                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 04-30196
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                               CR-03-02127-FVS
OCTAVIO HERMOSO-GARCIA,
                                                  OPINION
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Eastern District of Washington
          Fred L. Van Sickle, Chief Judge, Presiding

                  Submitted February 8, 2005*
                     Seattle, Washington

                        Filed July 7, 2005

 Before: Diarmuid F. O’Scannlain, M. Margaret McKeown,
            and Carlos T. Bea, Circuit Judges.

                      Opinion by Judge Bea




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

                                7955
              UNITED STATES v. HERMOSO-GARCIA             7957


                         COUNSEL

Nicholas Marchi, Kennewick, Washington, for the defendant-
appellant.

James A. McDevitt and Robert A. Ellis, U.S. Department of
Justice, Yakima, Washington, for the plaintiff-appellee.


                         OPINION

BEA, Circuit Judge:

   Octavio Hermoso-Garcia (“Hermoso-Garcia”), a native and
citizen of Mexico, was convicted of being an alien who reen-
tered the United States after deportation without first obtain-
ing permission for reentry in violation of 8 U.S.C. § 1326 and
sentenced to sixty-three months’ imprisonment. Hermoso-
Garcia now appeals the district court’s: (1) denial of his
motion to dismiss the indictment; (2) imposition of a 16-level
increase under the United States Sentencing Guidelines
(“U.S.S.G.” or “Sentencing Guidelines”) § 2L1.2(b)(1)(A)(ii);
and (3) imposition of a 63-month sentence. We have jurisdic-
tion pursuant to 28 U.S.C. § 1291 and we affirm the convic-
7958              UNITED STATES v. HERMOSO-GARCIA
tion, but remand the sentence to the district court in light of
United States v. Booker, 125 S. Ct. 738 (2005), and United
States v. Ameline, No. 02-30326, 2005 WL 1291977, at *11
(9th Cir. June 1, 2005) (en banc).

                                     I.

   Hermoso-Garcia first entered the United States without
inspection in the early 1990s. In 1995, Hermoso-Garcia mar-
ried a U.S. citizen and on May 12, 1995, his wife filed Form
I-130 (“Immigrant Petition For Relative, Fiancee or Orphan”)
seeking a visa for him on the basis of his having a U.S. citizen
spouse. On September 8, 1995, Hermoso-Garcia received an
“Approval Notice” stating that his I-130 Form application had
been approved.

   However, before receiving his “Approval Notice” as to the
I-130, Hermoso-Garcia was convicted on August 29, 1995 of
being an accomplice to second-degree assault in Yakima
County, Washington in violation of WASH. REV. CODE
§ 9A.36.021(1)(a) and WASH. REV. CODE § 9A.08.020. He was
then sentenced to 14 months’ imprisonment.

   On August 14, 1997, based on his 1995 marriage to a U.S.
citizen, Hermoso-Garcia filed Form I-485, seeking an adjust-
ment of status from one who had entered the United States
without inspection to the status of an alien lawfully admitted
for permanent residence pursuant to Section 245 of the Immi-
gration and Nationality Act (INA), 8 U.S.C. § 1255(i).1 After
a hearing on his adjustment of status application before an
Immigration Judge, his application for adjustment of status
was denied on October 1, 1998 and he was ordered deported.2
   1
     Under Section 245 of the INA, “[a]n alien physically present in the
United States who entered the United States without inspection” and who
is the beneficiary of an I-130 Form “may apply to the Attorney General
for the adjustment of his or her status to that of an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1255(i) (emphasis added).
   2
     Under 8 U.S.C. § 1182(a)(2), an individual may be statutorily pre-
cluded from seeking any adjustment of status on account of his having
                  UNITED STATES v. HERMOSO-GARCIA                      7959
Hermoso-Garcia did not seek review of the Immigration
Judge’s decision. On October 15, 1998, Hermoso-Garcia was
deported from El Paso, Texas to Mexico.

