                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 07-50387
                Plaintiff-Appellee,
               v.                                D.C. No.
                                              CR-07-00214-H-01
GERARDO GRAJEDA,
                                                 OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
          for the Southern District of California
         Marilyn L. Huff, District Judge, Presiding

                   Argued and Submitted
              May 7, 2008—Pasadena, California

                   Filed September 21, 2009

      Before: Raymond C. Fisher and Richard A. Paez,
    Circuit Judges, and James L. Robart, District Judge.*

                     Opinion by Judge Paez




 *The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.

                               13647
                   UNITED STATES v. GRAJEDA                13651
                          COUNSEL

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant U.S. Attorney, and Eugene S. Litvinoff, Assistant
U.S. Attorney, San Diego, California, for the plaintiff-
appellee.


                          OPINION

PAEZ, Circuit Judge:

   Gerardo Grajeda appeals from the 78-month sentence
imposed following his plea of guilty to illegal reentry in viola-
tion of 8 U.S.C. § 1326. In arriving at this sentence, the dis-
trict court applied a sixteen-level enhancement to Grajeda’s
offense level based on a determination that Grajeda had been
previously convicted of assault with a deadly weapon or by
means likely to produce great bodily injury under California
Penal Code section 245(a)(1), and that such conviction was a
“crime of violence” under United States Sentencing Guide-
lines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii).

   In this appeal, we consider whether a prior conviction for
a violation of California Penal Code section 245(a)(1) quali-
fies as a “crime of violence” within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). We conclude that it does. We also con-
sider and reject Grajeda’s claims that the district court failed
to resolve disputed factual issues concerning his prior convic-
tions, as required by Rule 32(i) of the Federal Rules of Crimi-
nal Procedure, and that the district court erred by enhancing
his sentence on the basis of prior convictions that were neither
alleged in the indictment nor proven beyond a reasonable
doubt. We therefore affirm the sentence, but remand for the
13652             UNITED STATES v. GRAJEDA
district court to delete the reference in the judgment to 8
U.S.C. § 1326(b) as a crime of conviction.

                  I.   Factual Background

   Grajeda, a Mexican citizen, was indicted on January 31,
2007, on one count of illegal reentry in violation of 8 U.S.C.
§ 1326. Grajeda pled guilty before a magistrate judge, and, on
August 20, 2007, the district court accepted his plea.

   A probation officer prepared and submitted a Presentence
Report (“PSR”) for the court’s consideration. The PSR out-
lined a lengthy criminal record, including a 1996 conviction
for assault with a deadly weapon or by means likely to pro-
duce great bodily injury, in violation of California Penal Code
section 245(a)(1). The report calculated an advisory guide-
lines range of seventy to eighty-seven months, and recom-
mended a sentence of seventy-eight months. The guidelines
calculation relied upon application of a sixteen-level enhance-
ment to Grajeda’s offense level based on a determination that
Grajeda’s prior conviction under California Penal Code sec-
tion 245(a)(1) was a crime of violence. Grajeda objected to
the PSR on the ground that the statutory maximum for illegal
reentry was two years, and argued that his prior convictions
could not be used to sentence him beyond that maximum
because they were not alleged in the indictment and proven
beyond a reasonable doubt to a jury, and, alternatively,
because they were not proven by clear and convincing evi-
dence.

   The district court conducted a combined plea and sentenc-
ing hearing on August 20, 2007. The court overruled Graje-
da’s objections to the PSR, adopted the PSR’s
recommendations, and sentenced Grajeda to seventy-eight
months in prison. The judgment listed the “Title and Section”
of the offense as “8 USC 1326(a) and (b).” Grajeda timely
appealed.
                   UNITED STATES v. GRAJEDA              13653
                  II.   Standard of Review

   We review de novo the district court’s compliance with
Rule 32 of the Federal Rules of Criminal Procedure. See
United States v. Thomas, 355 F.3d 1191, 1194 (9th Cir. 2004).
Whether a conviction under California Penal Code section
245(a)(1) constitutes a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) is a question of law that we review de
novo. United States v. Esparza-Herrera, 557 F.3d 1019,
1021-22 (9th Cir. 2009) (per curiam).

                        III.   Rule 32

   Grajeda first objects to his sentence on the ground that the
district court failed to resolve factual disputes regarding the
prior convictions alleged in the PSR; he argues that in failing
to do so, the court violated Rule 32 of the Federal Rules of
Criminal Procedure. We disagree with Grajeda’s characteriza-
tion of the dispute presented to the district court. Because
Grajeda’s objections to the PSR were legal, not factual, the
district court was not required to make any factual determina-
tions, and so committed no error.

