United States v. Rede-Mendez

in AFFIRMED litigate part did not REVERSED and Because the HRC part. in retaliation, regarding issue any or decide give preclusive would not

Kentucky courts no-probable-eause de

effect to the HRC’s in retaliation subsequent

termination Yeoman, 983 S.W.2d at 465.

suit. See preclu for administrative prong

The third

sion under Elliott not satisfied. Accord in applying the district court erred

ingly, Herr preclusion to dismiss administrative America, UNITED STATES of § 1981retaliation claim.9 era’s Plaintiff-Appellee, urges McGee us to Although Churchill v. summary the merits of rule in its favor on REDE-MENDEZ, Andres

judgment disagree if we with the district Defendant-Appellant. preclusion holding, court’s we decline do No. 10-2509. merits of Herrera’s retaliation so. The in in- claim are best addressed the first Appeals, United States Court of by stance the district court. Sixth Circuit.

Argued: Sept. 2011. III. CONCLUSION May Decided and Filed: above, For the reasons stated we affirm grant

the district court’s of Churchill partial judgment

McGee’s motion for pleadings as to Herrera’s KCRA claim summary judgment

and motion for

to his 1981 race-discrimination claim. grant

We reverse the district court’s

summary judgment toas Herrera’s

retaliation claim and remand for further

proceedings opinion. consistent with this (claim argued preclusion), Mayor

9. Because Churchill McGee never be- with Dionne v. & Baltimore, appeal or on fore district court that Herr- City Council 40 F.3d 684- era's retaliation claim was barred claim (4th Cir.1994) (no preclusion) claim preclusion, possibili- we do not consider that Gjellum City Birmingham, 829 F.2d Although ty. preclusion purely claim is a (11th Cir.1987) 1064-65 & n. 21 legal sponte issue that we can address sua (same); Connell, see also Hitt v. circumstances,” "special Arizona (5th Cir.2002) (recognizing 247 & n. 3 392, 412, California, 530 U.S. 120 S.Ct. split suggesting preclu circuit that claim (2000), 147 L.Ed.2d 374 we do not do so here available). expressly sion is Elliott addressed require weigh because it would us first to only issue-preclusive agency effect of fact- split. ap- on a circuit The federal courts of Nelson, finding. (noting See 863 F.2d at peals split are as to whether unreviewed state preclusion”). ‍​​​‌​​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌‌‌​‌​‌‌​​‌‌​‌​‌​​‍that “Elliott dealt with issue claim-preclu- administrative decisions have matter, briefing Without the benefit of on this issue-preclusive sive as well as effect. Com- position we decline to stake out a in this pare Plough Cmty. v. West Des Moines Sch. debate. Dist., (8th Cir.1995) F.3d 515 n. 6 having re- the United States after been following aggra- moved a conviction for felony vated in violation of 8 U.S.C. 1326(a) (b)(2). § and Rede-Mendez chal- lenges the district court’s use of a sixteen- pursuant level enhancement to United (“U.S.S.G.”) Sentencing States Guidelines 2L1.2, contending § Manual that his (deadly for weapon) under New Mexico law did not meriting constitute a crime of violence enhancement. Because as- under New Mexico law not sault cate- gorically a crime of violence and the avail- Shepard able documents do not reveal what version of the offense Rede-Mendez committed, judgment we VACATE the the district court and REMAND for re- sentencing opinion. consistent with this Phelan, ARGUED: Lawrence J. Haeh- Phelan, Rapids, Michigan, nel & Grand for I. BACKGROUND Salan, Appellant. John F. Assistant Unit- Attorney, Rapids, ed States Grand Michi- April On Andres Rede-Mendez gan, Appellee. for ON BRIEF: Law- County, was arrested in Berrien Michigan Phelan, Phelan, rence J. Haehnel & Grand operating for under the influence and driv- Rapids, Michigan, Appellant. for John F. ing subsequent without a license. a Salan, Attorney, Assistant Immigration interview with and Customs Rapids, Miсhigan, Appellee. Grand for agents, Enforcement Rede-Mendez admit- ted that he had reentered United MOORE, GRIFFIN, Before: permission States without in 2007 after WHITE, Judges. Circuit having been removed to Mexico in 2003. The 2003 removal a followed conviction MOORE, J., opinion delivered the of the New Mexico state court for court, WHITE, J., joined. in which (deadly weapon) in violation of GRIFFIN, 560-68), (pp. J. delivered a 30-3-2(A). § New Mexico Statute Rede- separate dissenting opinion. Mendez was indicted on one count of reen- tering having the United States after been OPINION removed a conviction following ag- for an MOORE, KAREN NELSON Circuit gravated felony, in violation of 8 U.S.C. Judge. 1326(a) (b)(2).1 pleaded guilty He August

