                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     April 1, 2010
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                    No. 09-1343
                                             (D.C. No. 1:08-CR-00398-REB-1)
 JESUS GASTELUM-LAUREAN,                                (D. Colo.)

              Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, and MURPHY and O’BRIEN, Circuit Judges. **


      Jesus Gastelum-Laurean pleaded guilty to one count of unlawful reentry

into the United States after having been convicted of an aggravated felony, a



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, submitted without oral argument.
violation of 8 U.S.C. § 1326(a). In calculating Mr. Gastelum-Laurean’s criminal

history, the district court followed the recommendation of the presentence report

and characterized a 2005 aggravated assault conviction under Ariz. Rev. Stat. §

13-1204(A)(8) (2004) as a “crime of violence” pursuant to § 2L1.2(b)(1)(A)(ii) of

the United States Sentencing Guidelines. That characterization resulted in a

sixteen-point upward adjustment in Mr. Gastelum-Laurean’s offense level. The

district court then sentenced him to seventy months’ imprisonment.

      In this appeal, Mr. Gastelum-Laurean argues that the district court erred in

characterizing his Arizona aggravated assault conviction as a crime of violence

under USSG § 2L1.2(b)(1)(A)(ii). The government agrees. In light of the

government’s concession and our review of the applicable law, we vacate Mr.

Gastelum-Laurean’s sentence and remand for resentencing consistent with this

order and judgment.

                               I. BACKGROUND

      We begin by describing Mr. Gastelum-Laurean’s Arizona aggravated

assault conviction. Then we turn to this federal prosecution.

A. The Arizona aggravated assault conviction

      Mr. Gastelum-Laurean is a native and citizen of Mexico. In 2005, while

unlawfully in the United States, he pleaded guilty to aggravated assault under




                                        -2-
Ariz. Rev. Stat. § 13-1204(A)(8) (2004). 1 At the time of his state court plea, § l3-

1204(A)(8) provided that

      [a] person commits aggravated assault if such person commits assault
      as defined in § 13-1203 . . . while the victim is bound or otherwise
      physically restrained or while the victim’s capacity to resist is
      substantially impaired.

In turn, § 13-1203 (the referenced statute generally defining assault) stated:

      A person commits assault by:

      1.     Intentionally, knowingly, or recklessly causing any physical
             injury to another person;
      2.     Intentionally placing another person in reasonable apprehension
             of imminent physical injury; or
      3.     Knowingly touching another person with the intent to injure,
             insult, or provoke such person.

Id. § 13-1203 (2004).

      At the plea hearing on the aggravated assault charge, Mr. Gastelum-

Laurean admitted that he had “an altercation with [the victim] and . . . caused her

some injury,” including “some facial injuries.” Aplt’s Br. at 4; Aple’s Br. at 3

(quoting State Ct. Rec. doc. 31, at 9 (Tr. of June 13, 2005 Change of Plea Hr’g, at

9)). However, the parties agree that the state court records do not provide any

other information regarding the categories of assault and aggravated assault to




      1
        That offense is now recodified at Ariz. Rev. Stat. § 13-1204(A)(4)
(2009). We cite to the 2004 version of the statute as the one in effect at the time
of Mr. Gastelum-Laurean’s plea. See Aplt’s Br. at 2 n.2 (citing to the 2004
version of the statute).

                                        -3-
which he admitted. Following his guilty plea, the Arizona court sentenced Mr.

Gastelum-Laurean to one year’s imprisonment.

      In March 2006, Mr. Gastelum-Laurean was deported to Mexico. He

returned to the United States and was again deported in September 2007. In

August 2008, law enforcement officers apprehended him in Colorado, and this

federal prosecution followed.

B. The federal prosecution

      After a federal grand jury indicted him on one count of unlawful reentry

following deportation after conviction of an aggravated felony, a violation of 8

U.S.C. § 1326(a), Mr. Gastelum-Laurean pleaded guilty. Following the

recommendation of the presentence report, the district court ruled that Mr.

