*1 1093). man, explained at As we
in Lieberman: intended legislature
[T]hе 704.115(a)(1) only retire- exempt or maintained plans
ment established employee organiza-
private employers
tions, unions, arrangements not such as specified to use assets for
by individuals purposes.
retirement at 1095. Annuity not estab- Keyport was employer. an Rath- Simpson
lished for
er, it an individual. Simpson purchased intentions,
Thus, Simpson of his regardless exemption not entitled to claim plan annuity private as a retirement 704.115(b).
under section
TV annuity single-premium
Because the law ei- qualify not under California
does private retire-
ther as life insurance or bankruptcy plan, the BAP and the
ment correctly proper- concluded
court federal
ty exempt property
bankruptcy law.
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellant, ESPARZA-HERRERA,
Gerardo Beltran,
a.k.a. Omar Brabo
Defendant-Appellee.
No. 07-30490. Appeals, States Court of
Ninth Circuit. Dec. 2008.
Argued and Submitted
Filed Feb. *2 Hollar, E.
David Depart- United States Justice, mеnt of Washington, DC, for the plaintiff-appellant. Monaghan,
Thomas Federal Public De- Idaho, Biose, fender ID, Services of for the defendant-appellee. GOULD,
Before: RONALD M. TALLMAN, RICHARD C. CALLAHAN, M. CONSUELO Circuit Judges.
Per Opinion; Curiam Concurrence Judge GOULD.
PER CURIAM: The United States Government appeals the district ruling court’s that Gerardo Es- parza-Herrera’s prior conviction for ag- gravated assault under Arizona Revised (“A.R.S”) § Statutes not a conviction for a “crime of violence” under section 2L1.2 of the United States (the Sentencing “Guidelines”). Guidelines The district court held that the Arizona did not correspond “aggravated definition of assault” that is enumerated as a “crime of violence” in Guidelines result, 2L1.2. aAs the dis- trict court did not apply 16-level en- Esparza-Herrera’s hancement to for illegal reentry into the United States instead reсommended revised PSR and the jurisdiction haveWe alien. deported aby for a “conviction enhancement and 18 U.S.C. a four-level U.S.C. felony” provided 3742(b), any affirm. other and we 2L1.2(b)(l)(D). change This I sentencing reduced *3 in guilty pled to 21-27 months. 70-87 months Esparza-Herrera range from Gerardo 1326(a), U.S.C. violating 8 July 2007 challenged the revised government The reentry by a unauthorized prohibits which a PSR, held that 16- the district court but Pre- Esparza-Herrera’s alien. deported even inappropriate was level enhancement (“PSR”) a 2000 revealed Report sentencing aggra- that specify though the Guidelines assault, aggravated Arizona conviction The is a crime of violence. vated assault 13-1204(A)(11),1 § A.R.S. of in violation generic defini- court held that district ag- commits person a provides which at lеast requires assault aggravated of tion com- person “the when gravated assault recklessness, one version of heightened a of force that by any means mits the assault conduct manifests defendant’s in which disfig- but substantial temporary causes hu- value of to the “extreme loss or urement, temporary but substantial § that A.R.S. 13- It man life.” held a part or any body organ of impairment 1204(A)(11) broadly more than defined was Ari- body part.” Under any of fracture it en- because generic aggravated assault law, assault commits person a zona con- reckless “garden-variety” compassed recklessly knowingly or “[i]ntentionally, apply did not district duct. The court per- another injury to any physical causing approach because categorical modified 13-1203(A)(1). Es- § Ariz.Rev.Stаt. son.” conceded that record government he alleged that indictment parza-Herrera’s no other information contained conviction recklessly ... knowingly or “intentionally, The conduct. Esparza-Herrera’s about disfig- but substantial temporary a caused of vio- the “crime court concluded that official No other the victim. urement” to apply not because did enhancement lence” forming the record judicial document statute of conviction Esparza-Herrera’s information specific contained conviction defini- correspond did not conduct.2 about thus and was tion of Espar- at first concluded The PSR Guide- under the of violence not a crime con- prior za-Herrera’s appealed. The lines. a crime a conviction viction was a accordingly recommended violence and II pur- to his 16-level enhancement in court’s a district review 2L1.2(b)(l)(A)(ii) of the to section suant novo. Guidelines de of the terpretation objected to Esparza-Herrera Guidelines. Dallman, 533 F.3d v. States ground on the recommendation the PSR’s Cir.2008). de (9th alsoWe review was conviction his aggravated ruling that district court’s novo a of violence. for a crime a “crime violence” qualifies as acquiesced, Department The Probation months, up, and tied her several had dated for Espar- after § was A.R.S. 13-1204 revised 1. period. Police hour former A.R.S. her over four The beat conviction. za-Herrera's appears at on her with provision now blood § found victim officers shut, 13-1204(A)(3). face, and eyеs § swollen both hands body. all over her bite marks PSR, Esparza-Herrera According victim, whom he the house his broke into 2L1.2. Guidelines v. with application of the ap- Cortez-Arias, (9th 1114 n. 7 proach.
