii) of the Guidelines. Defendant

appealed the sentence, arguing that his Georgia aggravated assault conviction does

not qualify as a crime of violence for purposes of § 2L1.2. We affirm.

                                      BACKGROUND

       Defendant, a Mexican citizen who was in the United States illegally, was

convicted in 2012 of committing an aggravated assault in Georgia. At the time of

Defendant’s conviction, O.C.G.A. § 16-5-21 defined “aggravated assault” as an

“assault” committed:
*
   Honorable Kathleen Williams, United States District Judge for the Southern District of Florida,
sitting by designation.


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       (1)     With intent to murder, to rape, or to rob;

       (2)     With a deadly weapon or with any object, device, or instrument
               which, when used offensively against a person, is likely to or actually
               does result in serious bodily injury; or

       (3)     [Against a] person or persons without legal justification by
               discharging a firearm from within a motor vehicle toward a person or
               persons.

O.C.G.A. § 16-5-21(a) (2012).1 For purposes of this statute, an “assault” can be

accomplished either by (1) attempting to “commit a violent injury to the person of

another” or (2) committing an “act which places another in reasonable

apprehension of immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a).

Defendant was convicted of violating subsection (a)(2) of Georgia’s aggravated

assault statute by assaulting his victim “with a brick, an object which when used

offensively against a person is likely to result in serious bodily injury, by throwing

it at and striking” the victim.

       Following his Georgia aggravated assault conviction, Defendant was

removed from the United States. A few months after his removal, immigration

officials again found Defendant in a Georgia jail after he had been arrested on

charges of possessing methamphetamine and marijuana, obstructing a law

enforcement officer, and giving a false name. Defendant was convicted on those


1
  The Georgia legislature has since amended the statute to add a fourth aggravator that is not
relevant here. See O.C.G.A. § 16-5-21(b)(3) (2016).

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charges and, while incarcerated, he was charged federally with illegal reentry in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). Defendant pled guilty and was

convicted on the illegal reentry charge on June 14, 2016.

       Pursuant to § 2L1.2(a) of the 2015 Sentencing Guidelines, the Pre-Sentence

Report (“PSR”) assigned Defendant a base offense level of 8. Citing Defendant’s

prior Georgia conviction for aggravated assault, the PSR applied a 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines. At the time of

Defendant’s sentencing, that provision required such an enhancement when a

defendant previously was deported after being convicted of a felony “crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015).2 The PSR determined that

Defendant’s Georgia aggravated assault conviction qualified as a crime of

violence, and that the enhancement was thus warranted. After applying the

enhancement and subtracting 3 levels for acceptance of responsibility, the PSR set

Defendant’s total offense level at 21 and his criminal history category at VI,

yielding an advisory guideline range of 77 to 96 months.
2
  Section 2L1.2 was amended in November, 2016, several months after Defendant’s sentencing.
See U.S.S.G. § 2L1.2 (2016). Under the amended version, the level of enhancement applicable
to a defendant who previously was deported after a felony conviction depends on the length of
the sentence the defendant received for the offense. Id. § 2L1.2(b)(2). The 2016 amendments
are substantive rather than clarifying. See United States v. Jerchower, 631 F.3d 1181, 1185 (11th
Cir. 2011) (“An amendment that alters the text of the Guideline itself suggests a substantive
change[.]”). Thus, the pre-amended version of § 2L1.2 governs our analysis. See 18 U.S.C.
§ 3553(a)(4)(A)(ii) (instructing the sentencing court to apply the Guidelines “that . . . are in
effect on the date the defendant is sentenced”); Jerchower, 631 F.3d at 1184 (“Substantive
amendments to the Guidelines . . . are not applied retroactively on direct appeal.”).


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      Defendant objected to the 16-level enhancement, arguing that his Georgia

aggravated assault conviction does not qualify as a crime of violence for purposes

of § 2L1.2(b)(1)(A)(ii). The district court rejected Defendant’s argument and

applied the enhancement, but the court did vary down from the calculated offense

level to an offense level of 19, which yielded a sentencing range of 63 to 78

months. After giving Defendant credit for one month that he spent in ICE custody,

the court imposed a sentence of 63 months.

