United States v. Ruben Sahagun-Gallegos, 2015 U.S. App. LEXIS 5831

Background

Ruben Sahagun-Gallegos, a removed noncitizen, pleaded guilty in Arizona (2008) to aggravated assault with a deadly weapon under A.R.S. § 13-1204(A)(2); police reported he pointed a sawed-off shotgun at a drive‑thru cashier.
He was later convicted in federal court for illegal reentry (8 U.S.C. § 1326) and a PSR applied an 8 base level plus a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because of the aggravated-assault conviction as a prior “crime of violence.”
The Government submitted the plea agreement, plea transcript (defense counsel supplied a factual basis), and grand jury transcript to support the enhancement; Sahagun‑Gallegos did not object in district court.
The district court accepted the PSR, granted a 2‑level acceptance reduction, and sentenced him to 48 months (below guidelines); the Government had indicated it would move for a third‑level reduction only if he waived appeals.
On appeal, the Ninth Circuit vacated and remanded for two independent reasons: (1) the Government improperly conditioned a third‑level acceptance motion on appeal waiver (retroactive guideline amendment bars that); and (2) the 16‑level enhancement was improperly applied because the submitted documents did not show the defendant admitted the elements of the specific statutory subsection that matches the generic “crime of violence.”

Issues

Issue	Sahagun‑Gallegos' Argument	Government's Argument	Held
May a sentencing court rely on defense counsel’s factual‑basis statement and use process‑of‑elimination to identify which divisible statutory alternative a defendant pleaded to?	Such factual statements cannot be used to establish the admitted elements absent the defendant’s own assent; elements, not facts, must control.	The defense counsel’s factual basis eliminates other statutory alternatives, so the court can infer the matching subsection.	No; courts may not rely on counsel’s factual statement or process‑of‑elimination to substitute a facts‑based inquiry for an elements‑based one.
Did Sahagun‑Gallegos’s aggravated‑assault conviction qualify as a prior "crime of violence" to trigger the 16‑level enhancement?	The documents did not establish he admitted the mens rea element of A.R.S. § 13‑1203(A)(2), so the enhancement cannot be applied.	The factual basis shows pointing the gun, which could only correspond to subsection (2), so the enhancement is proper.	The government did not meet the Shepard/Descamps standard; the documents do not show the defendant necessarily admitted the matching statutory elements, so the enhancement was improperly applied.
Did the Government improperly withhold a motion for a third‑level acceptance reduction unless defendant waived appeal?	Defendant argued the withholding was improper under the amended Sentencing Guidelines comment prohibiting conditioning the motion on appeal waiver.	Government conditioned the third point on appeal waiver (as reflected in PSR).	Vacatur and remand required; the guideline comment amendment applies retroactively and the sentence must be reassessed for the additional acceptance point.
Standard for using modified categorical approach on divisible statutes?	The court must focus on statutory elements and permitted Shepard documents showing the defendant necessarily admitted those elements.	Government favored using underlying factual narrative where it rules out other alternatives.	Follow Descamps/Shepard: use elements‑based inquiry; only Shepard‑compliant documents showing defendant’s assent to elements satisfy the modified categorical approach.

Key Cases Cited

Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach must remain elements‑based; courts may not substitute a facts‑based inquiry)
Shepard v. United States, 544 U.S. 13 (2005) (permissible documents for modified categorical approach; defendant must assent to factual basis for court reliance)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach framework for prior convictions)
Cabrera‑Perez v. United States, 751 F.3d 1000 (9th Cir. 2014) (Arizona aggravated assault subsections are divisible)
Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (explains divisible statutes and use of modified categorical approach)
Marcia‑Acosta v. United States, 745 F.3d 1237 (9th Cir. 2014) (reiterates limits on relying on plea‑colloquy facts to establish elements)