     Case: 12-51243    Document: 00512559709     Page: 1   Date Filed: 03/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                  No. 12-51243                        March 13, 2014
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                            Plaintiff–Appellee,
v.

VALENTIN CARRASCO-TERCERO, also known as Gerardo Santacruz,

                                            Defendant–Appellant.




                 Appeal from the United States District Court
                      for the Western District of Texas


Before JONES, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Valentin Carrasco-Tercero appeals the sentence imposed by the district
court for unlawfully reentering the United States, in violation of 8 U.S.C.
§ 1326(a) and (b)(1), contending that his prior New Mexico conviction for
aggravated assault with a deadly weapon was not a crime of violence within
the meaning of § 2L1.2 of the federal Sentencing Guidelines. We affirm.
                                        I
      Carrasco-Tercero pled guilty to the crime of illegally reentering the
United States following deportation in violation of 8 U.S.C. § 1326(a) and (b)(1).
The Probation Office prepared a presentence report (PSR) that recommended
a total offense level of 17 and a criminal history category of II. This offense
level included the application of a 12-level enhancement pursuant to United
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                                           No. 12-51243
States Sentencing Guidelines Manual (U.S.S.G) § 2L1.2(b)(1)(A)(ii), which
applies to a defendant who was previously deported or unlawfully remained in
the United States after a “conviction for a felony that is . . . a crime of violence.” 1
The PSR applied this enhancement based upon Carrasco-Tercero’s 1985 New
Mexico conviction for aggravated assault.
      Carrasco-Tercero filed a written objection to the application of the crime
of violence enhancement and reiterated his objection at sentencing.                     He
contended that the New Mexico statute defining aggravated assault
criminalized conduct that was outside of the scope of the generic crime of
aggravated assault and did not contain as an element the use, attempted use,
or threatened use of physical force. The district court overruled his objection
and adopted the findings and recommendations of the PSR. The recommended
Sentencing Guidelines range was 27 to 33 months of imprisonment, and the
district court sentenced Carrasco-Tercero to serve 27 months. The district
court did not impose a term of supervised release. Carrasco-Tercero contends
on appeal that the district court miscalculated the applicable Guidelines range
by applying the § 2L1.2(b)(1)(A)(ii) crime of violence enhancement.
                                                II
       “We review de novo whether a prior conviction constitutes a crime of
violence within the meaning of the Guidelines.” 2 The Guidelines define a crime
of violence as (1) any offense in a list of enumerated offenses which includes
“aggravated assault,” or (2) “any other offense . . . that has as an element the
use, attempted use, or threatened use of physical force against the person of




      1   U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      2   United States v. Sanchez, 667 F.3d 555, 560 (5th Cir. 2012).
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                                        No. 12-51243
another.” 3 Carrasco-Tercero’s conviction qualifies as a crime of violence if it
meets either of these definitions. 4            Because we conclude that Carrasco-
Tercero’s conviction qualifies as a crime of violence under the “has as an
element” clause, we decline to decide whether it constitutes a crime of violence
as an enumerated offense as well.
                                              III
       This court employs a categorical approach in determining whether an
offense qualifies as a crime of violence under § 2L1.2. 5 “[W]e examine the
elements of the offense, rather than the facts underlying the conviction or the
defendant’s actual conduct, to determine whether an offense meets the
definition of a [crime of violence].” 6
       The New Mexico aggravated assault statute under which Carrasco-
Tercero was convicted provides:
       Aggravated assault consists of either:

                 A. unlawfully assaulting or striking at another with a deadly
                 weapon;

                 B. committing assault by threatening or menacing another
                 while wearing a mask, hood, robe or other covering upon the
                 face, head or body, or while disguised in any manner, so as
                 to conceal identity; or

                 C. willfully and intentionally assaulting another with intent
                 to commit any felony.




       3U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); see also United States v. Esparza-Perez, 681 F.3d
228, 229 (5th Cir. 2012).
       4   United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).
       5   Id.
       6 United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th Cir. 2009); see also United
States v. Calderon-Pena, 383 F.3d 254, 257-58 (5th Cir. 2004) (en banc).
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                                          No. 12-51243
       Whoever commits aggravated assault is guilty of a fourth degree
       felony. 7