                                  DISCUSSION

I.    Standard of Review

      The only issue on appeal is whether Defendant’s Georgia aggravated assault

conviction under O.C.G.A. § 16-5-21(a)(2) qualifies as a crime of violence for

purposes of § 2L1.2(b)(1)(A)(ii), and thus warrants an enhancement under that

provision. We review the district court’s ruling on that issue de novo. See United

States v. Garcia-Martinez, 845 F.3d 1126, 1129 (11th Cir. 2017).

II.   Section 2L1.2’s Crime of Violence Enhancement

      The operative version of § 2L1.2(b)(1)(A)(ii) requires a 16-level

enhancement if a defendant who is convicted of illegal reentry “previously was

deported” after being convicted of a felony that is a “crime of violence.” U.S.S.G.




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§ 2L1.2(b)(1)(A)(ii). The commentary 3 to § 2L1.2 defines the term “crime of

violence” to mean:

       [A]ny of the following offenses under federal, state, or local law:
       murder, manslaughter, kidnapping, aggravated assault, forcible sex
       offenses ..., 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, comment. n.1(B)(iii) (emphasis added). This definition is

disjunctive. United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir.

2010). Thus, a felony conviction qualifies as a crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii) if the conviction is for an offense that either (1) is enumerated

in the first clause (the “enumerated offenses clause”) of the commentary’s

definition or (2) satisfies the second clause (the “elements clause”) of the definition

because it has “the use, attempted use, or threatened use of physical force” as an

element. See Garcia-Martinez, 845 F.3d at 1129 (“We refer to the first part of the

definition as the enumerated offenses clause and the second part as the elements

clause.”).

       The Government argues that Defendant’s Georgia aggravated assault

conviction satisfies both the enumerated offenses clause and the elements clause of

3
   The commentary “is authoritative” as to the meaning of a term used in the Guidelines “unless
it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of” the guideline at issue. United States v. Jordi, 418 F.3d 1212, 1216 (11th Cir. 2005).

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§ 2L1.2’s definition of crime of violence. As discussed below, we agree that

Defendant’s conviction qualifies as a crime of violence under the enumerated

offenses clause. Accordingly, we affirm Defendant’s sentence on that ground.4

III.   Enumerated Offenses Clause Analysis

       Although “aggravated assault” is included among the list of enumerated

offenses in § 2L1.2’s defining commentary, that does not mean Defendant’s

Georgia aggravated assault conviction automatically qualifies as a crime of

violence for purposes of § 2L1.2(b)(1)(A)(ii). See Palomino Garcia, 606 F.3d at

1327 (citing Taylor v. United States, 495 U.S. 575, 592 (1990) for the rule that

enumerated offenses in a federal sentencing statute “must have some uniform

definition independent of the labels employed by the various States’ criminal

codes” (internal quotation marks omitted)). 5 Under the analytical framework set

forth by the Supreme Court in Taylor and relied upon by this Court in Palomino

Garcia, a conviction only constitutes a crime of violence under the enumerated

offenses clause of § 2L1.2 if the elements of the statute of conviction are the same


4
  Because the enumerated offenses clause supports the sentencing enhancement applied by the
district court, we do not address the Government’s elements clause argument.
5
  Taylor arose in the context of a sentencing enhancement that is applicable under the Armed
Career Criminal Act (“ACCA”) when a defendant has three prior “violent felony” convictions,
but its analytical framework applies to the enhancement required under § 2L1.2 when a
defendant has been deported following a “crime of violence.” See Garcia-Martinez, 845 F.3d at
1129–30 (applying Taylor to determine whether the defendant’s conviction qualified as a crime
of violence under § 2L1.2’s enumerated crimes clause).

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as, or narrower than, the generic version of the enumerated offense. See id. at

1330–31. Thus, to determine whether Defendant’s conviction qualifies as a crime

of violence for purposes of § 2L1.2(b)(1)(A)(ii), we must first identify the essential

elements of generic aggravated assault. Id. at 1331. Then, we must compare those

elements to the Georgia aggravated assault statute to ensure that the crime

Defendant was convicted of committing “roughly corresponds” to the generic

version of aggravated assault. Id. (alteration accepted).