   [1] Rule 32 provides that a sentencing court “may accept
any undisputed portion of the presentence report as a finding
of fact,” but that the court “must—for any disputed portion of
the presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R.
Crim. P. 32(i)(3)(A)-(B). On appeal, Grajeda argues that he
“controverted” the fact of his prior convictions in his objec-
tions to the PSR, and that the district court improperly relied
on the 1996 section 245(a)(1) conviction listed in the PSR to
enhance his sentence without ruling on the factual dispute.

  [2] A review of Grajeda’s objections, however, as laid out
in his sentencing memorandum, leaves no doubt that his
13654                 UNITED STATES v. GRAJEDA
objections raised only legal arguments, not factual ones. Gra-
jeda did not controvert the accuracy of the PSR or argue that
he had not been convicted of the listed crimes. Rather, he
argued that under United States v. Booker, 543 U.S. 220
(2005), the government was required to prove the prior con-
victions beyond a reasonable doubt, or, alternatively, by clear
and convincing evidence, before the court could rely on the
convictions to enhance his sentence, and that the government
had failed to do so. The transcript from the sentencing hearing
also reflects that Grajeda’s objections to use of the prior con-
victions in sentencing were purely legal, as Grajeda’s counsel
acknowledged the prior felony conviction under section
245(a)(1) and noted only that he had “submitted some legal
objections” to the proposed sentencing enhancement.

   [3] Finally, the district court did rule on Grajeda’s objec-
tions, expressly overruling them during the sentencing hear-
ing. The court’s ruling was proper under United States v.
Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000), which held
that an “uncontroverted PSR” is “clear and convincing evi-
dence” of a prior conviction, and supports the application of
a sentencing enhancement based on such conviction. Id. at
1165. The district court thus complied with Rule 32 and did
not err by relying on the prior convictions listed in the PSR.

            IV.     Crime of Violence Enhancement

   To determine whether the district court properly applied the
sixteen-level “crime of violence” sentencing enhancement in
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2006)1 based on Grajeda’s con-
  1
   The district court applied the 2006 edition of the United States Sen-
tencing Guidelines Manual in calculating Grajeda’s sentencing guideline
range, and all references are to that edition. The 2006 and 2008 versions
of § 2L1.2(b)(1)(A)(ii) are identical, and instruct the court to increase a
defendant’s base offense level by sixteen levels “[i]f the defendant previ-
ously was deported, or unlawfully remained in the United States, after . . .
a conviction for a felony that is . . . a crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
                        UNITED STATES v. GRAJEDA                      13655
viction under California Penal Code section 245(a)(1), we
apply the approach set forth in Taylor v. United States, 495
U.S. 575, 602 (1990). Esparza-Herrera, 557 F.3d at 1022. We
first consider whether the offense defined by section 245(a)(1)
is categorically a crime of violence by assessing whether the
“full range of conduct covered by [the statute] falls within the
meaning of that term.” United States v. Juvenile Female, 566
F.3d 943, 946 (9th Cir. 2009) (quoting Valencia v. Gonzales,
439 F.3d 1046, 1049 (9th Cir. 2006)). If so, our inquiry is
complete. If not, we turn to the modified categorical approach
“to determine if there is sufficient evidence [in the record] to
conclude that [Grajeda] was convicted of the elements of the
generically defined crime.” United States v. Vidal, 504 F.3d
1072, 1077 (9th Cir. 2007) (en banc) (quoting Chang v. INS,
307 F.3d 1185, 1189 (9th Cir. 2002)) (first alteration in origi-
nal). Here, because we conclude that section 245(a)(1) is cate-
gorically a crime of violence, we do not apply the modified
categorical approach.

                                      A.

   [4] An offense is a “crime of violence” for purposes of
§ 2L1.2(b)(1)(A)(ii) if it either (1) constitutes one of the
crimes listed in the “enumerated offense” prong of the defini-
tion, or (2) “has as an element the use, attempted use, or
threatened use of physical force against the person of another”
under the definition’s second clause, referred to as the “ele-
ment” prong or test. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2006);2
  2
   The definition provides in full:
      “Crime of violence” means any of the following: murder, man-
      slaughter, 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
      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, cmt. n.1(B)(iii) (2006). The 2008 definition differs
slightly in its description of the enumerated offenses; the only difference
in the “element” prong is the insertion of the word “other” between “any”
and “offense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2008).
13656                  UNITED STATES v. GRAJEDA
see also United States v. Gomez-Leon, 545 F.3d 777, 787-88
(9th Cir. 2008) (detailing and labeling the approaches).

