Gerardo Grajeda appeals from the 78-month sentence imposed following his plea of guilty to illegal reentry in violation of 8 U.S.C. § 1326. In arriving at this sentence, the district court applied a sixteen-level enhancement to Grajeda’s offense level based on a determination that Grajeda had been previously convicted of assault with a deadly weapon or by means likely to produce great bodily injury under California Penal Code section 245(a)(1), and that such conviction was a “crime of violence” under United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii).
In this appeal, we consider whether a prior conviction for a violation of California Penal Code section 245(a)(1) qualifies as a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). We conclude that it does. We also consider and reject Grajeda’s claims that the district court failed to resolve disputed factual issues concerning his prior convictions, as re *1188 quired by Rule 32(i) of the Federal Rules of Criminal Procedure, and that the district court erred by enhancing his sentence on the basis of prior convictions that were neither alleged in the indictment nor proven beyond a reasonable doubt. We therefore affirm the sentence, but remand for the district court to delete the reference in the judgment to 8 U.S.C. § 1326(b) as a crime of conviction.
I. Factual Background
Grajeda, a Mexican citizen, was indicted on January 31, 2007, on one count of illegal reentry in violation of 8 U.S.C. § 1326. Grajeda pled guilty before a magistrate judge, and, on August 20, 2007, the district court accepted his plea.
A probation officer prepared and submitted a Presentence Report (“PSR”) for the court’s consideration. The PSR outlined a lengthy criminal record, including a 1996 conviction for assault with a deadly weapon or by means likely to produce great bodily injury, in violation of California Penal Code section 245(a)(1). The report calculated an advisory guidelines range of seventy to eighty-seven months, and recommended a sentence of seventy-eight months. The guidelines calculation relied upon application of a sixteen-level enhancement to Grajeda’s offense level based on a determination that Grajeda’s prior conviction under California Penal Code section 245(a)(1) was a crime of violence. Grajeda objected to the PSR on the ground that the statutory maximum for illegal reentry was two years, and argued that his prior convictions could not be used to sentence him beyond that maximum because they were not alleged in the indictment and proven beyond a reasonable doubt to a jury, and, alternatively, because they were not proven by clear and convincing evidence.
The district court conducted a combined plea and sentencing hearing on August 20, 2007. The court overruled Grajeda’s objections to the PSR, adopted the PSR’s recommendations, and sentenced Grajeda to seventy-eight months in prison. The judgment listed the “Title and Section” of the offense as “8 USC 1326(a) and (b).” Grajeda timely appealed.
II. Standard of Review
We review de novo the district court’s compliance with Rule 32 of the Federal Rules of Criminal Procedure.
See United States v. Thomas,
III. Rule 32
Grajeda first objects to his sentence on the ground that the district court failed to resolve factual disputes regarding the prior convictions alleged in the PSR; he argues that in failing to do so, the court violated Rule 32 of the Federal Rules of Criminal Procedure. We disagree with Grajeda’s characterization of the dispute presented to the district court. Because Grajeda’s objections to the PSR were legal, not factual, the district court was not required to make any factual determinations, and so committed no error.
Rule 32 provides that a sentencing court “may accept any undisputed portion of the presentence report as a finding of fact,” but that the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R.Crim.P. 32(i)(3)(A)-(B). On appeal, Grajeda argues that he “controverted” the *1189 fact of his prior convictions in his objections to the PSR, and that the district court improperly relied on the 1996 section 245(a)(1) conviction listed in the PSR to enhance his sentence without ruling on the factual dispute.
A review of Grajeda’s objections, however, as laid out in his sentencing memorandum, leaves no doubt that his objections raised only
legal
arguments, not factual ones. Grajeda did not controvert the accuracy of the PSR or argue that he had not been convicted of the listed crimes. Rather, he argued that under
United States v. Booker,
Finally, the district court did rule on Grajeda’s objections, expressly overruling them during the sentencing hearing. The court’s ruling was proper under
United States v. Romero-Rendon,
IV. Crime of Violence Enhancement
To determine whether the district court properly applied the sixteen-level “crime of violence” sentencing enhancement in U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2006)
1
based on Grajeda’s conviction under California Penal Code section 245(a)(1), we apply the approach set forth in
Taylor v. United States,
A.
An offense is a “crime of violence” for purposes of § 2L1.2(b)(l)(A)(ii) if it either (1) constitutes one of the crimes listed in the “enumerated offense” prong of the def
*1190
inition, or (2) “has as an element the use, attempted use, or threatened use of physical force against the person of another” under the definition’s second clause, referred to as the “element” prong or test. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2006);
2
see also United States v. Gomez-Leon,
On appeal, the government argues that assault with a deadly weapon or force likely to cause great bodily injury under section 245(a)(1) requires proof of the use, attempted use, or threatened use of physical force against another person, and that the offense is therefore a crime of violence under the element prong of the § 2L1.2 definition. We agree, and therefore need not address whether section 245(a)(1) also qualifies as an “aggravated assault” under the enumerated offense prong of § 2L1.2.
