UNITED STATES of America, Plaintiff-Appellee, v. Paulino MORALES-ALONSO, Defendant-Appellant.
No. 16-14925
United States Court of Appeals, Eleventh Circuit.
January 5, 2018
1311
Colin M. Garrett, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA, for Defendant-Appellant.
Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS,* District Judge.
* Honorable Kathleen Williams, United States District Judge for the Southern District of Florida, sitting by designation.
JULIE CARNES, Circuit Judge:
This appeal requires us to decide whether Georgia aggravated assault as defined by
BACKGROUND
Defendant, a Mexican citizen who was in the United States illegally, was convicted in 2012 of committing an aggravated assault in Georgia. At the time of Defendant‘s conviction,
- (1) With intent to murder, to rape, or to rob;
- (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or
- (3) [Against a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
Following his Georgia aggravated assault conviction, Defendant was removed from the United States. A few months after his removal, immigration officials again found Defendant in a Georgia jail after he had been arrested on charges of possessing methamphetamine and marijuana, obstructing a law enforcement officer, and giving a false name. Defendant was convicted on those charges and, while incarcerated, he was charged federally with illegal reentry in violation of
Pursuant to § 2L1.2(a) of the 2015 Sentencing Guidelines, the Pre-Sentence Report (“PSR“) assigned Defendant a base offense level of 8. Citing Defendant‘s prior Georgia conviction for aggravated assault, the PSR applied a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines. At the time of Defendant‘s sentenc-2ing, that provision required such an enhancement when a defendant previously was deported after being convicted of a felony “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015).2 The PSR determined that Defendant‘s Georgia aggravated assault conviction qualified as a crime of violence, and that the enhancement was thus warranted. After applying the enhancement and subtracting 3 levels for acceptance of responsibility, the PSR set Defendant‘s total offense level at 21 and his criminal history category at VI, yielding an advisory guideline range of 77 to 96 months.
Defendant objected to the 16-level enhancement, arguing that his Georgia aggravated assault conviction does not qualify as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). The district court rejected Defendant‘s argument and applied the enhancement, but the court did vary down from the calculated offense level to an offense level of 19, which yielded a sentencing range of 63 to 78 months. After giving Defendant credit for one month that he spent in ICE custody, the court imposed a sentence of 63 months.
DISCUSSION
I. Standard of Review
The only issue on appeal is whether Defendant‘s Georgia aggravated assault conviction under
II. Section 2L1.2‘s Crime of Violence Enhancement
The operative version of § 2L1.2(b)(1)(A)(ii) requires a 16-level enhancement if a defendant who is convicted of illegal reentry “previously was deported” after being convicted of a felony that is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary3 to § 2L1.2 defines the term “crime of violence” to mean:
[A]ny of the following offenses under federal, state, or local law: 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 other 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, comment. n.1(B)(iii) (emphasis added). This definition is disjunctive. United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). Thus, a felony conviction qualifies as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) if the conviction is for an offense that either (1) is enumerated in the first clause (the “enumerated offenses clause“) of the commentary‘s definition or (2) satisfies the second clause (the “elements clause“) of the definition because it has “the use, attempted use, or threatened use of physical force” as an element. See Garcia-Martinez, 845 F.3d at 1129 (“We refer to the first part of the definition as the enumerated offenses clause and the second part as the elements clause.“).
The Government argues that Defendant‘s Georgia aggravated assault conviction satisfies both the enumerated offenses clause and the elements clause of § 2L1.2‘s definition of crime of violence. As discussed below, we agree that Defendant‘s conviction qualifies as a crime of violence under the enumerated offenses clause. Accordingly, we affirm Defendant‘s sentence on that ground.4
III. Enumerated Offenses Clause Analysis
Although “aggravated assault” is included among the list of enumerated offenses in § 2L1.2‘s defining commentary, that does not mean Defendant‘s Georgia aggravated assault conviction automatically qualifies as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). See Palomino Garcia, 606 F.3d at 1327 (citing Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) for the rule that enumerated offenses in a federal sentencing statute “must have some uniform definition independent of the labels employed by the various States’ criminal codes” (internal quotation marks omitted)).5 Under the analytical framework set
A. Generic Aggravated Assault
This Court has already completed the first step of the analysis. In Palomino Garcia, we defined generic “aggravated assault” for purposes of § 2L1.2 to mean “a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” See id. at 1332 (emphasis added). The Court in Palomino Garcia arrived at that definition by considering the elements of aggravated assault that are most commonly found in state definitions of the offense and by consulting “prominent secondary sources, such as criminal law treatises and the Model Penal Code.” See id. at 1331. As the Court explained in Palomino Garcia, those sources indicate that the most common aggravating factors underlying an aggravated assault conviction are “the means used to commit the crime, such as use of a deadly weapon, and the consequences of the crime, such as serious bodily injury.” Id. at 1332 (internal quotation marks omitted).