       When, as here, the statute of conviction encompasses multiple, divisible
offenses, we apply a modified categorical approach. 8 We may consider parts of
the record of conviction to “pare down [the] statute” to determine the specific
offense of which the defendant was convicted. 9 As Carrasco-Tercero was found
guilty by a jury, the records we may examine include the charging documents
and the jury instructions actually given in the case. 10 We are informed by the
parties to this appeal that the jury instructions that were given in the prior
state proceeding are unavailable. The New Mexico Criminal Information is
available, and it alleged that Carrasco-Tercero “did[] unlawfully assault or
strike at [the victim] and said act was done with a deadly weapon, to-wit: a
firearm, contrary to Section 30-3-2, and 31-18-16, NMSA, 1978.”                        These
allegations track the language of New Mexico Statute § 30-3-2(A), regarding
aggravated assault, and § 31-18-16, which enhances the permissible
sentencing range if there is a finding that a firearm was used during the
commission of a noncapital felony. 11 Aggravated assault with a deadly weapon
under § 30-3-2(A) requires proof of general criminal intent, “defined as




       7   N.M. STAT. ANN. § 30-3-2.
       8United States v. Gore, 636 F.3d 728, 732 & n.17 (5th Cir. 2011) (citing Johnson v.
United States, 559 U.S. 133, 144-45 (2010)).
       9 Perez-Munoz v. Keisler, 507 F.3d 357, 361 (5th Cir. 2007); see also Descamps v. United
States, 133 S. Ct. 2276, 2284-86 (2013).
       10 United States v. Mohr, 554 F.3d 604, 607 (5th Cir. 2009) (citing Shepard v. United
States, 544 U.S. 13, 20 (2005)).
       11   N.M. STAT. ANN. § 31-18-16.
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                                        No. 12-51243
conscious wrongdoing or the purposeful doing of an act that the law declares
to be a crime.” 12
       Carrasco-Tercero asserts that “unlawfully assaulting or striking at
another with a deadly weapon” is not a crime of violence because the offense
does not necessarily have as an element the use, attempted use, or threatened
use of force against another person. Carrasco-Tercero concedes that “striking”
another with a deadly weapon would be a crime of violence, but contends that
“assaulting” another with a deadly weapon would not be because “assault”
under New Mexico law includes “the use of insulting language toward
another.” The term “assault,” as used in § 30-3-2, is defined in reference to the
basic New Mexico assault statute of § 30-3-1. 13 That statute says:
       Assault consists of either:

                 A. an attempt to commit a battery upon the person of
                 another;

                 B. any unlawful act, threat or menacing conduct which
                 causes another person to reasonably believe that he is in
                 danger of receiving an immediate battery; or

                 C. the use of insulting language toward another impugning
                 his honor, delicacy or reputation. 14

       Carrasco-Tercero cites the Supreme Court’s decision in Moncrieffe v.
Holder 15 for the proposition that courts must ensure that the least culpable act



       12 State v. Campos, 921 P.2d 1266, 1277 n.5 (N.M. 1996); see State v. Bachicha, 808
P.2d 51, 54 (N.M. Ct. App. 1991).
       13 State v. DeMary, 655 P.2d 1021, 1023 (N.M. 1982) (construing the phrase assaulting
in § 30-3-2 by reference to the definition of assault in § 30-3-1), overruled on other grounds by
State v. Armendariz, 141 P.3d 526 (N.M. 2006).
       14   N.M. STAT. ANN. § 30-3-1.
       15   133 S. Ct. 1678 (2013).
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                                         No. 12-51243
criminalized under a statute of conviction is a crime of violence in determining
whether an enhancement under § 2L1.2(b) of the Guidelines applies. 16 He
relies on subsection (C) of the New Mexico assault statute in contending that
a conviction could be obtained if the defendant simply used “insulting language
toward another” while holding a deadly weapon. As an offense, he continues,
this would not have as an element the use or threatened use of force against
another and therefore would not be a crime of violence. Carrasco-Tercero
argues that because his New Mexico record of conviction does not indicate
which of the categories of assault for which he was convicted, we are required
to “presume that [his] conviction ‘rested upon [nothing] more than the least of
th[e] acts’ criminalized.” 17 This least culpable act would not be a crime of
violence, he maintains.
       Our court has held in an unpublished opinion that a New Mexico
aggravated assault conviction for a violation of § 30-3-2(A) is categorically a
crime of violence under the “has as an element” clause of the Guidelines. 18 The
Tenth Circuit has reached the same conclusion. 19 However, the “insulting
language” construction offered by Carrasco-Tercero was not presented in either
of those cases. In United States v. Licon-Nunez, 20 this court assumed that the
New Mexico statute required an “attempt to offensively touch a victim with a