      A.     Generic Aggravated Assault

      This Court has already completed the first step of the analysis. In Palomino

Garcia, we defined generic “aggravated assault” for purposes of § 2L1.2 to mean

“a criminal assault accompanied by the aggravating factors of either the intent to

cause serious bodily injury to the victim or the use of a deadly weapon.” See id. at

1332 (emphasis added). The Court in Palomino Garcia arrived at that definition

by considering the elements of aggravated assault that are most commonly found

in state definitions of the offense and by consulting “prominent secondary sources,

such as criminal law treatises and the Model Penal Code.” See id. at 1331. As the

Court explained in Palomino Garcia, those sources indicate that the most common

aggravating factors underlying an aggravated assault conviction are “the means

used to commit the crime, such as use of a deadly weapon, and the consequences




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of the crime, such as serious bodily injury.” Id. at 1332 (internal quotation marks

omitted).

       Applying Palomino Garcia, generic aggravated assault has two essential

elements. Id. at 1332. First, there must be a “criminal assault.” Id. Second, the

assault must be accompanied by either “the intent to cause serious bodily injury to

the victim or the use of a deadly weapon.” Id. 6

       B.      Defendant’s Georgia Aggravated Assault Conviction

       Now we must compare the generic definition of aggravated assault set forth

in Palomino Garcia with the elements of the Georgia aggravated assault statute

Defendant was convicted of violating. See id. at 1331. In making that comparison,

we apply a categorical approach. See Mathis v. United States, 136 S. Ct. 2243,

2248 (2016). That is, we look at how the statute of conviction defines the offense

at issue rather than looking at the particular facts underlying the defendant’s

conviction. See Welch v. United States, 136 S. Ct. 1257, 1262 (2016) (“Under the

categorical approach, a court assesses whether a crime qualifies as a violent felony

in terms of how the law defines the offense and not in terms of how an individual

6
  The defendant in Palomino Garcia had a prior conviction for aggravated assault in violation of
Arizona Statute § 13-1204(A)(7), which defines aggravated assault to include an assault
committed on a law enforcement officer. Palomino Garcia, 606 F.3d at 1325. The Court held
that the conviction did not qualify as a crime of violence under the enumerated offenses clause of
§ 2L1.2(b)(1)(A)(ii) because the Arizona aggravated assault statute at issue did not require
“either serious bodily injury to the victim or the use of a deadly weapon” but rather only “a
simple assault with the sole aggravating factor being the victim’s status as a law enforcement
officer.” Id. at 1331–33.

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offender might have committed it on a particular occasion.” (internal quotation

marks omitted)). In certain cases, we may apply a modified version of the

categorical approach that allows us to look at “a limited class of documents”—

known as Shepard 7 documents and including such items as the indictment, jury

instructions, and plea agreement—“to determine what crime, with what elements, a

defendant was convicted of” so that we can then “compare that crime, as the

categorical approach commands, with the relevant generic offense.” Mathis, 136

S. Ct. at 2249. It is only appropriate to apply the modified categorical approach

when the statute of conviction is “divisible” in that it “list[s] elements in the

alternative, and thereby define[s] multiple crimes.” Id.

                1.      The aggravator component of Georgia’s aggravated assault
                        statute is divisible.

         Again, Georgia’s aggravated assault statute defines the offense of

aggravated assault to include an assault that is committed (1) with the intent to

murder, rape, or rob, (2) with a deadly weapon or an “object, device, or

instrument” that is “likely to or actually does result in serious bodily injury” when

used offensively, or (3) by discharging a gun in certain situations. O.C.G.A. § 16-

5-21(a) (2012). Considered as a whole, this statute is potentially overbroad

because some aggravated assault convictions, particularly convictions under


7
    Shepard v. United States, 544 U.S. 13 (2005).

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subsection (a)(1), might not categorically include the essential elements of generic

aggravated assault identified in Palomino Garcia. For example, an assault

committed with the intent to rob the victim might not categorically involve the

“intent to cause serious bodily injury” or “use of a deadly weapon” required by

Palomino Garcia’s definition of generic aggravated assault. See Palomino Garcia,

606 F.3d at 1332.

      Nevertheless, O.C.G.A. § 16-5-21(a) clearly is divisible as to the aggravator

component of the statute. A state criminal statute is divisible when it defines

multiple crimes and sets out the elements of each crime in the alternative. See

Mathis, 136 S. Ct. at 2248 (“Elements are the constituent parts of a crime’s legal

definition—the things the prosecution must prove to sustain a conviction.”

