                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 November 10, 2011
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 10-1380
 v.                                            (D.C. No. 10-CR-00094-PAB-1)
                                                          (D. Colo.)
 URIEL SANTOS-SANTOS,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HARTZ, Circuit Judges.



      Defendant-Appellant Uriel Santos-Santos appeals from his sentence for

illegal reentry after deportation subsequent to an aggravated felony conviction. 8

U.S.C. § 1326(a), (b)(2). He contends that the district court erred in applying a

16-level offense adjustment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), resulting

in a 57-month sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), and we affirm.




      *
        This order and judgment is not binding precedent, except under the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.
                                   Background

      In March 2004, in the Superior Court of Santa Clara County, California,

Mr. Santos-Santos, a Mexican citizen, was convicted of (1) inflicting corporal

injury on a spouse with a specified prior conviction within seven years and (2)

assault by means of force likely to produce great bodily injury. 3 R. 10. In 2007

he was deported to Mexico, but in January 2010 immigration officials discovered

him in Arapahoe County Jail, in Centennial, Colorado. 3 R. 10; 1 R. 12. That

April, Mr. Santos-Santos pleaded guilty to the instant federal offense. 1 R. 2

(Doc. 13), 7.

      The Presentence Report (“PSR”), on the basis of Mr. Santos-Santos’s

assault conviction, reflected an offense adjustment of 16 offense levels under

§2L1.2(b)(1)(A)(ii), for defendants who have unlawfully reentered after a

conviction for a “crime of violence.” This produced an advisory Guideline range

of 57-71 months’ imprisonment. Mr. Santos-Santos unsuccessfully objected to

the PSR on the grounds he argues here.



                                    Discussion

      Whether a conviction under California Penal Code § 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. Ruiz-Rodriguez, 494 F.3d 1273, 1275 (10th




                                       -2-
Cir. 2007). Section 245(a)(1), at the time of Mr. Santos-Santos’s conviction,

imposed criminal penalties 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 produce great bodily injury.” An “assault,” in turn,

under California Penal Code § 240, is defined as “an unlawful attempt, coupled

with a present ability, to commit a violent injury on the person of another.”

      Sentencing Guideline § 2L1.2 (“Unlawfully Entering or Remaining in the

United States”), in subsection (b)(1)(A)(ii), provides for an increase of 16 offense

levels “[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.” The

application note explains that a “crime of violence” consists in any of twelve

enumerated offenses or “any other offense under federal, state, or local law that

has as an element the use, attempted use, or threatened use of physical force

against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

      Mr. Santos-Santos argues that California Penal Code § 245(a)(1), as

construed by California courts, permits conviction of defendants whose mental

state is shown only to have been reckless, possibly even negligent. A “crime of

violence,” by contrast, requires proving that a defendant acted with a mental state

more culpable than negligence, Leocal v. Ashcroft, 543 U.S. 1 (2004), or

recklessness, United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008). The




                                        -3-
term “crime of violence” is defined in 18 U.S.C. § 16(a)—a definition that

informs this particular guideline, since the material language is the same in both

places—as “an offense that has as an element the use, attempted use, or

threatened use of physical force against the person . . . of another.”

      In Leocal, the Supreme Court held that a Florida law that punished injury-

causing DUIs did not constitute a “crime of violence.” A crime of violence

requires the “use…of physical force”; “use,” in turn, implies the “intentional” and

“active” application of force. 543 U.S. at 8-9. But the harm inflicted by a DUI

could possibly be the result of the driver’s negligence, not any particular intent on

his part to cause injury. We distinguish in the same way between shoving a

person (intentional) and stumbling into that person (accidental or negligent). Id.

at 9. In Zuniga-Soto, this court extended Leocal to reckless conduct. Zuniga-

Soto involved a Texas statute that punished “intentionally, knowingly, or

recklessly caus[ing] bodily injury” to public servants. 527 F.3d at 1114. The

court held that a “mens rea of recklessness does not satisfy [the] use of physical

force requirement under Sentencing Guideline § 2L1.2’s definition of ‘crime of

violence.’” Id. at 1124. It reasoned that, although many convictions under the

law are obtained against defendants who acted intentionally, the prosecution need

only prove a mental state of recklessness.




                                         -4-
      A conviction upon such a mental state is problematic, since the language of

§ 16(a) provides that crimes of violence must have this use of force “as an

element,” i.e., as a constituent part of the offense that the prosecution must

establish to convict. Courts, then, must only “look to the elements…of the

offense of conviction, rather than to the particular facts relating to petitioner’s

crime.” Leocal, 543 U.S. at 7; U.S. v. Zuniga-Soto, 527 F.3d at 1118. Because

§ 2L1.2 also contains the “as an element” limitation, the sentencing court’s

inquiry is likewise confined to examining the statutory definition of the prior

offense. The Florida and Texas statutes at issue in Leocal and Zuniga-Soto both

had the potential to punish conduct that did not necessarily (or categorically)

constitute a “crime of violence.” California Penal Code § 245(a)(1), for its part,

specifies on its face no particular state of mind requirement—an “element” of any

crime. The question of whether that law is a “crime of violence,” then, requires

us to determine what the California courts have declared the law’s mens rea to be.