Applying Palomino Garcia, generic aggravated assault has two essential elements. Id. at 1332. First, there must be a “criminal assault.” Id. Second, the assault must be accompanied by either “the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” Id.6
B. Defendant‘s Georgia Aggravated Assault Conviction
Now we must compare the generic definition of aggravated assault set forth in Palomino Garcia with the elements of the Georgia aggravated assault statute Defendant was convicted of violating. See id. at 1331. In making that comparison, we apply a categorical approach. See Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). That is, we look at how the statute of conviction defines the offense at issue rather than looking at the particular facts underlying the defendant‘s conviction. See Welch v. United States, 578 U.S. 120, 136 S.Ct. 1257, 1262, 194 L.Ed.2d 387 (2016) (“Under the categorical approach, a court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how
1. The aggravator component of Georgia‘s aggravated assault statute is divisible.
Again, Georgia‘s aggravated assault statute defines the offense of aggravated assault to include an assault that is committed (1) with the intent to murder, rape, or rob, (2) with a deadly weapon or an “object, device, or instrument” that is “likely to or actually does result in serious bodily injury” when used offensively, or (3) by discharging a gun in certain situations.
Nevertheless,
2. Defendant was convicted of assault with a deadly weapon or other qualifying object under subsection (a)(2) of Georgia‘s aggravated assault statute.
As discussed, when a statute is potentially overbroad and divisible, we may apply the modified categorical approach to determine which crime, with what elements, the defendant was convicted of committing, so that we may then compare those elements with the generic version of the enumerated offense. See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (“[T]he modified approach ... helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant‘s conviction.“) Applying the modified categorical approach in this case, it is apparent from the available Shepard documents7 that Defendant was convicted of committing aggravated assault with a deadly weapon or other qualifying “object, device, or instrument” in violation of
C. Comparison of Elements
Defendant concedes, as he must, that assault with a deadly weapon qualifies as generic aggravated assault under the definition of that offense set forth in Palomino Garcia. But he argues that
1. The Georgia Supreme Court has defined O.C.G.A. § 16-5-21(a)(2) to require assault with a deadly weapon for a conviction.
The Georgia Supreme Court has held that the “object, device, or instrument” phrase in
We are bound by the Georgia Supreme Court‘s interpretation of state law, including its determination of the elements of
2. Georgia‘s definition of deadly weapon for purposes of O.C.G.A. § 16-5-21(a)(2) to include an object that is deadly because of the manner in which it is used is consistent with the generic meaning of the term deadly weapon.
Acknowledging the import of Green and Easter, Defendant argues that Georgia‘s definition of a qualifying deadly weapon under
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
Model Penal Code § 210.0(4) (emphasis added). See also Black‘s Law Dictionary 1827 (10th ed. 2014) (defining “deadly weapon” to encompass any “device, instrument, material, or substance that, from the manner in which it is used ... is calculated or likely to produce death” (emphasis added)); Gov‘t of Virgin Islands v. Robinson, 29 F.3d 878, 886 (3d Cir. 1994) (noting that, under the common law, “whether a weapon is deadly depends upon two factors: (1) what it intrinsically is and (2) how it is used.“). Georgia‘s aggravated assault statute, as interpreted by the Georgia Supreme Court, similarly defines the term deadly weapon to encompass both a per se deadly weapon as well as any other “object, device, or instrument” that is “likely to or actually does result in serious bodily injury” because of the manner in which it is used in a particular case. See
3. Georgia‘s statutory definition of a deadly weapon to include an object “which, when used offensively, actually does result in serious bodily injury” is not overbroad.
Finally, we reject Defendant‘s more specific argument that Georgia‘s definition of a deadly weapon is overbroad because it includes an “object, device, or instrument” that “actually does result in serious bodily injury.” Defendant contends that this language encompasses the use of an object that happens to cause injury in a particular case, regardless of the manner in which the object is used and even if injury is unlikely. As an example of an assault committed with such an object, Defendant proffers a hypothetical involving an “innocent, innocuous golf ball.” In the hypothetical, a golfer disregards the presence of his victim down the fairway as he tees his golf ball off in the victim‘s direction. According to Defendant, if the golf ball flies toward the victim and causes him to reasonably fear an immediate and violent injury, then the golfer has committed simple assault in violation of
Defendant‘s argument rests on a strained interpretation of
As for Defendant‘s proffered hypothetical, to our knowledge there is no case in which conduct remotely similar to that of Defendant‘s imagined golfer has been held by Georgia‘s high courts to constitute aggravated assault under
CONCLUSION
For the above reasons, we conclude that the elements of aggravated assault in violation of