United States v. Valentin Carrasco-Tercero, 2014 U.S. App. LEXIS 4726

Defendant Valentin Carrasco‑Tercero pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(1).
The PSR applied a 12‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because of a 1985 New Mexico conviction for aggravated assault with a deadly weapon (N.M. Stat. § 30‑3‑2(A)).
Carrasco‑Tercero objected, arguing the New Mexico aggravated‑assault statute could encompass “insulting language” and thus might criminalize non‑violent conduct that lacks as an element the use, attempted use, or threatened use of physical force.
The district court overruled the objection, adopted the PSR, and sentenced him to 27 months (guidelines range 27–33 months).
On appeal, the Fifth Circuit reviewed de novo whether the prior conviction is a “crime of violence” under U.S.S.G. § 2L1.2 and applied the categorical (and where necessary modified‑categorical) approach.
The court concluded New Mexico law realistically confines aggravated assault with a deadly weapon to attempted‑battery or apprehension‑causing theories (involving force or threatened force), and rejected the argument that the statute is realistically applied to convictions based solely on “insulting language.”

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Carrasco‑Tercero’s New Mexico aggravated assault conviction is a "crime of violence" under U.S.S.G. § 2L1.2 (element clause)	The conviction is not a crime of violence because NM assault can be based on subsection (C) — "insulting language" — which does not require use or threat of physical force	The statute, as applied in New Mexico, requires elements involving attempted use, threatened use, or causing apprehension of force (attempted battery or menacing conduct with a deadly weapon)	The conviction qualifies as a crime of violence; the enhancement was properly applied
Whether a theoretical possibility that the statute could reach non‑violent "insulting language" conduct defeats the categorical match	The court must assume the least culpable conduct criminalized by the statute; a theoretical application to insulting language means the statute is not a categorical match	The defendant must show a realistic probability the State would apply the statute to that least culpable conduct; no such realistic probability exists here	The court applies Moncrieffe’s realistic‑probability standard and finds no realistic probability that New Mexico prosecutes aggravated assault with a deadly weapon based only on insulting language; thus the categorical match holds

Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach requires realistic probability, not theoretical possibility)
United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012) (de novo review whether prior conviction is a crime of violence)
United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007) (crime‑of‑violence definitions under Guidelines)
United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010) (aggravated assault with deadly weapon analyzed under categorical approach)
United States v. Rede‑Mendez, 680 F.3d 552 (6th Cir. 2012) (held New Mexico aggravated assault with a deadly weapon not a crime of violence due to potential "insulting language" theory)
Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (modified categorical approach authority)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (U.S. 2007) (requirement that realistic probability be shown by pointing to state court applications)