   Sometime between October 15, 1998 and January 10, 2003,
Hermoso-Garcia again reentered the United States without
permission. On January 10, 2003, Hermoso-Garcia was
deported for a second time (this time from Otay Mesa, Cali-
fornia to Mexico).

   In February 2003, Hermoso-Garcia again reentered the
United States without permission and on July 9, 2003, author-
ities arrested him in Yakima County, Washington. On July 10,
2003, the Government filed a complaint stating that Hermoso-
Garcia was an alien found in the United States after deporta-
tion without permission in violation of 8 U.S.C. § 1326. On
July 15, 2003, the grand jury returned an indictment and the
Government charged Hermoso-Garcia with a violation of 8
U.S.C. § 1326.3

committed a crime. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (“an alien convicted
of . . . a crime involving moral turpitude (other than a purely political
offense) . . . is inadmissible.”). Such individual may nevertheless apply for
a waiver of the statutory preclusion pursuant to Section 212(h)(1)(B) of
the INA, 8 U.S.C. § 1182(h)(1)(B) (“The Attorney General may, in his
discretion, waive the application of [(a)(2)(A)(i)(I)] in the case of an
immigrant who is the spouse, parent, son or daughter of a citizen of the
United States . . . if it is established to the satisfaction of the Attorney
General that the alien’s denial of admission would result in extreme hard-
ship to the United States citizen or lawfully resident spouse, parent, son,
or daughter of such alien.”). Here, the Immigration Judge determined that
the statutory preclusion applied and treated Hermoso-Garcia’s application
for an adjustment of status pursuant to Section 245 as a Section 212(h)
waiver and denied such application. Since Hermoso-Garcia did not appeal
the immigration judge’s decision, we do not decide the question whether
second-degree assault under Washington State law is a crime of “moral
turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
   3
     8 U.S.C. § 1326 provides for criminal penalties on the part of:
7960               UNITED STATES v. HERMOSO-GARCIA
   The district court denied his motion to dismiss the indict-
ment and Hermoso-Garcia was tried before a jury and con-
victed.

   On March 11, 2004, Hermoso-Garcia was sentenced to 63
months’ imprisonment and three years’ supervised release. In
accordance with the Presentence Investigation Report
(“PSR”), the district court determined that there was a base
offense level of 8 under the Sentencing Guidelines and
applied a 16-level increase under U.S.S.G. § 2L1.2(b)(1)
(A)(ii) for a prior conviction that was a “crime of violence.”
The district court then reduced that offense level by 2 levels
for “acceptance of responsibility” pursuant to U.S.S.G.
§ 3E1.1(a). Hermoso-Garcia’s final offense level was 22.

                                    II.

   [1] This court reviews de novo the denial of a motion to
dismiss an indictment based on an interpretation of a federal
statute. See United States v. Gorman, 314 F.3d 1105, 1110
(9th Cir. 2002). We hold that Hermoso-Garcia’s approved I-
130 Form does not constitute “consent” to reenter the United

    (a)   any alien who —
    (1)   has been denied admission, excluded, deported, or removed
          or has departed the United States while an order of exclu-
          sion, deportation, or removal is outstanding, and thereafter
    (2)   enters, attempts to enter, or is at any time found in, the
          United States, unless (A) prior to his reembarkation at a
          place outside the United States or his application for admis-
          sion from foreign contiguous territory, the Attorney General
          has expressly consented to such alien’s reapplying for
          admission; or (B) with respect to an alien previously denied
          admission and removed, unless such alien shall establish
          that he was not required to obtain such advance consent
          under this chapter or any prior Act . . . .
8 U.S.C. § 1326.
                  UNITED STATES v. HERMOSO-GARCIA                     7961
States under 8 U.S.C. § 1326(a)(2). Rather, before an individ-
ual is allowed to enter this country legally, once his I-130
Form has been approved, he is still obligated to obtain an
adjustment of status pursuant to 8 U.S.C. § 1255. See 8 U.S.C.
§ 1255(i); see also Agyeman v. INS, 296 F.3d 871, 879 (9th
Cir. 2002). Here, after a hearing before an Immigration Judge,
the Immigration Judge denied Hermoso-Garcia’s application
for an adjustment of status. As noted above, Hermoso-Garcia
did not appeal such denial. Accordingly, he did not have con-
sent to enter or be in the United States.