Over the past several years, courts have endeavored to delineate the contours of the various “crime of violence” definitions.
See Gomez-Leon,
Although both
Leocal
and
Fernandez-Ruiz
dealt with the “crime of violence” definition provided in 18 U.S.C. § 16(a), we subsequently applied their reasoning to the element prong of § 2L1.2, noting that “the relevant definitions under § 16(a) and U.S.S.G. § 2L1.2 are identical.”
4
United
*1191
States v. Narvaez-Gomez,
We have also addressed the
nature
of the force required under the § 2L1.2 crime of violence definition, holding that such force “must actually be violent in nature.”
United States v. Lopez-Montanez,
B.
California Penal Code section 245(a)(1) imposes criminal liability on “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.”
5
The statute thus requires two basic elements, the second defined in the disjunctive: the defendant must have (1) committed an assault (2) using a deadly weapon or instrument or any other “means of force likely to produce great bodily injury.”
See People v. Russell,
By criminalizing “unlawful attempts] ..: to commit a violent injury on the person of another” with a deadly weapon or force likely to produce serious injury, the statutory language requires at least “attempted use ... of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n. l(B)(iii). On its face, section 245(a)(1) would thus qualify as a crime of violence under the element prong of § 2L1.2. However, “in determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.”
Ortega-Mendez,
1.
Grajeda first argues that California Penal Code section 245(a)(1) does not require force that is “violent in nature,” and therefore does not constitute a crime of violence. We disagree. Although Grajeda is correct that under California law, assault can be accomplished through “the least touching,”
People v. Rocha,
California courts have long interpreted the “violent injury” element in criminal assault to require only “the least touching” that is unconsented or otherwise wrongful; such touching “need not be violent or severe.”
Colantuono,
Unlike simple assault, however, section 245(a)(1) requires that the assault be committed either (1) “with a deadly weapon or instrument” or (2) “by any means of force likely to produce great bodily injury.” If the conviction is based on “force likely to produce great bodily injury,” such force must necessarily go beyond the “least touching,” and represents “actual force” that is violent in nature.
Similarly, we conclude that even the “least touching” with a deadly weapon or instrument, which California defines as any object “used in such a manner as to be capable of producing and likely to produce, death or great bodily injury,”
People v. Aguilar,
Our holding also puts us in accord with the Fifth and Tenth Circuits. In
United States v. Treto-Martinez,
the Tenth Circuit considered whether a Kansas aggravated battery offense constituted a crime of violence under the element test, and concluded that a person who touches another “with a deadly weapon in ‘a rude, insulting or angry manner,’ has at the very least ‘threatened use of physical force’ for purposes of § 2L1.2(b)(l)(A).”
We therefore hold that the force required by section 245(a)(1) is sufficiently “violent in nature” to satisfy the § 2L1.2 crime of violence definition.
2.
Grajeda next argues that section 245(a)(1), as construed by the California courts, does not require proof of sufficiently intentional conduct to qualify as a crime of violence. Although some language from state court opinions supports this assertion, the case law is decidedly mixed, and *1193 we are regardless bound by this court’s previous conclusions to the contrary.
The
mens rea
required for assault under California law has been the subject of a long, tortured, and ongoing set of explanations in the California courts.
See People v. Williams,
The “general intent” designation, however, does not define a particular
mens rea;
it merely clarifies that the crime does not require “specific intent.”
7
See Rocha,
In Colantuono, the court attempted to explain the mens rea for assault as follows:
The intent to cause any particular injury, to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary. The pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm. Because the nature of the assaultive conduct itself contemplates physical force or “injury,” a general intent to attempt to commit the violence is sufficient to establish the crime.
*1194
In 2001, the California Supreme Court revisited the mental state required for assault.
See Williams,
We may attribute much of th[e] confusion to the fact that the gravamen of assault is the likelihood that the force applied or attempted to be applied will result in great bodily injury. Because assault criminalizes conduct based on what might have happened — and not what actually happened — the mental state for assault incorporates the language of probability, i.e., direct, natural and probable consequences. This language, however, arguably implies an objective mental state consistent with a negligence standard.
Williams,
[A] defendant is only guilty of assault if he intends to commit an act which would be indictable as a battery, if done, either from its own character or that of its natural and probable consequences. Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.
Id. at 202-03 (emphasis added) (citations and internal quotation marks omitted).
Although the
Williams
court insisted that the above language did not define the
mens rea
of assault in negligence terms, the dissent disagreed.
See id.
at 207 (Kennard, J., dissenting) (noting that “[cjriminal negligence is determined by an objective standard based on whether a reasonable person
in the defendant’s position
would have been aware of the risk of harm to another”);
see also People v. Wright,
At the same time,
Williams
and
Colantuono
elsewhere suggest that the use of force must be intentional, and only the specific injury need not be intended.