       16 Moncrieffe, 133 S. Ct. at 1684; see also United States v. Reyes-Mendoza, 665 F.3d
165, 167 (5th Cir. 2011) (“Where the record does not make clear the offender’s offense and
conviction, courts must ensure that the least culpable act that violates the statute constitutes
[a crime of violence under § 2L1.2].”).
        Moncrieffe, 133 S. Ct. at 1684 (second and third alterations in original); see also
       17

Reyes-Mendoza, 665 F.3d at 167.
       18 United States v. Licon-Nunez, 230 F. App’x 448, 450-52 (5th Cir. 2007)
(unpublished).
       19   See United States v. Ramon Silva, 608 F.3d 663, 669-74 (10th Cir. 2010).
       20   230 F. App’x 448 (5th Cir. 2007) (unpublished).
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                                            No. 12-51243
deadly weapon.” 21 In United States v. Ramon Silva, 22 a divided panel of the
Tenth Circuit evaluated only whether “apprehension causing” aggravated
assault, which “requires proof that [the] defendant threatened or engaged in
menacing conduct with a deadly weapon,” was a crime of violence. 23 Both our
court and the Tenth Circuit were applying the definitions of assault listed in
§§ 30-3-1(A) and (B), respectively, but neither panel evaluated the argument
that an aggravated assault conviction could be based on the definition of
assault in subsection (C).
       The only circuit court to assess the precise argument that is being
asserted here is the Sixth Circuit. In United States v. Rede-Mendez, 24 a divided
panel of the Sixth Circuit held that because the aggravated assault conviction
could be based on “insulting language” with a deadly weapon, a New Mexico
aggravated assault conviction is not a crime of violence within the meaning of
the “element” clause of the Guidelines. 25 “The broad definition of assault . . .
obstructs any argument that New Mexico aggravated assault (deadly weapon)
qualifies as a crime of violence under the ‘element’ prong.” 26 For similar
reasons, the court also held that it was not a crime of violence under the
enumerated-offense prong. 27



       21   Licon-Nunez, 230 F. App’x at 452.
       22   608 F.3d 663 (10th Cir. 2010).
       23   Ramon Silva, 608 F.3d at 670 (alteration in original).
       24   680 F.3d 552 (6th Cir. 2012).
       25 Rede-Mendez, 680 F.3d at 559-60 (“We recognize that Rede-Mendez does not contend
that his aggravated-assault conviction was based on the use of insulting language. . . . [But]
[w]ithout any indication as to whether Rede-Mendez’s aggravated-assault conviction fit
within the generic definition or could have involved the threatened use of physical force, we
cannot conclude that Rede-Mendez committed a crime of violence.”).
       26   Id. at 558.
       27   Id. at 557-58.
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                                        No. 12-51243
       With great respect, we are unpersuaded by the Sixth Circuit’s reasoning.
An aggravated assault conviction based upon “insulting language” is, at best,
a theoretical, rather than a realistic proposition under New Mexico law.
Theoretical applications of a statute to conduct that would not constitute a
crime of violence do not demonstrate that the statutory offense is categorically
not a crime of violence. As the Supreme Court explained in Moncrieffe v.
Holder, the categorical approach assumes that the defendant committed the
least culpable act to satisfy the count of conviction as long as there is “a realistic
probability, not a theoretical possibility, that the State would apply its statue
to [that conduct].” 28 “To show [a] realistic probability, an offender . . . must at
least point to his own case or other cases in which the state courts in fact did
apply the statute in the special . . . manner for which he argues.” 29 Here
Carrasco-Tercero has simply not shown that there was a realistic probability
that New Mexico would charge an individual with aggravated assault on the
basis of using insulting language while handling a deadly weapon. We agree
with Judge Richard Griffin, who pointed out in his dissent in Rede-Mendez
that, “[a]s common and legal sense would dictate, the New Mexico courts do
not recognize a theory of aggravated assault with a deadly weapon arising from
the use of insulting language toward another.” 30
       Carrasco-Tercero has failed to identify a single case where a New Mexico
court has convicted a defendant of aggravated assault based on this theory,
and has produced only one case where a simple assault conviction was upheld




        Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013) (emphasis added); see also Perez-
       28

Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012).
       29   Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
       30   Rede-Mendez, 680 F.3d at 563 (Griffin, J., dissenting) (internal quotation marks
omitted).
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                                         No. 12-51243
on the basis of subsection (C). 31 Even in that case, the defendant did not just
use “coarse, insulting, gutter terms,” but also “threatened [the victim] and her
children with bodily harm.” 32 Additionally, one New Mexico court has said,
“[t]he offense of aggravated assault requires proof that defendant threatened
or engaged in menacing conduct with a deadly weapon toward a victim, causing
the victim to believe he or she was about to be in danger of receiving an
immediate battery.” 33          Based on the case law, New Mexico courts seem to
recognize only two theories of aggravated assault with a deadly weapon—
either as an attempted battery with a deadly weapon or by engaging in
menacing conduct with a deadly weapon which causes the victim to reasonably
believe that he will be a victim of battery. 34 In other words, New Mexico courts
seem to limit aggravated assault convictions to theories of assault based on
either subsection (A) or (B) of § 30-3-1. We will refer to these two forms of
aggravated assault with a deadly weapon as “attempted battery” and
“apprehension-causing” assault.
       This reading of New Mexico law is consistent with New Mexico’s uniform
jury instructions.         Neither the jury instructions in effect at the time of
conviction nor the current uniform jury instructions provide instructions for
the charge of aggravated assault based on using insulting language. The 1985



       31   State v. Parrillo, 607 P.2d 636, 637-38 (N.M. Ct. App. 1979).
       32   Id. at 637.
       33   State v. Bachicha, 808 P.2d 51, 54 (N.M. Ct. App. 1991).
       34See State v. Mascarenas, 526 P.2d 1285, 1287 (N.M. Ct. App. 1974) (defining assault
in the context of assault with a deadly weapon “in terms of either an attempt to commit a
battery or any unlawful act, threat or menacing conduct causing a reasonable belief of
receiving an immediate battery”); State v. Woods, 483 P.2d 504, 505 (N.M. Ct. App. 1971)
(defining aggravated assault with a deadly weapon as requiring “an attempt to commit a
battery upon the person of another”); see also United States v. Miera, No. CR 12-3111, 2013
WL 6504297, at *20-21 (D.N.M. Nov. 22, 2013) (holding that “New Mexico does not recognize
the insulting-language theory for aggravated assault”).
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                                       No. 12-51243
uniform jury instructions list instructions for two types of aggravated assault.
New Mexico’s Criminal Uniform Jury Instruction (UJI Crim.) 3.03 provided
instructions for “Aggravated assault; attempted battery with a deadly
weapon,” and UJI Crim. 3.04 provided instructions for “Aggravated assault;
threat or menacing conduct with a deadly weapon.” 35 There was no instruction
for an aggravated assault conviction based upon “the use of insulting language
toward another impugning his honor, delicacy or reputation.” In fact, even the
second form of aggravated assault—threat or menacing conduct—envisions
actual physical force, “the touching or application of force,” in its
commentary. 36        The current version of the New Mexico uniform jury
instructions similarly lack any instructions for aggravated assault with a
deadly weapon based on an underlying use of insulting language. 37
      While we cannot consider these generic jury instructions in determining
the precise offense of which Carrasco-Tercero was convicted, that New Mexico
did not have approved jury instructions for an aggravated assault crime
predicated on “insulting language,” combined with the fact that Carrasco-
Tercero has presented no instance where a defendant has been charged with
such an offense or where a New Mexico court has mentioned it as a possibility,
leads this court to conclude that New Mexico does not in fact recognize this
theory of aggravated assault.
      Carrasco-Tercero’s sole contention on appeal concerns his “insulting
language” arguments. He does not contend that a conviction for “attempted


      35 NEW MEXICO CRIMINAL UNIFORM JURY INSTRUCTIONS (N.M. UJI CRIM.) 3.03 (Supp.
1982); N.M. UJI Crim. 3.04 (Supp. 1982).
      36   N.M. UJI CRIM. 3.04 n.2 (Supp. 1982).
      37 See N.M. UJI CRIM. 14-304 (2013) (“Aggravated Assault; Attempted Battery with a
Deadly Weapon”); N.M. UJI CRIM. 14-305 (2013) (“Aggravated Assault; Threat or Menacing
Conduct with a Deadly Weapon”); see also United States v. Licon-Nunez, 230 F. App’x 448,
451-52 (5th Cir. 2007) (discussing the current New Mexico uniform jury instructions).
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                                No. 12-51243
battery” or “apprehension-causing” assault under the New Mexico statute at
issue lacks the necessary elements to constitute a crime of violence. He states
in his brief that striking another with a deadly weapon “likely encompasses
the use of force,” and that using a deadly weapon while attempting to commit
battery may also constitute a crime that employs the threatened use of physical
force. We accordingly do not consider whether these means of committing
aggravated assault under § 30-3-2 would constitute a crime of violence.
                               *      *       *
      Because Carrasco-Tercero has failed to establish that the district court
erred in applying a 12-level sentencing enhancement under U.S.S.G. § 2L1.2,
the district court’s judgment is AFFIRMED.




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