   On appeal, the government argues that assault with a
deadly weapon or force likely to cause great bodily injury
under section 245(a)(1) requires proof of the use, attempted
use, or threatened use of physical force against another per-
son, and that the offense is therefore a crime of violence under
the element prong of the § 2L1.2 definition. We agree, and
therefore need not address whether section 245(a)(1) also
qualifies as an “aggravated assault” under the enumerated
offense prong of § 2L1.2.

   Over the past several years, courts have endeavored to
delineate the contours of the various “crime of violence” defi-
nitions. See Gomez-Leon, 545 F.3d at 786-88 (providing over-
view). The most significant advances have concerned the
mens rea required to prove “use of physical force.” In Leocal
v. Ashcroft, the Supreme Court held that the phrase “use . . .
of physical force against the person or property of another,”
contained in the crime of violence definition provided in 18
U.S.C. § 16(a),3 required proof of active employment of force,
and could not be satisfied by negligent or accidental conduct.
543 U.S. 1, 9-11 (2004). In Fernandez-Ruiz v. Gonzales, this
court, sitting en banc, followed several other circuits in
extending Leocal, holding that “neither recklessness nor gross
negligence is a sufficient mens rea to establish that a convic-
tion is for a crime of violence.” 466 F.3d 1121, 1130 (9th Cir.
2006) (en banc).

   [5] Although both Leocal and Fernandez-Ruiz dealt with
the “crime of violence” definition provided in 18 U.S.C.
  3
   The Comprehensive Crime Control Act of 1984 includes a statutory
definition for “crime of violence,” codified at 18 U.S.C. § 16, which is
applicable to statutes using the phrase. See Gomez-Leon, 545 F.3d at 787.
This statutory definition partially overlaps with the Sentencing Guidelines
definition provided in U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). See id. at 787-88.
                       UNITED STATES v. GRAJEDA                       13657
§ 16(a), we subsequently applied their reasoning to the ele-
ment prong of § 2L1.2, noting that “the relevant definitions
under § 16(a) and U.S.S.G. § 2L1.2 are identical.”4 United
States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007).
Therefore, a predicate offense must require intentional use,
attempted use, or threatened use of force to constitute a crime
of violence under § 2L1.2; neither recklessness nor negli-
gence is enough. See id.; see also Gomez-Leon, 545 F.3d at
787-88.

   [6] We have also addressed the nature of the force required
under the § 2L1.2 crime of violence definition, holding that
such force “must actually be violent in nature.” United States
v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005) (inter-
nal quotation marks and alterations omitted); see also Ortega-
Mendez v. Gonzales, 450 F.3d 1010, 1016-17 (9th Cir. 2006)
(holding that simple battery under California Penal Code sec-
tion 242 is not a crime of violence under 18 U.S.C. § 16(a)
because it can be based on “the least touching”). With this
understanding of the § 2L1.2 crime of violence enhancement,
we examine section 245(a)(1) to determine whether it fits
within the enhancement’s element prong.

                                     B.

   [7] California Penal Code section 245(a)(1) imposes crimi-
   4
     Like the element prong in § 2L1.2, the crime of violence definition in
§ 16(a) includes any “offense that has as an element the use, attempted
use, or threatened use of physical force.” 18 U.S.C. § 16(a); U.S.S.G.
§ 2L1.2, cmt. n.1(b)(iii) (same). The sole difference is that the § 16(a) def-
inition is inclusive of force “against the person or property of another,”
whereas the Guidelines definition covers only force “against the person of
another.” Id. (emphasis added). Section 16(b) offers an additional defini-
tion, based on the “risk that physical force . . . may be used” that is not
included in the § 2L1.2 definition. 18 U.S.C. § 16(b) (defining as a crime
of violence “any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person or prop-
erty of another may be used in the course of committing the offense”).
13658                  UNITED STATES v. GRAJEDA
nal liability on “[a]ny person who commits an assault upon
the person of another with a deadly weapon or instrument
other than a firearm or by any means of force likely to pro-
duce great bodily injury.”5 The statute thus requires two basic
elements, the second defined in the disjunctive: the defendant
must have (1) committed an assault (2) using a deadly weapon
or instrument or any other “means of force likely to produce
great bodily injury.” See People v. Russell, 28 Cal. Rptr. 3d
862, 865-66 (Ct. App. 2005). The element of “assault” is
defined in California Penal Code section 240 as “an unlawful
attempt, coupled with a present ability, to commit a violent
injury on the person of another.” Cal. Penal Code § 240 (West
1995); see also People v. Colantuono, 865 P.2d 704, 708
(Cal. 1994).