Defendant-Appellant Andres Rede- appeals thirty-six Mendez Investigation Report sentence The Presentence (“PSR”) 2L1.2, imprisonment reentering months of for utilized U.S.S.G. 1326(a) imprisonment twenty years 1. 8 crime of term U.S.C. describes the reentry unlawful of removed aliens and sets a aliens whose removal followed conviction for imprisonment years. maximum term of of two "aggravated felony.” 1326(b)(2) higher Section sets a maximum alien, that, deportable a he would not be for the eight level of offense a base sets certain rehabili- Entering advantage or Remain- able to take Unlawfully crime confined, for a provides States and while the district programs in the United tative ing if the defendant enhancement sentence imposed below-guidelines a sixteen-level court ... after a con- deported was “previously imprisonment. of 36 months of is ... a crime of felony viction for timely notice of Rede-Mendez filed 2L1.2(b)(l)(A)(ii). violence,” U.S.S.G. alleging pro- that his sentence was appeal, aggravat- that Rede-Mendez’s Concluding cedurally unreasonable due to the sixteen- a crime of constituted ed-assault conviction prior felony crime level enhancement for violence, applied PSR the sixteen-level the of violence. three levels increase. The PSR subtracted responsi- of acceptance for Rede-Mendez’s II. ANALYSIS history category of bility. a criminal With twenty-one, the an level of offense IV A. Crime Violence range was guidelines recommended requires This case us to de again imprisonment. months of of particular termine whether a criminal report, to the ar- objected Rede-Mendez by triggers fense an enhanced sentence convic- guing aggravated-assault that the violence, by now a as a crime of qualifying of violence. The was not a crime tion but no less difficult task. We common Rede-Mendez’s district court overruled novo a district court’s conclusion review de enhancement, applied the objections crime constitutes a crime of violence that a New Mexico statute’s concluding that the sentencing States v. purposes. United deadly weapon of the use of inclusion (6th Soto-Sanchez, 317, 623 F.3d 319 Cir. that the crime factor meant aggravating 2010). aggra- generiс fell within the definition The Notes to Application U.S.S.G. had the use or threat- vated assault and as cer § 2L1.2 define “crime of violence” force as an element. physical ened use of including “ag tain enumerated one departed also downward The court offenses— gravated “any assault”—and other offense however, level, re- history criminal federal, state, or local law that has range to 46-57 guidelines the duced use, use, attempted the as an element Reasoning that imprisonment. months of against force physical threatened use relatively offense was a Rede-Mendez’s 2L1.2, § another.” person the U.S.S.G. compared violence to other minor crime of n.l(B)(iii).2 are bound Although we designation and cmt. that also bear that crimes (the interpretation probative to an of U.S.S.G. § career offender 4B1.2 2. Guideline Vanhook, 16, guideline), § § and the Armed v. 640 18 U.S.C. 2L1.2. See United States Act, 924(e), 706, (6th Cir.2011) ("Given all 18 U.S.C. Career Criminal the 4 F.3d 712 n. "use, use, attempted threatenеd employ the similarity the ACCA’s definition between crime of physical force” definition of felony’ of ‘crime of and the definition 'violent felony, but also contain violence or violent guideline pertinent in the violence’ contained clauses, which include crimes that residual one, courts, including provision, this have physical carry risk that a "substantial interpreting authority position taken property of another generally persuasive when in- phrase one committing the of- in the course of be used other.”). analyzing tetpreting Cases fense,” potential or a "serious 18 U.S.C. clauses, contrast, perti- by are not residual another,” injury U.S.C. 18 risk of nent. 924(e)(2)(B); the ex- U.S.S.G. 4B1.2. To ap- Relatedly, Rede-Mendez the fact that interpreting provi- these other tent that cases challenge application of parently prong, they are does not analyze "element” sions 556 interpretation of state ed on the commission of a crime of vio