Cir.2005). Application Note to Guidelines 2L1.2(b)(l)(A)(ii)
Section
of the
2L1.2
defines
“crime of violence” as
applies
any
a 16-level sentencing
offenses,
one
several enumerated
enhancement to a
including “aggravated
defendant convicted un
assault.” U.S.S.G.
l(b)(iii);
der 8 U.S.C.
1326 when that
2L1.2 n.
see
“defendant
also United States
Sun,
previously
deported”
Rising
after a convic
Cir.2008)
tion for a “crime of
(stating
application
violence.”
only
*4
applied
have
the Sentencing
this enhance
Guidel
ines”).3
ment.
We
“When
categorical
use the
offense is
approach
specifically
by
enumеrated
States,
set forth in
the
Taylor
Application
*5
employed
ordinary reck
on
assault
aggravated
v. Go
commentary.”
States
United
arly
“aggravat
as
qualify
can still
conduct
less
(9th
777,
Cir.
mez-Leon,
790
545 F.3d
United
the Guidelines.
assault” under
ed
2008).
“serve[s] as
Code
Penal
The Model
F.3d
484
Mungia-Portillo,
v.
States
generic
determining an offense’s
in
an aid”
Cir.2007).
(5th
Fifth Circuit
The
816-17
F.3d
506
Rodriguez-Guzman,
meaning.
“extreme indif
of an
absencе
that the
held
598, 110
at
U.S.
(citing Taylor, 495
at
stat
in a Tennessee
requirement
ference”
2143).
meaning
the
derive
We
S.Ct.
the
of whether
dispositive
ute was “not
the
from
crime not
Guidelines
enumerated
or outside
within
falls
aggravated
rather
meaning but
ordinary
offense’s
enumer
meaning
the
ordinary
plain,
the
and state
Penal Code
surveying Model
the
Id. at
assault.”
aggravated
ated offense
they define thе
how
to determine
statutes
“the
that
differ
court concluded
The
if A.R.S.
13-
even
Thus
offense.
between
of ‘reckless’
in the definition
ence
as
aggravated
1204(A)(11)
to
equivalent
is
Pe
Model
and the
statute
Tennessee
that
understand
generally
“as
sault
we
Tennessee
remove the
not
does
nal Code
Izaguirre-Flores,
v.
term,”
States
com
family of offenses
from
statute
”
(5th Cir.2005), must
we
270, 275
Id.
assault.’
‘aggravatеd
known
monly
prior
conclude
omitted).
(internal citations
not
was
is
reasoning
not
Circuit’s
Fifth
The
Code
Model Penal
together
if
by our
foreclosed
but is
insight
without
define
most states
and
uses
Fifth Circuit
precedent.