See Colantuono,
We also note that at least one California intermediate court has approved standard jury instructions for section 245 stating that the government need not “prove that the defendant actually intended to use force against someone.”
People v. Flores,
But in parsing the
mens rea
required by section 245(a), we do not write on a blank slate. In
Heron-Salinas,
we recently held that assault with a firearm under Califor
*1196
nia Penal Code section 245(a)(2) is categorically a crime of violence under 18 U.S.C. § 16(a) and 16(b).
8
Heron-Salinas forecloses Grajeda’s argument that the mens rea in section 245(a)(1) is insufficient to meet the requirements of the § 2L1.2 crime of violence definition. The mens rea element for assault with a firearm under section 245(a)(2) is the same as that required for assault with a deadly weapon under section 245(a)(1); both offenses rely on the definition of assault in California Penal Code section 240 for their mens rea element, and the critical Williams and Colantuono cases interpreting that element are applicable to both offenses.
Further, though this court has evinced some hesitation in applying crime of violence determinations under § 16 to inquiries conducted under the Guidelines definition,
see, e.g., United States v. Pimentel-Flores,
We are therefore bound by Heron-Salinas’ conclusion that assault under California Penal Code section 245(a) requires proof of sufficiently intentional conduct to satisfy the mens rea requirement for a crime of violence set forth in Leocal and Femandez-Ruiz. Accordingly, we hold that assault with a deadly weapon or by means of force likely to produce great bodily injury under section 245(a)(1) is categorically a crime of violence under the element prong of § 2L1.2. The district court thus committed no error in applying a sixteen-level enhancement to Grajeda’s base offense level pursuant to § 2L1.2(b)(l)(A)(ii).
Y. Apprendi
Finally, Grajeda argues that the district court erred under
Apprendi v. New Jersey,
VI. Conclusion
Because Grajeda raised no factual objections to the PSR, the district court committed no error in relying on the PSR to establish Grajeda’s prior conviction under California Penal Code section 245(a)(1). The court also committed no error in applying the sixteen-level enhancement in U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the basis that Grajeda’s section 245(a)(1) conviction was for a “crime of violence.” We therefore AFFIRM the sentence. We REMAND only for the district court to correct the judgment of conviction by removing the reference to 8 U.S.C. § 1326(b).
See United States v. Herrera-Blanco,
AFFIRMED and REMANDED.
Notes
. The district court applied the 2006 edition of the United States Sentencing Guidelines Manual in calculating Grajeda’s sentencing guideline range, and all references are to that edition. The 2006 and 2008 versions of § 2L1.2(b)(l)(A)(ii) are identical, and instruct the court to increase a defendant’s base offense level by sixteen levels ”[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii).
. The definition provides in full:
"Crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2006). The 2008 definition differs slightly in its description of the enumerated offenses; the only difference in the "element” prong is the insertion of the word "other” between “any” and "offense.” U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2008).
. The Comprehensive Crime Control Act of 1984 includes a statutory definition for "crime of violence,” codified at 18 U.S.C. § 16, which is applicable to statutes using the phrase.
See Gomez-Leon,
. Like the element prong in § 2L1.2, the crime of violence definition in § 16(a) includes any "offense that has as an element the use, attempted use, or threatened use of physical force.” 18 U.S.C. § 16(a); U.S.S.G. § 2L1.2, cmt. n. l(b)(iii) (same). The sole difference is that the § 16(a) definition is inclusive of force "against the person or property of another,” whereas the Guidelines definition covers only force "against the person of another.” Id. (emphasis added). Section 16(b) offers an additional definition, based on the "risk that physical force ... may be used” that is not included in the § 2L1.2 definition. 18 U.S.C. § 16(b) (defining as a crime of violence "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 be used in the course of committing the offense”).
. California Penal Code section 245(a)(1) provides in full:
Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.
Cal.Penal Code § 245(a)(1) (West 1995). Neither section 245(a)(1) nor section 240, which defines the term "assault,” has changed since Grajeda's conviction in 1995.
. The two most recent California Supreme Court cases holding that assault is not a specific intent crime prompted strong minority opinions arguing the contrary.
See Williams,
There is general agreement that the original impetus for treating assault as a general, rather than specific, intent crime was to rule out the defense of "voluntary intoxication.”
See Colantuono,
. See generally 1 W.R. LaFave & A. Scott, Substantive Criminal Law § 5.2(e) (2d ed.2003); Dressier § 10.06 ("The terms 'specific intent’ and ‘general intent’ are the bane of criminal law students and lawyers.... [Many] text writers recommend that they be abandoned altogether.” (internal quotation marks omitted)).
. Additionally, we held that section 245(a)(1) is a crime of violence for the purposes of 18 U.S.C. § 16 in
Ortiz-Magana v. Mukasey,
Similarly, our analysis is not limited by our discussion of a crime of violence sentencing enhancement premised on a section 245(a)(2) conviction in
United States v. Diaz-Argueta,