Gastelum-Laurean’s Arizona aggravated assault conviction constituted a “crime

of violence” under USSG § 2L1.2(b)(1)(A)(ii). The court found that

      the relevant application note to Guideline Section 2L1.2 defines a crime
      of violence as any one of several enumerated offenses including
      aggravated assault.
             [Mr. Gastelum-Laurean] was convicted in the Arizona State
      court of aggravated assault as defined by Arizona State law. . . . [W]hen
      an offense is specifically identified by the application notes as a crime
      of violence, I conclude that the offense is a per se crime of violence
      under the guidelines without then determining under Taylor v. United
      States, 495 U.S. 575 [(1990)], whether in this case the defendant’s
      conviction in Arizona for aggravated assault corresponds to the
      guidelines’ generic federal definition of aggravated assault.

Rec. vol. II, at 23 (Tr. of July 23, 2009 Sent. Hr’g). In support of this per se

reliance on the state court’s categorization of the prior offense, the district court


                                         -4-
cited our decision in United States v. Hernandez-Castillo, 449 F.3d 1127 (10th

Cir. 2006), which we will address below.

      The district court further found that Mr. Gastelum-Laurean’s total offense

level was twenty-one and that his criminal history category was V, yielding an

advisory sentencing range of seventy to eighty-seven months. The court

sentenced him to 70 months’ imprisonment.

                                 II. DISCUSSION

      Mr. Gastelum-Laurean now argues that the district court erred in

characterizing his 2005 aggravated assault conviction as a “crime of violence”

under USSG § 2L1.2(b)(1)(A)(ii) and in thereby imposing a sixteen-level increase

in his offense level. He maintains that a state’s classification of an offense is not

dispositive as to whether the offense constitutes “a crime of violence” under the

Guidelines. Instead, Mr. Gaste1um-Laurean urges us to follow the categorical

approach of Taylor v. United States, 495 U.S. 575 (1990).

      In response, the government agrees with Mr. Gastelum-Laurean. It

concedes that (1) “the district court erred in ruling that [Mr.] Gastelum-Laurean’s

prior Arizona conviction was for an ‘aggravated assault’ within the meaning of

the Section 2L1.2 definition of ‘crime of violence’ merely because the State had

denominated the offense an ‘aggravated assault[;]’” (2) “[Mr. Gastelum-Laurean]

is also correct that consultation with the appropriate sources” reveals the elements

of aggravated assault under the Arizona statute do not correspond to the generic


                                         -5-
crime of aggravated assault; (3) the district court’s judgment may not be affirmed

on alternative grounds; and (4) this court should vacate Mr. Gastelum-Laurean’s

seventy-month sentence and remand for resentencing. Aple’s Br. at 6-7.

      Mr. Gastelum-Laurean’s challenge to the district court’s characterization of

his Arizona aggravated assault conviction as a crime of violence under USSG §

2L1.2(b)(1)(A)(ii) is a legal question that we review de novo. See United States

v. Garcia-Caraveo, 586 F.3d 1230, 1232 (10th Cir. 2009). Upon review of the

applicable law, we agree with the parties’ contentions.

A. Under USSG § 2L1.2(b)(1)(A)(ii), a state court conviction for aggravated
assault constitutes a crime of violence only if the elements of the state court
conviction correspond to the generic elements of that crime.

      USSG § 2L1.2(b)(1) sets forth the offense levels for convictions for

unlawfully entering or remaining in the United States. It provides for a base

offense level of eight and a sixteen-level increase “[i]f the defendant previously

was deported, or unlawfully remained in the United States, after . . . a conviction

for a felony that is . . . a crime of violence[.]” USSG § 2L1.2(b)(1)(A)(ii). The

applicable commentary defines a “crime of violence” as:

             any of the following offenses under federal, state, or local
             law: Murder, manslaughter, kidnapping, aggravated
             assault, forcible sex offenses (including where consent to
             the conduct is not given or is not legally valid, such as
             where consent to the conduct is involuntary, incompetent,
             or coerced), 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


                                         -6-
             use, or threatened use of physical force against the person
             of another.