(internal quotation marks omitted)). That is precisely what O.C.G.A. § 16-5-21(a)

does. To be convicted under the statute, a defendant must commit an assault that is

aggravated by one of the factors set forth in O.C.G.A. § 16-5-21(a)(1)-(3).

Georgia law requires that the particular aggravator be alleged specifically, and that

it be proven beyond a reasonable doubt. See State v. Wyatt, 295 Ga. 257, 260

(2014) (“An indictment charging aggravated assault must allege the element that

aggravates the crime above a simple assault, in this case the use of a deadly

weapon or dangerous object.”). Thus, Georgia’s aggravated assault statute sets

forth three different crimes, each of which includes a unique aggravator element

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that must be specifically alleged and proven beyond a reasonable doubt for a

conviction. See id.

             2.       Defendant was convicted of assault with a deadly weapon or
                      other qualifying object under subsection (a)(2) of Georgia’s
                      aggravated assault statute.

      As discussed, when a statute is potentially overbroad and divisible, we may

apply the modified categorical approach to determine which crime, with what

elements, the defendant was convicted of committing, so that we may then

compare those elements with the generic version of the enumerated offense. See

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (“[T]he modified

approach . . . helps effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders opaque which element

played a part in the defendant’s conviction.”) Applying the modified categorical

approach in this case, it is apparent from the available Shepard documents that

Defendant was convicted of committing aggravated assault with a deadly weapon

or other qualifying “object, device, or instrument” in violation of O.C.G.A. § 16-5-

21(a)(2). The indictment charges Defendant with committing an assault on a

person “with a brick, an object which when used offensively against a person is

likely to result in serious bodily injury, by throwing it at and striking said victim.”

Defendant pled guilty to that charge.




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      Subsection (a)(2) of Georgia’s aggravated assault statute is not further

divisible. Thus, the essential elements of Defendant’s crime of conviction include:

(1) an assault, (2) that is committed “[w]ith a deadly weapon or with any object,

device, or instrument which, when used offensively against a person, is likely to or

actually does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2).

      C.     Comparison of Elements

      Defendant concedes, as he must, that assault with a deadly weapon qualifies

as generic aggravated assault under the definition of that offense set forth in

Palomino Garcia. But he argues that O.C.G.A. § 16-5-21(a)(2) is overbroad

because, in addition to assault with a deadly weapon, the statute also encompasses

assault with an “object, device, or instrument” that is “likely to or actually does

result in serious bodily injury” when used offensively. See O.C.G.A. § 16-5-

21(a)(2). We are unpersuaded by Defendant’s argument and, for the reasons

discussed below, we conclude that Georgia aggravated assault with a deadly

weapon or other qualifying “object, device, or instrument” in violation of O.C.G.A.

§ 16-5-21(a)(2) contains substantially the same elements as generic aggravated

assault. Accord United States v. Torres-Jaime, 821 F.3d 577, 585 (5th Cir. 2016)

(holding that Georgia aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2)

satisfies the enumerated offenses clause of § 2L1.2(b)(1)(A)(ii)).




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             1.     The Georgia Supreme Court has defined O.C.G.A. § 16-5-
                    21(a)(2) to require assault with a deadly weapon for a
                    conviction.

      The Georgia Supreme Court has held that the “object, device, or instrument”

phrase in O.C.G.A. § 16-5-21(a)(2) simply describes a particular type of deadly

weapon. See Green v. State, 291 Ga. 287, 295 (2012) (stating that the “object,

device, or instrument” language “is included in the phrase ‘deadly weapon’ when

that phrase is used as a general reference to the aggravating circumstance in

O.C.G.A. § 16-5-21(a)(2).”); State v. Easter, 297 Ga. 171, 173 (2015) (explaining

that, because the “object, device, or instrument” language “simply describes a

specific mode—rather than constituting an alternative mode—of ‘deadly weapon’

aggravated assault, . . . it is not error to refer to a ‘deadly weapon’ in instructing the

jury on an aggravated assault count predicated on the use of an ‘object, device, or

instrument.’”) (quoting Green, 291 Ga. at 295); see also Smith v. Hardrick, 266

Ga. 54, 55 (1995) (noting—in a case involving the use of defendant’s hands—that

Georgia aggravated assault requires the assault be “aggravated by either (a) an

intention to murder, rape or rob, or (b) the use of a deadly weapon”). Specifically,

the “object, device, or instrument” language refers to an object that is not a deadly

weapon per se, but that is a deadly weapon because of the manner in which it is

used by the defendant in a particular case. See Green, 291 Ga. at 295 (approving

the trial court’s instruction that “although hands are not deadly weapons per se,

