On January 26, 1999, defendant-appellant Juan Ceron-Sanchez entered a plea of guilty to one count of Reentry After Deportation in violation of subsections (a) and (b)(2) of 8 U.S.C. § 1326.
I. BACKGROUND
Ceron-Sanchez is a citizen of Mexico. On February 28, 1996, Ceron-Sanchez pleaded guilty to Attempted Aggravated Assault with a Deadly Weapon/Dangerous Instrument in violation of Ariz. Rev. Stat. §§ 13-1001 and 13-1204(A)(2) and (B), a class four felony, in the Superior Court of Arizona, Pima County, for conduct relating to an automobile accident.
On November 25, 1998, the Immigration and Naturalization Service (“INS”) conducted a routine record check which revealed that Ceron-Sanchez was being held by the Maricopa County Sheriffs Office in Phoenix, Arizona after being arrested for possession of drug paraphernalia. On December 1, 1998, in an interview with an INS agent, Ceron-Sanchez admitted that he was in the United States illegally. On December 8, 1998, Ceron-Sanchez was charged by criminal complaint in the United States District Court for the District of Arizona with one count of Reentry After Deportation in violation of subsections (a) and (b)(2) of 8 U.S.C. § 1326, and on December 22, 1998, the prosecution filed an information containing the same charge. Ceron-Sanchez pleaded guilty to the information without a plea agreement on January 26,1999.
Ceron-Sanchez was sentenced on May 27, 1999. The district judge assigned Cer-on-Sanchez a base offense level of 8 under § 2L1.2(a) of the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”). The court then increased Ceron-Sanchez’s offense level by 16 under U.S.S.G. § 2L1.2(b)(l)(A) which applies if the defendant previously was deported after a criminal conviction for an aggravated felony. The court then subtracted three levels for acceptance of responsibility under U.S.S.G. § 3El.l(a) and (b), resulting in a total adjusted offense level of 21. Ceron-Sanchez’s criminal history category was IV, which placed him in a Guidelines range of 57 to 71 months imprisonment. Noting that Ceron-Sanchez had been deported .four times previously, the judge sentenced Ceron-Sanchez to 60 months imprisonment to be followed by three years of supervised release.
II. ANALYSIS
As we noted in United States v. Sandoval-Barajas,
Under U.S.S.G. § 2L1.2(b)(l)(A), the district court must increase a defendant’s base offense level by 16 levels if the defendant previously was deported after a criminal conviction for an aggravated felony. “ ‘Aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, comment, (n.l). Under subsection (F) of 8 U.S.C. § 1101(a)(43), the term “aggravated felony” includes a “crime of violence” as defined in 18 U.S.C. § 16 for which the term of imprisonment was at least one year. A “crime of violence” is defined as
(a) an offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may*1172 be used in the course of committing the offense.
18 U.S.C. § 16. Under 8 U.S.C. § 1101(a)(43)(U), an attempt or conspiracy to commit any of the offenses described in § 1101(a)(43) also qualifies as an aggravated felony.
Ceron-Sanchez asserts that his attempted aggravated assault conviction was based on reckless conduct and, therefore, does not constitute a crime of violence for aggravated felony purposes.
The judgment in the March 27, 1996 case indicates that Ceron-Sanchez was convicted under Ajriz. Rev. Stat. §§ 13-1001 and 13-1204(A)(2) and (B). Section 13-1001 is Arizona’s general attempt statute, and § 13-1204(B) sets the class of felony for the various types of aggravated assaults listed in § 13-1204(A). Therefore, we focus our analysis on the substantive provision of Ceron-Sanchez’s conviction, § 13-1204(A)(2), which provides:
A. A person commits aggravated assault if such person commits assault as defined in § 13-1203 under any of the following circumstances:
2. If such person uses a deadly weapon or dangerous instrument.
ARiz. Rev. Stat. § 13-1204(A)(2). Assault is defined under § 13-1203 as follows:
A. A person commits assault by:
1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
Ariz. Rev. Stat. § 13-1203(A). A “dangerous instrument” is “anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.” Ariz. Rev. Stat. § 13-105(8).
The government argues that Ariz. Rev. Stat. § 13-1204(A)(2) qualifies as a crime of violence under both subsection (a) and (b) of 18 U.S.C. § 16. Under 18 U.S.C. § 16(a), we must determine whether aggravated assault with a deadly weapon or dangerous instrument qualifies as “an offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another.” This court has recently held “that ‘the force necessary to constitute a crime of violence [ ] must actually be violent in nature.’” Ye v. INS,
A conviction under Ariz. Rev. Stat. § 13-1204(A)(2) also satisfies the alternative definition of a crime of violence set out in 18 U.S.C. § 16(b). Subsection (b) covers felony offenses which by them nature “involve[ ] a substantial risk that physical force ... may be used against the person or property of another.” A conviction for aggravated assault under Ariz. Rev. Stat. § 13-1204(A)(2) requires proof that the defendant used either a deadly weapon or an instrument which “under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.” (emphasis added). The inclusion of this element, together with the assault provisions of § 13-1203(A), results in a high risk of violence against the person of another.
Ceron-Sanchez’s statute of conviction reaches only conduct that would constitute a crime of violence; therefore, we do not look beyond the statutory definition. Ye,
Ceron-Sanchez argues in the alternative that the Sentencing Commission exceeded its authority in adopting U.S.S.G. § 2L1.2, and therefore, the provision is invalid. Under 28 U.S.C. § 994(d), “[t]he Commission shall assure that the guidelines and policy statements are entirely neutral as to the ... national origin ... of offenders.” Ceron-Sanchez asserts that “the 16 level increase in § 2L1.2 is based entirely on national origin.” However, by its express terms, the § 2L1.2(b)(l)(A) increase is based on the fact that the defendant “previously was deported after a criminal conviction” for an aggravated felony. Section 2L1.2 makes no mention of national origin. As the Supreme Court noted in Almendarez-Torres v. United States,
III. CONCLUSION
The sentence imposed by the district court is AFFIRMED.
Notes
. We recognize that 8 U.S.C. § 1326(b)(2) constitutes a sentencing enhancement and not a separate offense. Almendarez-Torres v. United States,
.This was not Ceron-Sanchez's first encounter with the legal system. At the time of his accident, Ceron-Sanchez had two prior Arizona convictions for driving under the influence of alcohol, one prior trespassing conviction, and a prior conviction for felony theft of a vehicle. Ceron-Sanchez had been deported from the United States in both 1994 and 1995.
. Following his February 1998 deportation, Ceron-Sanchez was arrested in June 1998 by the Phoenix Police Department for misconduct involving a weapon based on an incident in which Ceron-Sanchez was caught riding a bicycle while carrying a .22 caliber rifle concealed under a blanket on the handlebars. He was deported in July 1998.
. While counsel for Ceron-Sanchez characterized the conviction as "reckless driving” both in his brief and at oral argument, it is important to note that Ceron-Sanchez pleaded guilty to attempted aggravated assault and not to reckless driving or driving under the influence of alcohol, both of which are offenses set out in the Arizona vehicle code.