Arizona stat
than
narrowly
does
more
determine
approach”
sense
“common1
ute.
a crime
constitutes
prior
offense
whether
differ
claims
violence
Penal
and Model
Arizona
between
ence
offense
2L1.2(b)(l)(A)(ii)
when
not a
is
requirements
rea
mens
Code
Applica
in
offense
an enumerated
is
The government
meaningful distinction.
v. Mendo
States
See
tion Notes.
Velasquez-
on United
relies
Cir.
za-Sanchez,
481-82
(9th Cir.2005), in
Reyes,
approach,
this
2006).
follow
we to
Were
which we
that a
held
state
defining tary
section”).
That discussion
“knowing
arson as
and malicious” conduct provides further evidence that “extreme
broader than the generic defini
indifference” recklessness is different from
arson,
tion
which
required
“willful and
ordinary recklessness. The commentary
malicious” act.
Id. at
govern
1230. The
suggests that “extreme indifference” reck-
ment overstates Velasquez’s impact. We
lessness “should be treated as
and
murder
stated that in the arson context the com
[] less extreme recklessness should be
mon law definition of “willful”encompasses
punished as manslaughter.”
Id.
210.2
“knowing” and the defendant could not
cmt.
at 22. It adds that “extreme indif-
“demonstrate
person
how a
could act
ference”
represents
recklessness
the “kind
‘knowingly and maliciously’ but not ‘willful of reckless homicide that
fairly
cannot
be
”
ly
maliciously.’
Here,
contrast,
Id.
distinguished in grading terms from homi-
“recklessly under circumstances manifest
cides committed purposely or knowingly.”
ing an extreme indifference to human life”
Id. at 21.
does not encompass “recklessly,” and a
We hold that under the categorical
defendant can be reckless without mani
approach, assessing the
juris
law other
festing an extreme indifference to human
dictions and scholarly commеnt, ordinary
life.
recklessness
a broader mens rea re
agree
with Esparza-Herrera
quirement for aggravated assault than is
the Model Penal Code commentary shows
“recklessness under circumstances mani
the “extreme indifference” reckless-
festing extreme indifference to human
requirement
ness
establishes mens rea
life.” Accordingly, we conclude that
standard for аggravated assault arguably
1204(A)(11)
is broader
than
13—
higher than ordinary recklessness. The
the Model Penal Code’s definition
ag
commentary to the Model Penal
*6
defi-
Code
gravated assault because the Arizona stat
of aggravated
nition
that
states
the
ute alone encompasses acts done with ordi
“extreme indifference” clause specifies a
nary recklessness.
“sрecial character of recklessness.” 2 Am.
Inst.,
Law
Model Penal Code &
With
this
mind,
difference in
under our
COMMEN-
§
(1980).
TARIES 211.1 cmt.
at 189
approach we next determine
aggravated assault definition “reserves whether most states follow the Model Pe
major felony sanctions for assaults
...
nal Code in requiring
than ordinary
more
where the actor was at least reckless ‘un-
recklessness to sustain an aggravated as
der circumstances manifesting extreme in-
sault conviction. See Rodriguez-Guzman,
”
difference to the value of human life.’ Id.