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they may or may not be deadly weapons depending upon the manner in which they

are used and the circumstances of the case”); Easter, 297 Ga. at 172, 174 (noting

that the trial court had properly instructed the jury that “the assaulting object—here

a crowbar—was not a deadly weapon per se” but that it “may or may not be a

deadly weapon depending upon the manner in which it is used in the circumstances

of the case”). Thus, the Georgia Supreme Court has interpreted O.C.G.A. § 16-5-

21(a)(2) to require in every case for a conviction the use of a deadly weapon—be it

a deadly weapon per se (such as a gun), or an “object, device, or instrument” that is

used as a deadly weapon under the particular circumstances of the case (such as the

crowbar used by the defendant in Easter).

      We are bound by the Georgia Supreme Court’s interpretation of state law,

including its determination of the elements of O.C.G.A. § 16-5-21(a)(2). See

Johnson v. United States, 559 U.S. 133, 138 (2010). As clarified in Green and

reiterated in Easter, the Georgia Supreme Court has defined the essential elements

of a conviction for aggravated assault under O.C.G.A. § 16-5-21(a)(2) to include

(1) an assault (2) that is committed either with a per se deadly weapon or with an

“object, device, or instrument” that constitutes a deadly weapon because of the

manner in which it is used in a particular case. Use of a deadly weapon must be

shown for the conviction in Georgia. So, the elements correspond sufficiently with




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the definition of generic aggravated assault set forth in Palomino Garcia. See

Palomino Garcia, 606 F.3d at 1332.

             2.     Georgia’s definition of deadly weapon for purposes of
                    O.C.G.A. § 16-5-21(a)(2) to include an object that is deadly
                    because of the manner in which it is used is consistent with the
                    generic meaning of the term deadly weapon.

      Acknowledging the import of Green and Easter, Defendant argues that

Georgia’s definition of a qualifying deadly weapon under O.C.G.A. § 16-5-

21(a)(2) is overbroad. But Defendant concedes that the term deadly weapon in this

country generally refers to an object that is dangerous due either to its intrinsic

properties or to the manner in which it is used. For example, the Model Penal

Code defines “deadly weapon” to mean:

             any firearm or other weapon, device, instrument, material or
             substance, whether animate or inanimate, which in the manner
             it is used or is intended to be used is known to be capable of
             producing death or serious bodily injury.

Model Penal Code § 210.0(4) (emphasis added). See also Black’s Law Dictionary

1827 (10th ed. 2014) (defining “deadly weapon” to encompass any “device,

instrument, material, or substance that, from the manner in which it is used . . . is

calculated or likely to produce death” (emphasis added)); Gov’t of Virgin Islands

v. Robinson, 29 F.3d 878, 886 (3d Cir. 1994) (noting that, under the common law,

“whether a weapon is deadly depends upon two factors: (1) what it intrinsically is

and (2) how it is used.”). Georgia’s aggravated assault statute, as interpreted by

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the Georgia Supreme Court, similarly defines the term deadly weapon to

encompass both a per se deadly weapon as well as any other “object, device, or

instrument” that is “likely to or actually does result in serious bodily injury”

because of the manner in which it is used in a particular case. See O.C.G.A. § 16-

5-21(a)(2); Green, 291 Ga. at 295; Easter, 297 Ga. at 172, 173; Hardrick, 266 Ga.

at 54–55.

            3.     Georgia’s statutory definition of a deadly weapon to include an
                   object “which, when used offensively, actually does result in
                   serious bodily injury” is not overbroad.

     Finally, we reject Defendant’s more specific argument that Georgia’s

definition of a deadly weapon is overbroad because it includes an “object, device,

or instrument” that “actually does result in serious bodily injury.” Defendant

contends that this language encompasses the use of an object that happens to

cause injury in a particular case, regardless of the manner in which the object is

used and even if injury is unlikely. As an example of an assault committed with

such an object, Defendant proffers a hypothetical involving an “innocent,

innocuous golf ball.” In the hypothetical, a golfer disregards the presence of his

victim down the fairway as he tees his golf ball off in the victim’s direction.