   [8] By criminalizing “unlawful attempt[s] . . . to commit a
violent injury on the person of another” with a deadly weapon
or force likely to produce serious injury, the statutory lan-
guage requires at least “attempted use . . . of physical force
against the person of another.” U.S.S.G. § 2L1.2, cmt.
n.1(B)(iii). On its face, section 245(a)(1) would thus qualify
as a crime of violence under the element prong of § 2L1.2.
However, “in determining the categorical reach of a state
crime, we consider not only the language of the state statute,
but also the interpretation of that language in judicial opin-
ions.” Ortega-Mendez, 450 F.3d at 1016. We therefore pro-
  5
   California Penal Code section 245(a)(1) provides in full:
      Any person who commits an assault upon the person of another
      with a deadly weapon or instrument other than a firearm or by
      any means of force likely to produce great bodily injury shall be
      punished by imprisonment in the state prison for two, three, or
      four years, or in a county jail for not exceeding one year, or by
      a fine not exceeding ten thousand dollars ($10,000), or by both
      the fine and imprisonment.
Cal. Penal Code § 245(a)(1) (West 1995). Neither section 245(a)(1) nor
section 240, which defines the term “assault,” has changed since Grajeda’s
conviction in 1995.
                   UNITED STATES v. GRAJEDA                13659
ceed to consider Grajeda’s arguments that section 245(a)(1),
as construed by the California courts, is categorically over-
broad.

                               1.

   Grajeda first argues that California Penal Code section
245(a)(1) does not require force that is “violent in nature,”
and therefore does not constitute a crime of violence. We dis-
agree. Although Grajeda is correct that under California law,
assault can be accomplished through “the least touching,”
People v. Rocha, 479 P.2d 372, 377 n.12 (Cal. 1971), even the
least touching with a deadly weapon or instrument is violent
in nature.

   [9] California courts have long interpreted the “violent inju-
ry” element in criminal assault to require only “the least
touching” that is unconsented or otherwise wrongful; such
touching “need not be violent or severe.” Colantuono, 865
P.2d at 709 n.4 (quoting Rocha, 479 P.2d at 377 n.12). This
would seem to put section 245 beyond the reach of the
§ 2L1.2 crime of violence definition, which requires that the
force used be “violent in nature.” Lopez-Montanez, 421 F.3d
at 929. Indeed, in Ortega-Mendez, we held that simple battery
in California is not categorically a crime of violence under the
element test in 18 U.S.C. § 16(a) because it can be based on
“the least touching.” 450 F.3d at 1016.

   [10] Unlike simple assault, however, section 245(a)(1)
requires that the assault be committed either (1) “with a
deadly weapon or instrument” or (2) “by any means of force
likely to produce great bodily injury.” If the conviction is
based on “force likely to produce great bodily injury,” such
force must necessarily go beyond the “least touching,” and
represents “actual force” that is violent in nature.

  [11] Similarly, we conclude that even the “least touching”
with a deadly weapon or instrument, which California defines
13660             UNITED STATES v. GRAJEDA
as any object “used in such a manner as to be capable of pro-
ducing and likely to produce, death or great bodily injury,”
People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997), is violent
in nature and demonstrates at a minimum the threatened use
of actual force. In so holding, we follow this court’s similar
conclusion that assault with a firearm under California Penal
Code section 245(a)(2) has as an element the use or threat-
ened use of “actual force,” as required under § 16(a), even
though assault in California can generally be committed
through only “unconsented touching.” United States v. Heron-
Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per curiam); cf.
Juvenile Female, 566 F.3d at 947-48 (holding that “assault
involving a deadly or dangerous weapon or resulting in bodily
injury” under 18 U.S.C. § 111 requires at least the threatened
use of physical force and is a crime of violence under 18
U.S.C. § 16(a)).

   Our holding also puts us in accord with the Fifth and Tenth
Circuits. In United States v. Treto-Martinez, the Tenth Circuit
considered whether a Kansas aggravated battery offense con-
stituted a crime of violence under the element test, and con-
cluded that a person who touches another “with a deadly
weapon in ‘a rude, insulting or angry manner,’ has at the very
least ‘threatened use of physical force’ for purposes of
§ 2L1.2(b)(1)(A).” 421 F.3d 1156, 1160 (10th Cir. 2005),
cert. denied, 546 U.S. 1118 (2006). The Fifth Circuit adopted
the Tenth Circuit’s reasoning in holding that “the touching of
an individual with a deadly weapon creates a sufficient threat
of force to qualify as a crime of violence” under the element
test in § 2L1.2. United States v. Dominguez, 479 F.3d 345,
348-49 (5th Cir. 2007).

   [12] We therefore hold that the force required by section
245(a)(1) is sufficiently “violent in nature” to satisfy the
§ 2L1.2 crime of violence definition.