(“[A]n
The Model Penal state Code statutes commentary by fur- conducted the district ther court, comments on government, the “extreme indiffer- and Esparza-Herr- ence” clause in its era discussion reach results, of different murder. all three agree See id. at 189 (stating that the that the majоrity “extreme of states aggravat define indifference” requirement “is ed adapted assault as requiring at least “extreme from the definition of murder” and that indifference” recklessness. The govern “its meaning is discussed in the commen- ment concedes that 22 states require ei GOULD, Judge, with whom Circuit aggravat an intent for knowledge ther CALLAHAN, Circuit and TALLMAN conviction. ed assault Concurring: Judges, join, and states acknowledges further Model follow of Columbia District the court opinion for per curiam Our “extreme requiring definition Penal Code court’s decision the district affirms sum, under In recklessness. indifference” prior convic- Gerardo jurisdic survey 33 own 13-1204(A)(11), government’s § violating A.R.S. for tion minimum, heightened a aat require, qualify tions does not guilty plea, based on his aggra to sustain of recklessness form violencе” under U.S.S.G. “crime of as a Accepting 2L1.2(l)(A)(ii) conviction. of enhance- purposes vated for § premises and analysis seems government’s precedent there our ment. Under ma that a assault, we hold even precedent, our circuit a reckless be no doubt that to is not a injury, states define jority causing significant one “ex heightened, a a it is not least because requiring at as “crime violence” of recklessness. form for Guide- assault” “aggravated indifference” treme Mukasey, is not recklessness spinoza if the purposes Estrada-E lines Cf. banc) (en Cir.2008) an extreme heightened Arizona age life, setting and states of human (describing 35 the value majority pled Esparza-Herrera “the 18 as vast to which at below consent states”). require. conclude did so guilty be 13-1204(A)(11) сonduct encompasses how- reasoning, line of precedential This assault, it is defined yond aggravated that U.S.S.G. ever, ignores largely majority of and a Penal Code the Model 2L1.2(l)(A)(ii) for calls enhancement under states, and therefore a a conviction in cases is not precedent under our that statute longer sen- support a crime of violence crime of violence for a danger pose who for those tence 2L1.2(b)(l)(A)(ii). of A.R.S. violation A conviction public. necessary terms by its previously has a person shows Ill another, causing recklessly assaulted *7 aggra- approach, Under The statute injury. physical substantial at rea of a mens requires vated substan- any “temporary but encompasses “under circumstances recklessness least bodily impairment, disfigurement tial” to the manifesting extreme enough warrant which is serious life.” human value of protection. public’s conviction, 13- A.R.S. Espar- to conclude prefer I would ordinary reck- 1204(A)(11), encompassed deservedly sentenced be might za-Herrera lessness, his and therefore interest, public’s in the longer term to a standard doctrinal to our regard without con- of viоlence. or a crime majority assess what the us to requiring de- correctly court district clude assault. view jurisdictions for a 16- request government’s nied if we could be better my view it In would enhancement, and accord- sentencing level balancing functionally, at the matter look Esparza-Herr- not address ingly we need sentenced being defendant to the fairness arguments. other era’s deserves public that fairness to with approach” sense A “common protection. AFFIRMED. the “ordinary, examines contempo- rary, and common meaning” Gary DAVIS, an individual on behalf would strike himself; this Gary balance. Davis, as Private Attor v. Mungia-Portillo, States ney General and on behalf all oth (5th Cir.2007). similarly ers situated, Plaintiffs-Ap pellees,
But in this sphere esoteric legal anal ysis our precedent circuit in substance says that common sense is out and instead HSBC NEVADA, BANK N.A., a national we must canvass and assess what the ma bank; HSBC Corporation, Finance a jority jurisdictions have concluded. I Delaware corporation; Buy Best Co., might disagree with the conclusion of the Inc., a Minnesota corporation; Best Fifth Mungia-Portillo Circuit in Buy Stores, L.P., Virginia limited extent it suggests that there is no relevant partnership, Defendants-Appellants. difference between extreme indifference No. 08-57062. and ordinary recklessness, but I don’t think that such difference should very be Court of Appeals, important in assessing whether there has Ninth Circuit. been an aggravated assault. I pre would Argued and fer to use the Submitted Feb. 2009. Fifth Circuit’s “common sense” approach, rather than trying to as Filed Feb. sess jurisdictiоn the standard by jurisdic tion. important What is to me is whether
the Arizona statute to which Esparza- pled
Herrera guilty shows an offense suffi
ciently serious that we should it consider
“crime of violence” warranting a higher
sentence under the advisory Guidelines in
the interest of protecting the community.
Using a common approach, sense I would
have problem no concluding that Esparza-
Herrera’s guilty plea to violating A.R.S.