According to Defendant, if the golf ball flies toward the victim and causes him to

reasonably fear an immediate and violent injury, then the golfer has committed

simple assault in violation of O.C.G.A. § 16-5-20(a). If the golf ball subsequently

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hits the victim and causes serious bodily injury, Defendant continues, then the

golfer has committed aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2).

Defendant posits that, although the golfer in this scenario has violated O.C.G.A.

§ 16-5-21(a)(2), he has not committed generic aggravated assault as defined by

Palomino Garcia.

      Defendant’s argument rests on a strained interpretation of O.C.G.A. § 16-5-

21(a)(2). Contrary to Defendant’s suggestion, O.C.G.A. § 16-5-21(a)(2) does not

encompass the commission of an assault with any object that just happens to result

in serious bodily injury, regardless of the manner in which the object is used. By

its plain terms, O.C.G.A. § 16-5-21(a)(2) applies only to an “object, device, or

instrument which, when used offensively against a person, is likely to or actually

does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). And as discussed

above, in order to be convicted under § 16-5-21(a)(2), a defendant must use either

(1) a per se deadly weapon or (2) an “object, device, or instrument” that qualifies

as a deadly weapon because of the manner in which it is used by a defendant in a

particular case. See Hardrick, 266 Ga. at 54–55 (concluding that an indictment

charging defendant with assaulting the victim “by placing his hands around [her]

neck and using his hands to apply pressure to her neck” was insufficient to charge

aggravated assault because “it did not state that [the defendant] placed his hands

around the victim’s neck in an attempt to use them as a deadly weapon, or in an

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attempt to rape, rob or murder the victim.”); Wheeler v. State, 232 Ga. App. 749,

750 (1998) (“Although hands, feet, and a telephone receiver are not deadly

weapons per se, a jury may find them to be deadly depending upon their use,

wounds inflicted, and other surrounding circumstances.” (internal quotation marks

omitted)); Fields v. State, 285 Ga. App. 345, 347 (2007) (noting that the jury

instructions had “properly directed the jury to determine whether [the defendant’s]

use of [a] baseball bat amounted to assault with a deadly weapon, and therefore to

aggravated assault”) .

      As for Defendant’s proffered hypothetical, to our knowledge there is no case

in which conduct remotely similar to that of Defendant’s imagined golfer has been

held by Georgia’s high courts to constitute aggravated assault under O.C.G.A.

§ 16-5-21(a)(2). Nor do we think a conviction under O.C.G.A § 16-5-21(a)(2) for

the conduct described in the hypothetical is a realistic probability. Assuming a

golf ball is an “object, device, or instrument” that could qualify as a deadly weapon

in an appropriate case, there are no facts to suggest the golf ball in the hypothetical

was used “offensively against a person” as required to trigger the deadly weapon

aggravator under O.C.G.A § 16-5-21(a)(2). The Supreme Court has cautioned that

we should not apply “legal imagination” when determining the elements of a state

criminal offense. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (noting that

“there must be a realistic probability, not a theoretical possibility, that the State

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             Case: 16-14925     Date Filed: 01/05/2018    Page: 20 of 20


would apply its statute to conduct that falls outside” the qualifying definition of a

predicate crime (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)

(internal quotation marks omitted))). See also James v. United States, 550 U.S.

192, 208 (2007) (explaining that the categorical approach does not require that

“every conceivable factual offense” must qualify), overruled on other grounds by

Samuel Johnson v. United States, 135 S. Ct. 2551 (2015). The hypothetical

proffered by Defendant violates that principle.

                                  CONCLUSION

      For the above reasons, we conclude that the elements of aggravated assault

in violation of O.C.G.A. § 16-5-21(a)(2) are substantially the same as the elements

of generic aggravated assault as defined by this Court in Palomino Garcia. As

such, we hold that Defendant’s Georgia aggravated assault conviction under

O.C.G.A. § 16-5-21(a)(2) satisfies the enumerated offenses clause of the operative

version of § 2L1.2, and warrants the 16-level sentencing enhancement provided for

in § 2L1.2(b)(1)(A)(ii). Defendant’s sentence is thus AFFIRMED.




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