                              2.

   Grajeda next argues that section 245(a)(1), as construed by
the California courts, does not require proof of sufficiently
                        UNITED STATES v. GRAJEDA                        13661
intentional conduct to qualify as a crime of violence.
Although some language from state court opinions supports
this assertion, the case law is decidedly mixed, and we are
regardless bound by this court’s previous conclusions to the
contrary.

   [13] The mens rea required for assault under California law
has been the subject of a long, tortured, and ongoing set of
explanations in the California courts. See People v. Williams,
29 P.3d 197, 200 (Cal. 2001) (“Over the decades, we have
struggled to fit th[e statutory] definition of assault into our
constantly evolving framework of criminal mental states.”);
People v. Colantuono, 865 P.2d at 708 (“Deciphering the req-
uisite intent for assault and assault with a deadly weapon has
been a recurring task for this court.”). The definition of
assault as “an unlawful attempt . . . to commit a violent inju-
ry” would seem to suggest that assault is a specific intent
crime in California. Cal. Penal Code § 240; see also Colan-
tuono, 865 P.2d at 708 (stating that assault “is an attempt to
commit a battery” (citation omitted)); see generally Joshua
Dressler, Understanding Criminal Law § 27.05[A] (3d ed.
2001) [hereinafter Dressler] (“[A]n attempt is a specific intent
offense . . . .”). The California courts, however, have stead-
fastly held that “assault with a deadly weapon is a general
intent crime.”6 Rocha, 479 P.2d at 376 (emphasis added);
  6
    The two most recent California Supreme Court cases holding that
assault is not a specific intent crime prompted strong minority opinions
arguing the contrary. See Williams, 29 P.3d 197, 205-09 (Kennard, J., dis-
senting); Colantuono, 865 P.2d 704, 715-18 (Kennard, J., concurring in
part and dissenting in part); see also People v. Wright, 123 Cal. Rptr. 2d
494 (Ct. App. 2002) (following Williams but arguing at length that it is
wrongly decided).
   There is general agreement that the original impetus for treating assault
as a general, rather than specific, intent crime was to rule out the defense
of “voluntary intoxication.” See Colantuono, 865 P.2d at 708 (explaining
that the decision was based, at least in part, on “policy considerations” in
order to avoid “the anomalous result of [allowing evidence of voluntary
intoxication] . . . to relieve a man of responsibility for the crimes of assault
with a deadly weapon or simple assault, which are so frequently commit-
ted in just such a manner” (internal quotation marks omitted)).
13662                 UNITED STATES v. GRAJEDA
accord Williams, 29 P.3d at 203; Colantuono, 865 P.2d at
709.

   [14] The “general intent” designation, however, does not
define a particular mens rea; it merely clarifies that the crime
does not require “specific intent.”7 See Rocha, 479 P.2d at 376
(“[A]ssault with a deadly weapon is a general intent crime. It
remains to define what that intent is.”); Williams, 29 P.3d at
201 (same). The California Supreme Court’s two most recent
attempts to define the mental state required under state assault
statutes are Colantuono and Williams.

   In Colantuono, the court attempted to explain the mens rea
for assault as follows:

      The intent to cause any particular injury, to severely
      injure another, or to injure in the sense of inflicting
      bodily harm is not necessary. The pivotal question is
      whether the defendant intended to commit an act
      likely to result in such physical force, not whether he
      or she intended a specific harm. Because the nature
      of the assaultive conduct itself contemplates physical
      force or “injury,” a general intent to attempt to com-
      mit the violence is sufficient to establish the crime.

865 P.2d at 712 (internal citations omitted). Emphasizing that
the unlawful consequences of an assault need not be specifi-
cally intended, the Colantuono court concluded that “the nec-
essary mental state is ‘an intent merely to do a violent act.’ ”
Id. (quoting People v. Hood, 462 P.2d 370, 378 (Cal. 1969)).

  In 2001, the California Supreme Court revisited the mental
  7
   See generally 1 W.R. LaFave & A. Scott, Substantive Criminal Law
§ 5.2(e) (2d ed. 2003); Dressler § 10.06 (“The terms ‘specific intent’ and
‘general intent’ are the bane of criminal law students and lawyers . . . .
[Many] text writers recommend that they be abandoned altogether.” (inter-
nal quotation marks omitted)).
                   UNITED STATES v. GRAJEDA               13663
state required for assault. See Williams, 29 P.3d at 201 (recog-
nizing “apparent confusion engendered by Colantuono”). In
doing so, the court “reaffirmed” that assault is not a “specific
intent” crime, id. at 201, and that “mere recklessness or crimi-
nal negligence is still not enough,” id. at 203. The court also
offered the following explanation:

    We may attribute much of th[e] confusion to the fact
    that the gravamen of assault is the likelihood that the
    force applied or attempted to be applied will result
    in great bodily injury. Because assault criminalizes
    conduct based on what might have happened—and
    not what actually happened—the mental state for
    assault incorporates the language of probability, i.e.,
    direct, natural and probable consequences. This lan-
    guage, however, arguably implies an objective men-
    tal state consistent with a negligence standard.

