United States v. Gomez-Hernandez
2012 U.S. App. LEXIS 10939
| 9th Cir. | 2012Background
- Gomez-Hernandez appeals a 41-month sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2).
- District court applied a sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on a prior Arizona conviction for attempted aggravated assault.
- The Arizona charges alleged aggravated assault and attempted aggravated assault with a carpet knife/razor; both offenses were charged as dangerous felonies under Arizona law.
- On October 31, 2001, Gomez-Hernandez pled guilty to aggravated assault and attempted aggravated assault; he was sentenced to concurrent terms and deported in 2008 after serving his sentences.
- In 2009 he was apprehended for illegal reentry; the district court imposed the sixteen-level enhancement notwithstanding his objections.
- We affirm the district court’s decision that the attempted aggravated assault conviction qualifies as a crime of violence under the Guidelines, justifying the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Gomez-Hernandez's Arizona attempted aggravated assault conviction qualify as a crime of violence for § 2L1.2 enhancement? | Gomez-Hernandez argues the conviction rests on a lesser mens rea and should not match the generic offense. | The court should look to the actual conviction and underlying facts; the two-step Taylor analysis supports classification as a crime of violence. | Yes; the conviction supports the sixteen-level enhancement. |
Key Cases Cited
- United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008) (attempt statute generally coextensive with generic attempt)
- James v. United States, 550 U.S. 192 (U.S. 2007) (context of determining violent felonies under Taylor)
- Esparza-Herrera, 557 F.3d 1022 (9th Cir. 2009) (categorical vs. modified-categorical approach for crimes of violence)
- Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009) (two Taylor analyses for attempt offenses)
- Rebilas v. Mukasey, 527 F.3d 783 (9th Cir. 2008) (two Taylor analyses for attempt offenses)
- Aguila-Montes de Oca, 655 F.3d 936 (9th Cir. 2011) (use of specific intent in attempt to satisfy generic offense)