                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-50066
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:12-cr-04235-
                                            LAB-1
CARLOS DOMINGUEZ-MAROYOQUI,
            Defendant-Appellant.           OPINION


      Appeal from the United States District Court
        for the Southern District of California
       Larry A. Burns, District Judge, Presiding

                Argued and Submitted
       February 10, 2014—Pasadena, California

                  Filed April 7, 2014

   Before: Jerome Farris, N. Randy Smith, and Paul J.
                Watford, Circuit Judges.

              Opinion by Judge Watford
2       UNITED STATES V. DOMINGUEZ-MAROYOQUI

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the district court imposed an
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) on
the ground that the defendant’s 1996 felony conviction under
18 U.S.C. § 111(a) for assaulting a federal officer qualifies as
a crime of violence.

    The panel held that a § 111(a) felony is not categorically
a crime of violence because it does not match any of
§ 2L1.2’s specifically enumerated offenses and does not
require proof, as a necessary element, that the defendant used,
attempted to use, or threatened to use physical force. The
panel held that even if § 111(a) is viewed as a divisible statute
setting out elements of the offense in the alternative, the
modified categorical approach has no role to play because
none of the alternatives requires proof of the type of violent
physical force mandated under § 2L1.2’s definition of a crime
of violence.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V. DOMINGUEZ-MAROYOQUI                       3

                               COUNSEL

Gary P. Burcham (argued), Burcham & Zugman, San Diego,
California, for Defendant-Appellant.

Jerry A. Behnke (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, United States Attorney’s
Office, San Diego, California, for Plaintiff-Appellee.


                                OPINION

WATFORD, Circuit Judge:

    Carlos Dominguez-Maroyoqui pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326. The United States
Sentencing Guidelines increase the defendant’s offense level
for this crime when, among other things, the defendant has
been convicted of an offense that’s both a felony and a “crime
of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Section 2L1.2
of the Guidelines defines the term “crime of violence” as any
of a dozen specified offenses or, alternatively, “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.” Id. cmt. n.1(B)(iii).1

 1
     The definition provides in full:

          “Crime of violence” means 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),
4            UNITED STATES V. DOMINGUEZ-MAROYOQUI

    We must decide whether Dominguez-Maroyoqui’s 1996
conviction for assaulting a federal officer in violation of
18 U.S.C. § 111(a) qualifies as a crime of violence. The
district court held that it does, relying on the modified
categorical approach as applied in this circuit before
Descamps v. United States, 133 S. Ct. 2276 (2013), and
imposed a 12-level sentencing enhancement as a result.

     Section 111(a) authorizes the conviction of anyone who
“forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this
title while engaged in or on account of the performance of
official duties.” 18 U.S.C. § 111(a)(1). The statute creates
three separate offenses. United States v. Chapman, 528 F.3d
1215, 1218 (9th Cir. 2008). At the time of Dominguez-
Maroyoqui’s conviction, they consisted of: (1) a
misdemeanor if the defendant’s acts constituted “only simple
assault”; (2) a felony with a 3-year statutory maximum under
§ 111(a) “in all other cases”; and (3) a felony with a 10-year
statutory maximum under § 111(b) if the defendant used a
deadly or dangerous weapon or inflicted bodily injury.
18 U.S.C. § 111 (1994).2 Dominguez-Maroyoqui pleaded


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

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2012).
    2
        The version of § 111 in effect in 1996 provided as follows:

                  (a) In General.—Whoever—
       UNITED STATES V. DOMINGUEZ-MAROYOQUI                        5

guilty to the felony offense carrying a 3-year statutory
maximum, which for ease of reference we’ll refer to as the
§ 111(a) felony.

    Although we’ve previously held that the felony under
§ 111(b) is a crime of violence, United States v. Juvenile
Female, 566 F.3d 943, 947–48 (9th Cir. 2009), it remains an
open question whether the § 111(a) felony also qualifies as a
crime of violence. To resolve that question, we employ the
categorical approach, meaning we look to the elements of the
offense rather than the particular facts underlying the
defendant’s own conviction. Descamps, 133 S. Ct. at 2283;
United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir.
2009). We ask whether the elements of the § 111(a) felony
criminalize “a broader swath of conduct” than the conduct


            (1) forcibly assaults, resists, opposes, impedes,
       intimidates, or interferes with any person designated in
       section 1114 of this title while engaged in or on account
       of the performance of official duties; or

           (2) forcibly assaults or intimidates any person who
       formerly served as a person designated in section 1114
       on account of the performance of official duties during
       such person’s term of service,

       shall, where the acts in violation of this section
       constitute only simple assault, be fined under this title
       or imprisoned not more than one year, or both, and in
       all other cases, be fined under this title or imprisoned
       not more than three years, or both.

            (b) Enhanced Penalty.—Whoever, in the
       commission of any acts described in subsection (a),
       uses a deadly or dangerous weapon or inflicts bodily
       injury, shall be fined under this title or imprisoned not
       more than ten years, or both.
6      UNITED STATES V. DOMINGUEZ-MAROYOQUI

covered by § 2L1.2’s definition of a crime of violence.
Descamps, 133 S. Ct. at 2281. If that’s the case, Dominguez-
Maroyoqui’s § 111(a) felony can’t qualify as a crime of
violence, even if the facts underlying his own conviction
might satisfy § 2L1.2’s definition. See id. at 2283. Under the
categorical approach, the crime-of-violence determination
“function[s] as an on-off switch”: An offense qualifies as a
crime of violence “in all cases or in none.” Id. at 2287.