Williams, 29 P.3d at 202 (citations and internal quotation
marks omitted). The court, however, emphasized that it was
not adopting a “negligence standard,” continuing:

    [A] defendant is only guilty of assault if he intends
    to commit an act which would be indictable as a bat-
    tery, if done, either from its own character or that of
    its natural and probable consequences. Logically, a
    defendant cannot have such an intent unless he actu-
    ally knows those facts sufficient to establish that his
    act by its nature will probably and directly result in
    physical force being applied to another, i.e., a bat-
    tery. In other words, a defendant guilty of assault
    must be aware of the facts that would lead a reason-
    able person to realize that a battery would directly,
    naturally and probably result from his conduct. He
    may not be convicted based on facts he did not know
    but should have known. He, however, need not be
    subjectively aware of the risk that a battery might
    occur.
13664                UNITED STATES v. GRAJEDA
Id. at 202-03 (emphasis added) (citations and internal quota-
tion marks omitted).

   Although the Williams court insisted that the above lan-
guage did not define the mens rea of assault in negligence
terms, the dissent disagreed. See id. at 207 (Kennard, J., dis-
senting) (noting that “[c]riminal negligence is determined by
an objective standard based on whether a reasonable person
in the defendant’s position would have been aware of the risk
of harm to another”); see also People v. Wright, 123 Cal.
Rptr. 2d at 496 (following Williams with reservations and
treating it as having defined “negligent assault”).

   Grajeda, echoing the Williams dissent, argues that despite
the majority’s protestations, California’s definition of assault
requires merely criminally negligent conduct, and thus does
not have as an element the intentional use of force, as man-
dated by the crime of violence definition in § 2L1.2. Certainly
some of the Williams language supports this position, particu-
larly in focusing on whether the defendant knows facts which
would lead a “reasonable person to realize” that his conduct
would “probably” cause an injury and disclaiming a standard
that would require proof that the defendant intended such
injury. See Williams, 29 P.3d at 202-03; id. at 203 n.3 (“For
example, a defendant who honestly believes that his act was
not likely to result in a battery is still guilty of assault if a rea-
sonable person, viewing the facts known to defendant, would
find that the act would directly, naturally and probably result
in a battery.”).

   At the same time, Williams and Colantuono elsewhere sug-
gest that the use of force must be intentional, and only the
specific injury need not be intended. See Colantuono, 865
P.2d at 712 (“[U]pon proof of a willful act that by its nature
will directly and immediately cause ‘the least touching’ it is
immaterial whether or not the defendant intended to violate
the law or knew that his conduct was unlawful. The intent to
cause any particular injury, to severely injure another, or to
                   UNITED STATES v. GRAJEDA                13665
injure in the sense of inflicting bodily harm is not necessary.”
(internal citations omitted)); Williams, 29 P.3d at 202 (“An
assault occurs whenever the next movement would . . . com-
plete the battery . . . . As a result, a specific intent to injure
is not an element of assault because the assaultive act, by its
nature, subsumes such an intent.” (internal citations omitted));
see also People v. Chance, 189 P.3d 971, 973 n.2 (Cal. 2008)
(“It has long been established that the ‘injury’ element of the
assault statute is satisfied by any attempt to apply physical
force to the victim . . . . (emphasis added)). Thus the court
explained in Colantuono that “the necessary mental state” for
section 245(a)(1) is “an intent merely to do a violent act,”
with “the consequences of that act serv[ing] only to inform
the inquiry of whether the defendant attempted physical force
against the person of another . . . .” 865 P.2d at 712 (internal
citation omitted).