§ 13-1204(A)(11) yielded a prior conviction
of a crime of violence for purposes of
calculating the range of the advisory Sen
tencing Guidelines, even if supported only
by the recklessness required under the
statute to which he pled guilty.1 *8 1. Because the district court sentenced at the even if precedent circuit applied negate high Guidelines, end of the this case does not the "crime of violence” enhancement of the present question whether an above-Guide- offense level. lines might have been reasonable notes generally issuе on are appeal “treated whether the district authoritative in terpretations court should
Notes
v. Notes United as a 495 violence,’ 575, 602, ‘crime of 2143, U.S. have consistently 110 we S.Ct. 109 L.Ed.2d (1990), drawn the conclusion 607 to the offense determine whether a defen per se crime of violence under prior dant’s the conviction Guide satisfies the Guide lines.” United States v. Rodriguez-Guz lines definition of a crime of violence. man, (9th 738, 506 Cir.2007). F.3d 741 Pimentel-Flores, States v. 339 Therefore, to (9th 959, Cir.2003). whether Esparza- F.3d determine 968 Under this Herrera’s aggravated assault approach convic the state statute of conviction is tion was a conviction crime of “compared vio with the generic definition of lence, we must decide if A.R.S. that crime to 13- determine if the defendant’s 1204(A)(11) corresponds to the Guidelines conviction is a crime of violence pursuant of aggravated definition assault. to the Sentencing Guidelines.” United States v. Velasquez-Reyes, 427 F.3d Esparza-Herrera argues that his statute (9th Cir.2005). Ordinarily, when the of conviction is broader than the categorical approach fails we apply the definition of aggravated assault because modified categoricаl approach, which ex Arizona law permits an aggravated assault amines “documents in the record of convic conviction for ordinary recklessness while tion to determine if there is sufficient evi the Model Penal requires Code a height- dence to conclude that a defendant ened form of recklessness. In Arizona a convicted of the elements of the generical person commits by “[i]ntentionally, ” ly defined crime.... knowingly or recklessly causing any physi- Ladwig, (9th 1003 n. 5 cal injury to another person.” Ariz.Rev. Cir.2005) (internal omitted). citation Stat. added). (emphasis Here, however, government concedes Both Arizona and the Model Penal Code that the record of conviction is insufficient define “recklessly” similarly, but under the satisfy the modified categoricаl ap Model Penal Code reckless behavior can proach. Hence we are solely concerned sustain a conviction “simple assault” Application The Notes alternatively Narvaez-Gomez, define a United States v. which held "crime of violence” as an "offense under fed categorical under the approach crimes of eral, state, law local that has as an element violence not enumerated the use, use, attempted or threatened use of are limited to "offenses committed through physical against person force of another.” against intentional use of force person l(b)(iii). U.S.S.G. n. Any argument 2L1.2 rather another than grossly negli reckless or 1204(A)(11) that A.R.S. is a gent crime vio conduct.” 489 13— F.3d Cir. lence under 2007). this dеfinition is foreclosed § 13- (de- whether determine we would 2.02 §§ only. See Model Code PeNal 1204(A)(11) the enumerat equivalent 211.1(1)(A) “is (defining “recklessly”), fining as that aggravated assault”). ed Code offense Model Penal “simple ordinary, contem in its occurs understood term is aggravated provides Mungia- meaning.” common purposefully, porary, acts person only when (internal citations Portillo, cirсum- at 816 “recklessly under knowingly, or omitted). manifesting extreme stances life.” human value of Penal Model sense the common do use 211.1(2)(a). ar- Esparza-Herrera Code the cat Instead, apply must we approach. indiffer- “extreme lack of an gues object when approach “even egorical § 13- in A.R.S. requirement ence” crime of per as a se is enumeratеd offense 1204(A)(11) his statute makes Rodri under Guidelines.” violence as- than substantially broader apply In at 744. guez-Guzman, and, Code Penal the Model sault a “tradi approach to ing Guidelines. under the consequently, assault, crime” such tional that we counters meaning uniform crime’s] [the “we derive Circuit, which held the Fifth follow should meaning contemporary generic, from permitting a state statute states, by schol guided by most