                                   III.

   With respect to the correctness of the sentence imposed on
Hermoso-Garcia, this court reviews a district court’s determi-
nation that a prior conviction constituted a “crime of vio-
lence” under the Sentencing Guidelines de novo. See United
States v. Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir.
2003). U.S.S.G. § 2L1.2(b)(1)(A)(ii) defines “crime of vio-
lence” as including . . . any offense under . . . state . . . law
that has an element the use . . . of physical force against the
person of another.” Under the “categorical approach” delin-
eated by the U.S. Supreme Court in Taylor v. United States,
495 U.S. 575 (1990), courts look “only to the fact of convic-
tion and the statutory definition of the prior offense.” Id. at
602.

   [2] Here, Hermoso-Garcia was convicted of being an
accomplice to second-degree assault in violation of WASH.
REV. CODE § 9A.36.021(1)(a)4 and WASH. REV. CODE
§ 9A.08.020.5 Subsection 1(a) of Washington’s second-degree
   4
     The Washington State second-degree assault statute, WASH. REV. CODE
§ 9A.36.021(1)(a), provides, in pertinent part, that “(1) A person is guilty
of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree: (a) intentionally assaults another
and thereby recklessly inflicts substantial bodily harm.”
   5
     The Washington State accomplice liability statute, WASH. REV. CODE
§ 9A.08.020(2)(c), provides, in pertinent part that “A person is guilty of
a crime if it is committed by the conduct of another person . . . when he
is an accomplice of such other person in the commission of the crime.”
7962           UNITED STATES v. HERMOSO-GARCIA
assault statute requires a defendant to have “recklessly inflict-
[ed] substantial bodily harm” upon another person. WASH.
REV. CODE § 9A.36.021(1)(a). This language is indistinguish-
able from the statutes in United States v. Grajeda-Ramirez,
348 F.3d 1123, 1125 (9th Cir. 2003) (holding that reckless
vehicular assault under Colorado law is a categorical crime of
violence under the Sentencing Guidelines because the perpe-
trator “must be the proximate cause of serious bodily injury
to another and must act with at least a reckless mental state”
(internal quotation marks omitted)), and United States v.
Ceron-Sanchez, 222 F.3d 1169, 1173 (9th Cir. 2000) (holding
that attempted aggravated assault under Arizona law—which
can be committed by “recklessly causing any physical injury
to another person”—is a categorical crime of violence under
18 U.S.C. § 16(a)), because all three implicate the reckless
infliction of bodily harm. Therefore, we hold that Washing-
ton’s second-degree assault statute, WASH. REV. CODE
§ 9A.36.021(1)(a), is a categorical crime of violence.

   [3] Although we agree that the sixteen-level enhancement
was proper under the then-mandatory sentencing guidelines,
we cannot automatically affirm Hermoso-Garcia’s sentence
because the federal sentencing Guidelines are no longer man-
datory. See United States v. Booker, ___ U.S. ___, 125 S. Ct.
738, 764-67 (2005). Pursuant to United States v. Ameline,
2005 WL 1291977, at *11, we remand Hermoso-Garcia’s sen-
tence to the district court for the district court to determine
whether it would have sentenced Hermoso-Garcia differently
under an advisory Guidelines system. If so, the district court
shall vacate Hermoso-Garcia’s sentence and re-sentence him
under the post-Booker advisory Guidelines. If not, Hermoso-
Garcia’s sentence shall remain undisturbed.

 CONVICTION             AFFIRMED          and     SENTENCE
REMANDED.