   We also note that at least one California intermediate court
has approved standard jury instructions for section 245 stating
that the government need not “prove that the defendant actu-
ally intended to use force against someone.” People v. Flores,
68 Cal. Rptr. 3d 472, 475 (Ct. App. 2007) (quoting California
Criminal Jury Instruction (“CALCRIM”) 875). While this
adds support to Grajeda’s argument, we are not convinced
that it is dispositive under Leocal and Fernandez-Ruiz in light
of the California Supreme Court’s statements that section
245(a)(1) requires proof of an intentional “violent act” with a
deadly weapon or instrument or with force likely to cause
serious bodily injury that “by its nature will directly and
immediately cause” the application of physical force to
another. Colantuono, 865 P.2d at 712. While this formulation
of the necessary mens rea does not fit neatly with the standard
articulated in Fernandez-Ruiz, it satisfies the concerns animat-
ing Leocal and Fernandez-Ruiz that the proscribed conduct be
“violent” and “active,” and the use of force not merely acci-
dental, as in an automobile accident stemming from drunk or
reckless driving. See Leocal, 543 U.S. at 9 (noting that while
“a person would ‘use . . . physical force against’ another when
13666                  UNITED STATES v. GRAJEDA
pushing him . . . we would not ordinarily say a person ‘use[s]
. . . physical force against’ another by stumbling and falling
into him”); id. at 11 (stating that the term crime of violence
“suggests a category of violent, active crimes” and thus
should not encompass merely accidental conduct such as DUI
offenses); Fernandez-Ruiz, 466 F.3d at 1130 (explaining that
under an Arizona domestic assault statute, “a wife and mother
could be convicted . . . by recklessly running a stop sign and
causing a traffic accident that injured her passenger-husband
and child,” and that “[s]uch conduct cannot, in the ordinary
sense, be called ‘active’ or ‘violent’ ” (quoting Leocal, 543
U.S. at 11)).

   [15] But in parsing the mens rea required by section 245(a),
we do not write on a blank slate. In Heron-Salinas, we
recently held that assault with a firearm under California
Penal Code section 245(a)(2) is categorically a crime of vio-
lence under 18 U.S.C. § 16(a) and 16(b).8 566 F.3d at 899. In
   8
     Additionally, we held that section 245(a)(1) is a crime of violence for
the purposes of 18 U.S.C. § 16 in Ortiz-Magana v. Mukasey, 542 F.3d
653, 654 (9th Cir. 2008). We are, however, hesitant to rely on Ortiz-
Magana in considering Grajeda’s arguments that section 245(a)(1) is not
a crime of violence under § 2L1.2 for several reasons. First, in Ortiz-
Magana the defendant conceded that section 245(a)(1) was a crime of vio-
lence under § 16, and the possibility that the offense might not require the
necessary mens rea was neither raised nor addressed, as the court focused
only on the defendant’s argument that a conviction based on aiding or
abetting was not a crime of violence. 542 F.3d at 654, 659; see also
Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1082 (9th Cir.
2006) (noting that where a statement is “merely a prelude to another legal
issue that commands the panel’s full attention, it may be appropriate to re-
visit the issue in a later case” (citation omitted)). Second, and more impor-
tantly, Ortiz-Magana does not specify whether the offense qualified as a
crime of violence under the element test of § 16(a), which is materially
identical to the § 2L1.2 element test, or the “substantial risk test” of
§ 16(b). The § 16(b) substantial risk test “sweeps more broadly than” the
element tests in § 16(a) and § 2L1.2 because the latter tests require proof
of the intentional use of force, whereas § 16(b) requires only that the
offense involve a substantial risk that force will be intentionally used. Leo-
                       UNITED STATES v. GRAJEDA                      13667
so holding, the Heron-Salinas court specifically rejected the
argument that California assault does not require the neces-
sary mens rea to qualify as a crime of violence. Id. Quoting
Williams, 29 P.3d at 204, for the proposition that assault “re-
quires an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably
and directly result in the application of physical force against
another,” the Heron-Salinas court concluded simply that
“[t]he mens rea requirement is met.” 566 F.3d at 899.

   [16] Heron-Salinas forecloses Grajeda’s argument that the
mens rea in section 245(a)(1) is insufficient to meet the
requirements of the § 2L1.2 crime of violence definition. The
mens rea element for assault with a firearm under section
245(a)(2) is the same as that required for assault with a deadly
weapon under section 245(a)(1); both offenses rely on the
definition of assault in California Penal Code section 240 for
their mens rea element, and the critical Williams and Colan-
tuono cases interpreting that element are applicable to both
offenses.