      Mr. Santos-Santos maintains that, in California, he could be found “guilty

of an assault under § 245(a)(1) without intending to use physical force against

another,” Aplt. Br. 10; thus the “mens rea for committing the offense does not

satisfy the active-employment test of Leocal and this court’s precedent.” Aplt.

Br. 13. He points to People v. Williams, 29 P.3d 197 (Cal. 2001), the California

Supreme Court’s controlling opinion on the mental state required to convict for




                                         -5-
assault. Mr. Santos-Santos selects a phrase from that decision—namely, that a

defendant “must be aware of the facts that would lead a reasonable person to

realize that a battery would directly, naturally and probably result from his

conduct,” Williams, 29 P.3d at 203—and contends that such a standard “sounds

largely in recklessness.” 1 Aplt. Br. 14. But Williams explicitly held otherwise:

“As explained below…assault is a general intent crime,” id. at 200; “Assault is

still a general intent crime,” id. at 203; “mere recklessness or criminal negligence

is still not enough,” id.; “assault…requires an intentional act,” id. at 204.

      Degrees of culpability are notoriously elusive of firm definition. Not only

do they involve fine psychological and metaphysical distinctions, but courts over

time have given them varied and overlapping meanings. The mens rea required

for California Penal Code § 245, in particular, has been the “subject of a long,

tortured, and ongoing set of explanations in the California courts.” United States


      1
          The Williams court stated:
     a defendant is only guilty of assault if he intends to commit an act “which
     would be indictable [as a battery], 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 actually 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 battery. In other words, a
     defendant guilty of assault must be aware of the facts that would lead a
     reasonable 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.
     Williams, 29 P.3d at 202-03 (internal citations omitted).

                                         -6-
v. Grajeda, 581 F.3d 1186, 1189-92 (9th Cir. 2009). Mr. Santos-Santos attempts

to re-open the question. He characterizes Williams in a way that, to him, suggests

that a defendant can be convicted for acts that directly, naturally, and probably

lead to battery (though stopping short of it) without any finding of intent to cause

injury. The opinion, however, read as a whole, makes clear that what the statute

punishes are intentional acts that, if completed, would have resulted in

battery—i.e., acts that have battery as their natural but unfulfilled consequence.

As Williams explained, 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.” 29 P.3d at 202. Mr. Santos-Santos echoes the dissent’s

conclusion in Williams. (“I do not agree that the majority's formulation requires

a mental state more culpable than criminal negligence or recklessness,” id. at 207

(Kennard, J., dissenting)).

      What constitutes a “crime of violence” under Sentencing Guideline § 2L1.2

is a question of federal law. But what elements (among them a mens rea) must be

proved to sustain a conviction under California Penal Code § 245(a)(1) is a

question of state law; here, the California Supreme Court’s determination is

conclusive. See Johnson v. United States, 130 S.Ct. 1265, 1269 (2010) (“We

are...bound by the Florida Supreme Court’s interpretation of state law, including




                                         -7-
its determination of the elements of Fla. Stat. §784.03(2).”). Our inquiry is

limited only to considering whether California Penal Code § 245(a)(1), measured

by its elements, constitutes a “crime of violence” under Sentencing Guideline

§ 2L1.2. Mr. Santos-Santos cites intermediate appellate court decisions that he

claims are “contrary to the language of the guideline and to the reasoning of

Leocal,” Aplt. Br. 15, but even if we accepted his characterization of them, they

cannot overrule the holding of a superior court. Thus, we hold that California

Penal Code § 245(a)(1) is a “crime of violence” under Sentencing Guideline

§ 2L1.2. 2 We agree with the conclusion of the Ninth Circuit in Grajeda, 581 F.3d

at 1189-92. Because the district court did not err in enhancing Mr. Santos-

Santos’s sentence based on his assault conviction in California, the judgment is

      AFFIRMED.

                                   Entered for the Court

                                   Paul J. Kelly, Jr.
                                   Circuit Judge




      2
         The government argues that the sentencing enhancement can also be
upheld because § 245(a)(1) is a form of “aggravated assault,” an enumerated
“crime of violence” under Sentencing Guideline §2L1.2. See cmt n. 1(B)(iii). It
contends that the law “‘roughly corresponds’ to the definition of aggravated
assault in a majority of California’s criminal codes” and in the Model Penal Code.
Aplee. Br. 10. We note that the Fifth Circuit so held in United States v. Sanchez-
Ruedas, 452 F.3d 409, 414 (5th Cir. 2006), but we have no occasion to reach this
question today.

                                        -8-