USSG § 2L1.2 cmt. n.1(B)(iii) (emphasis added).

      “To determine whether a particular state’s criminal statute falls within the

ambit of the term ‘crime of violence’ under the Guidelines, we look not to how a

state has labeled its statute, but rather consider whether the statute corresponds

with the ‘uniform generic definition’ of the crime, using the analytical framework

set out in Taylor v. United States, 495 U.S. 575 (1990).” Garcia-Caraveo, 586

F.3d at 1233 (emphasis added). We examine whether the offense defined by the

state statute “‘roughly correspond[s] to the definitions of [the crime] in a majority

of the States’ criminal codes.’” Id. (quoting Taylor, 495 U.S. at 589) (alterations

in original). We also consult “prominent secondary sources, such as criminal law

treatises and the Model Penal Code.” Id.

      Here, we agree with Mr. Gastelum-Laurean and the government that

“consultation with the appropriate sources reveals that the generally accepted

crime of ‘aggravated assault’ is an offense that has an element either the causing

of serious bodily injury or the use of a dangerous weapon.” Aple’s Br. at 10. See

also Aplt’s Br. at 18 (stating that “[t]hese authorities uniformly support the

following ‘generic’ definition of aggravated assault: an assault that is committed

intentionally or knowingly (or at least with ‘extreme indifference to the value of

human life’) and that either causes serious bodily injury or involves use of a



                                         -7-
dangerous weapon”); see generally United States v. McFalls, 592 F.3d 707, 717

(6th Cir. 2010) (observing that the Model Penal Code definition of aggravated

assault “approximates the definition of ‘aggravated assault’ used by several states

that have consolidated the crimes of assault and battery”); United States v.

Fierro-Reyna, 466 F.3d 324, 329 (5th Cir. 2006) (considering the Model Penal

Code; 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(d) (2d ed. 2003);

and various state statutes and concluding that “the generic, contemporary meaning

of aggravated assault involves aggravating factors such as use of a deadly weapon

and causation of serious bodily injury”); Model Penal Code § 211.1(2) (stating

that “[a] person is guilty of aggravated assault” if he or she: “(a) attempts to

cause serious bodily injury to another, or causes such injury purposely, knowingly

or recklessly under circumstances manifesting extreme indifference to the value

of human life; or (b) attempts to cause or purposely or knowingly causes bodily

injury to another with a deadly weapon”); 2 Wayne R. LaFave, Substantive

Criminal Law § 16.3(d), at 571 (2d ed. 2003) (discussing aggravated assault and

stating that “in all jurisdictions statutes punish more severely than simple assault

such aggravated assaults as ‘assault with intent to murder’ (or to kill or rob or

rape) and ‘assault with a dangerous [or deadly] weapon’”).

      As we have noted, the district court did not follow this generic-definition

approach. Instead, the court concluded that because Mr. Gastelum-Laurean had

been convicted of an offense labeled “aggravated assault” by an Arizona statute,


                                         -8-
that offense was necessarily a crime of violence under USSG §

2L1.2(b)(1)(A)(ii). As support for this deference to the state’s categorization, the

district court invoked our decision in United States v. Hernandez-Castillo, 449

F.3d 1127 (10th Cir. 2006).

      We agree with the parties that the district court erred in relying upon

Hernandez-Castillo. In that case, this court rejected the defendant’s argument

that a prior statutory rape conviction was not a crime of violence because his

relationship with the victim was consensual. We reasoned that statutory rape was

one of the specific offenses listed in USSG § 2L1.2’s definition of “crime of

violence” and that, because statutory rape was so listed, a conviction for that

offense was a “crime of violence” even if it did not “[have] as an element the use,

attempted use, or threatened use of physical force against the person of another.”