   [17] Further, though this court has evinced some hesitation
in applying crime of violence determinations under § 16 to

cal, 543 U.S. at 9-11; see also Gomez-Leon, 545 F.3d at 787. A holding
that an offense is a crime of violence under the § 16(b) definition is there-
fore not determinative of whether the offense is also a crime of violence
under § 2L1.2. Cf. Lopez-Montanez, 421 F.3d at 930-31 (holding that sex-
ual battery is not a crime of violence under § 2L1.2, and distinguishing a
previous holding that sexual battery is a crime of violence under § 16(b)
because that definition does not require the use of force).
   Similarly, our analysis is not limited by our discussion of a crime of
violence sentencing enhancement premised on a section 245(a)(2) convic-
tion in United States v. Diaz-Argueta, 564 F.3d 1047, 1050-51 (9th Cir.
2009). In Diaz-Argueta, we summarily rejected defendant’s argument that
his section 245(a)(2) conviction was not a crime of violence under § 2L1.2
because he received a sentence of less than one year; however, we did not
address whether the offense is categorically a crime of violence. See id.
13668              UNITED STATES v. GRAJEDA
inquiries conducted under the Guidelines definition, see, e.g.,
United States v. Pimentel-Flores, 339 F.3d 959, 963-64 (9th
Cir. 2003) (observing that “the guideline definition [for crime
of violence] is different from the statutory definition” and
stating that “[e]ach definition works well within its respective
regime”), no such hesitation is warranted when considering
only the element tests in § 16(a) and § 2L1.2. As we observed
in Gomez-Leon, “[t]he second phrase of the § 2L1.2(b) defini-
tion” and “the element test from 18 U.S.C. § 16(a),” are “ma-
terially the same” and “subject to the same construction.” 545
F.3d at 788; see also Narvaez-Gomez, 489 F.3d at 976 (noting
that “the relevant definitions under § 16(a) and U.S.S.G.
§ 2L1.2 are identical,” and concluding that Fernandez-Ruiz’s
holding that § 16(a) requires intentional force is equally appli-
cable to the element prong in § 2L1.2). The inclusion of
offenses involving force “against property” in the § 16(a) def-
inition is the sole difference between the two definitions.
Compare 18 U.S.C. § 16(a) with U.S.S.G. § 2L1.2, cmt.
n.1(b)(iii). Therefore, when force against property is not at
issue, cases holding that a crime is categorically a crime of
violence under the element prongs of the § 2L1.2(b) and
§ 16(a) definitions are mutually binding. See, e.g., Gomez-
Leon, 545 F.3d at 790 (treating a case decided under § 16(a)
as dispositive of whether the offense at issue was a crime of
violence under the element prong of § 2L1.2).

   [18] We are therefore bound by Heron-Salinas’ conclusion
that assault under California Penal Code section 245(a)
requires proof of sufficiently intentional conduct to satisfy the
mens rea requirement for a crime of violence set forth in Leo-
cal and Fernandez-Ruiz. Accordingly, we hold that assault
with a deadly weapon or by means of force likely to produce
great bodily injury under section 245(a)(1) is categorically a
crime of violence under the element prong of § 2L1.2. The
district court thus committed no error in applying a sixteen-
level enhancement to Grajeda’s base offense level pursuant to
§ 2L1.2(b)(1)(A)(ii).
                   UNITED STATES v. GRAJEDA                13669
                        V.    Apprendi

   Finally, Grajeda argues that the district court erred under
Apprendi v. New Jersey, 530 U.S. 466 (2000), in raising the
statutory maximum for a violation of 8 U.S.C. § 1326 on the
basis of a prior conviction that was not charged in the indict-
ment, and was neither proven to a jury beyond a reasonable
doubt nor admitted. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
this court’s subsequent cases following Almendarez-Torres.
See, e.g., United States v. Almazan-Becerra, 482 F.3d 1085,
1091 (9th Cir. 2007) (reaffirming that a prior conviction need
not be submitted to a jury and proved beyond a reasonable
doubt). While Grajeda urges us to read Apprendi as overruling
Almendarez-Torres, we have repeatedly declined to do so, and
made clear that although Apprendi “has perhaps called into
question the continuing viability of Almendarez-Torres, we
are bound to follow a controlling Supreme Court precedent
until it is explicitly overruled by that Court.” United States v.
Weiland, 420 F.3d 1062, 1080 n.16 (9th Cir. 2005) (emphasis
added) (citation omitted); see also Almazan-Becerra, 482
F.3d at 1091. We therefore reject Grajeda’s Apprendi argu-
ments.

                       VI.   Conclusion

   Because Grajeda raised no factual objections to the PSR,
the district court committed no error in relying on the PSR to
establish Grajeda’s prior conviction under California Penal
Code section 245(a)(1). The court also committed no error in
applying the sixteen-level enhancement in U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) on the basis that Grajeda’s section
245(a)(1) conviction was for a “crime of violence.” We there-
fore AFFIRM the sentence. We REMAND only for the dis-
trict court to correct the judgment of conviction by removing
the reference to 8 U.S.C. § 1326(b). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000); United
13670           UNITED STATES v. GRAJEDA
States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.
2000).

  AFFIRMED and REMANDED.