    The government doesn’t contend that the § 111(a) felony
matches any of the specifically enumerated offenses in
§ 2L1.2’s definition of a crime of violence. Those offenses
include “aggravated assault”—the closest analogue—but the
generic version of that offense requires proof of an
aggravating factor that the § 111(a) felony does not. See
United States v. Gomez-Hernandez, 680 F.3d 1171, 1178 (9th
Cir. 2012). The government argues that the § 111(a) felony
nonetheless qualifies as a crime of violence because it’s an
offense 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) (emphasis
added).

    The Supreme Court has given the phrase “physical force”
a specialized meaning in the context of violent felonies, one
which compels us to reject the government’s argument. In
Johnson v. United States, 559 U.S. 133 (2010), the Court
construed the meaning of “violent felony” as used in the
Armed Career Criminal Act, 18 U.S.C. § 924(e). That statute
defines violent felony, in part, just as § 2L1.2 defines a crime
of violence—an offense that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i). To meet that
definition, the Court held, the physical force involved must be
       UNITED STATES V. DOMINGUEZ-MAROYOQUI                 7

“violent force—that is, force capable of causing physical pain
or injury to another person.” Johnson, 559 U.S. at 140.
“Physical force” carries the same meaning under § 2L1.2.
United States v. Flores-Cordero, 723 F.3d 1085, 1087 (9th
Cir. 2013).

    The § 111(a) felony does not require proof, as a necessary
element, that the defendant used, attempted to use, or
threatened to use physical force as defined in Johnson. The
statute requires proof of “at least some form of assault,”
Chapman, 528 F.3d at 1221, but we’ve held that an assault
under § 111 “does not require that any particular level of
force be used.” United States v. Sommerstedt, 752 F.2d 1494,
1496 (9th Cir. 1985). In fact, “a defendant may be convicted
of violating section 111 if he or she uses any force
whatsoever against a federal officer designated in 18 U.S.C.
§ 1114.” Id. (emphasis added).

    To obtain a § 111(a) felony conviction, then, the
government need not prove, and an adjudicator need not find,
that the offense involved violent force capable of causing
physical pain or injury. Decisions sustaining § 111 felony
convictions confirm that fact; many involve the use of force
below that threshold. See, e.g., United States v. Fernandez,
837 F.2d 1031, 1033 (11th Cir. 1988) (chasing prosecutor
down the street and bumping into him); Sommerstedt,
752 F.2d at 1495 (walking up to prosecutor and jolting her
arm and shoulder); United States v. Hightower, 512 F.2d 60,
61 (5th Cir. 1975) (grabbing wildlife agent’s jacket); United
States v. Frizzi, 491 F.2d 1231, 1231–32 (1st Cir. 1974)
(spitting in mail carrier’s face).

    We recognize that these cases all involved a pre-1996
version of § 111 that described just two offenses, both
8      UNITED STATES V. DOMINGUEZ-MAROYOQUI

felonies. The statute did not then, as it did at the time of
Dominguez-Maroyoqui’s conviction, carve out a separate
misdemeanor offense for cases involving only simple assault.
See Fernandez, 837 F.2d at 1035. We don’t believe that fact
has any relevance here, since under the 1996 version of the
statute the dividing line between the § 111(a) felony and the
simple assault misdemeanor was the presence or absence of
physical contact with the victim. See United States v. Rivera-
Alonzo, 584 F.3d 829, 834–35 (9th Cir. 2009). The offenses
in each of the cases cited above involved physical contact
with the victim, so they would still have been felonies even
under the version of the statute in effect when Dominguez-
Maroyoqui was convicted. See id.

    Because the § 111(a) felony criminalizes a broader swath
of conduct than the conduct covered by § 2L1.2’s definition,
Dominguez-Maroyoqui’s 1996 conviction for assaulting a
federal officer is not, categorically, a crime of violence. See
Descamps, 133 S. Ct. at 2281; Ortega-Mendez v. Gonzales,
450 F.3d 1010, 1020 (9th Cir. 2006). The government
concedes that, after Descamps, if the § 111(a) felony is not
categorically a crime of violence, then the modified
categorical approach has no application in this case. Even if
§ 111(a) is viewed as a divisible statute, setting out elements
of the offense in the alternative (“assaults,” “resists,”
“opposes,” etc.), none of those alternatives requires proof of
the type of violent physical force mandated under § 2L1.2’s
definition of a crime of violence. Without at least one such
match, the modified categorical approach has no role to play
here. See Descamps, 133 S. Ct. at 2285.

   It follows that Dominguez-Maroyoqui should not have
been assessed a “crime of violence” enhancement under
      UNITED STATES V. DOMINGUEZ-MAROYOQUI         9

U.S.S.G. § 2L1.2(b)(1)(A). We vacate his sentence and
remand for re-sentencing without the enhancement.

   VACATED and REMANDED.