USSG § 2L1.2 cmt. n.1(B)(iii). Mr. Hernandez-Castillo did not contend, as Mr.

Gastelum-Laurean does here, that the elements of his state court conviction did

not correspond to the generic definition of the offense in question.

      Accordingly, we must now consider whether the elements of aggravated

assault under Ariz. Rev. Stat § 13-1204(A)(8) (2004) correspond to the generic

elements of that offense.




                                         -9-
B. The elements of aggravated assault under Ariz Rev. Stat § 13-1204(A)(8)
(2004) do not correspond to the generic elements of aggravated assault.

      We agree with the parties that the elements under the Arizona statute do not

correspond to the generic elements of aggravated assault, which include either

causing serious bodily injury or the use of a dangerous weapon. See Model Penal

Code § 211.1(2). In particular, under Ariz. Rev. Stat. § 13-1204(A)(8) (2004), a

person is guilty of aggravated assault when he or she “commits the assault [as

defined by Section 13-1203] . . . while the victim is bound or otherwise

physically restrained or while the victim’s capacity to resist is substantially

impaired.” Ariz. Rev. Stat. § 13-1204(A)(8) (2004). An assault under section 13-

1203 is committed in one of three ways: “1. Intentionally, knowingly or

recklessly causing any physical injury to another person; or 2. Intentionally

placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult or provoke

such person.” Id. § 13-1203 (2004).

      As the government concedes,

             [n]one of the species of assaultive conduct listed as
             “assault” under Section 13-1203 has as an element either
             the causing of serious bodily injury or the use of a
             dangerous weapon.          Moreover, the circumstances
             identified in Section 13-1204(A)(4) that elevate the
             “assault” to an “aggravated assault”– that the victim was
             bound or otherwise physically restrained or that the
             victim’s capacity to resist was substantially impaired – do
             not add an element of either serious bodily injury or use of
             a dangerous weapon.

                                        - 10 -
Aple’s Br. at 11. Accordingly, the offense of which Mr. Gastelum-Laurean was

convicted was not an “aggravated assault” under the generic definition of that

crime.

C.    The government does not contend that Mr. Gastelum-Laurean’s
aggravated assault conviction is a crime of violence under the alternative
“element of force” standard in USSG § 2L1.2(b)(1).

         Under the commentary to section 2L1.2, an offense that is not specifically

listed may nevertheless constitute a crime of violence if it “has as an element the

use, attempted use, or threatened use of physical force against the person of

another.” USSG § 2L1.2 cmt. n.1(B)(iii). However, the government does not

here contend that Mr. Gastelum-Laurean’s Arizona aggravated assault conviction

satisfies that definition. See Aple’s Br. at 13 (stating that “the fact that [Mr.]

Gastelum-Laurean was convicted of assault under the special circumstances of

Section 13-1204(A)(4) does not permit the conclusion that he was convicted of an

offense that has as an element the use, attempted use, or threatened use of

physical force against another” and that “[i]t also cannot be concluded that the

Section 13-1203 ‘assault’ component of [Mr.] Gastelum-Laurean’s conviction

involved an element of the use, attempted use, or threatened use of physical force

against another”). Accordingly, Mr. Gastelum-Laurean’s aggravated assault

conviction cannot now be characterized as a crime of violence under the

alternative “element of force” standard in USSG § 2L1.2(b)(1).




                                         - 11 -
                           III. CONCLUSION

      The district court erred in characterizing Mr. Gastelum-Laurean’s 2005

Arizona aggravated assault conviction as a crime of violence under USSG §

2L1.2(b)(1). We therefore VACATE Mr. Gastelum-Laurean’s sentence and

remand for resentencing consistent with this order and judgment.



                               Entered for the Court,



                               Robert H. Henry
                               Chief Judge




                                      - 12 -