by a state сourt’s law, including McMurray, the elements of a lence. United States v. 653 criminal (6th Cir.2011) crime, of whether a F.3d (quoting the ultimate issue Unit Gibbs, question of violence is a crime is a crime ed States v. 626 F.3d Cir.2010)); Rodriguez, v. Shepard federal law. States see also United United (6th Cir.2011) States, 13, 16-17, (citing 544 U.S. 125 S.Ct. — (2005). States, U.S. -, prior Johnson v. United 161 L.Ed.2d 205 When (2010)). 1265, 1269, 176 L.Ed.2d 1 guilty plea, S.Ct. conviction resulted from a we identify look to documents that what facts determining the nature of a “ ” ‘necessarily the defendant admitted’ conviction, apply “categorical” we pleading guilty. States v. Medina- United looking statutory to the defini approach, (6th Cir.2009) Almaguer, 559 F.3d tion and not the particular of the offense (quoting Shepard, 544 at U.S. S.Ct. underlying Sykes facts the conviction. 1254). Such documents can include the — States, -, United U.S. 131 S.Ct. document, “charging plea agree written (2011) 2267, 2272, (quoting 180 L.Ed.2d 60 ment, transcript plea colloquy, any of States, 192, 202, James v. United 550 U.S. explicit finding by judge factual the trial to 1586, (2007)); 127 S.Ct. 167 L.Ed.2d 532 assented,” which the defendant Shepard, Soto-Sanchez, 623 F.3d at 320-21. Nor 16, 1254; not, 544 U.S. at 125 S.Ct. we do a specific automatically quali- does offense contrast, police rеports consider or fy just as a crime of violence it because has complaint applications, approach id. This the same name as one of the enumerated sentencing ensures that hearings do not States, Taylor offenses. v. United 495 23, become collateral trials. Id. at 125 575, 588-89, 2143, U.S. 109 S.Ct. S.Ct. 1254. (1990). Rather, L.Ed.2d 607 the offense for which the defendant was convicted Aggravated B. New Mexico Assault— fall generic must within the definition of Analysis Categorical crime, by surveying which is found how the crime jurisdic- is described across Prong 1. Enumerated-Offense tions, consulting as well as sources such as Mexico, In New aggravated assault 8, the Model Penal Code. Id. at 598 & n. (deadly weapon) “unlawfully is defined as 2143; McFalls, 110 S.Ct. assaulting striking ‍​​​‌​​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌‌‌​‌​‌‌​​‌‌​‌​‌​​‍or at another with a (6th Cir.2010). 30-3-2(A). deadly weapon.” § N.M. Stat. “(A)

If a state criminal statute could Assault inis turn defined as an at way be violated in a tempt battery would constitute to commit upon person (B) another; a crime of way act, violence and in a any that would of unlawful threаt or not, we beyond statutory look language menacing conduct which causes another and examine certain reasonably state-court documents believe that he is in (the documents”) “Shepard danger receiving battery; determine an immediate (C) whether necessarily the conviction depend- insulting language or the use of toward statutory sentence enhancement of 8 definition of "crime of violence” in 18 U.S.C. 1326(b)(2), 1101(a)(43)(F), § poten- § U.S.C. which § extends the see 8 U.S.C. that sec- reentry tial sentence for unlawful for defen- tion contains the broader residual clause not dants whose removal followed a conviction found in A crime 2L1.2. could thus be an "aggravated 1326(b)(2) felony,” necessarily aggravated for an felony purposes is not Although "aggravated felony” relevant. pur- is de- but not a crime of violence for 2L1.2 fined, part, by poses. in relevant reference to the government acknowledges, honor, delicacy or As impugning another aggrаvated definition of as New Mexico’s § 30-3-1. Id. reputation.” than the Model Penal sault “is broader Code, a defen- Penal the Model Under States based definition.” United Code if he or commits dant 20, 2011. The 28(j) Sept. Letter of Rule she version of New Mexico generic sig version most differs from the

(a) bodily in- serious attempts to cause rea it attaches to the nificantly in the mens another, inju- such or causes jury to injury. fear bodily injury or element knowingly, or reckless- ry purposely, or LaFave the Model Penal Code Unlike manifesting ly under circumstances definitions, does the New Mexico statute to the value extreme indifference injure or to require specific not intent to life, human See, e.g., State v. Ma frighten the victim. (1979), nus, (b) 597 P.2d purposely N.M. attempts to cause State, grounds, on other Sells v. overruled bodily injury to causes knowingly (1982); N.M. 653 P.2d 162 State v. deadly weapon[.] another with a Morales, 132 N.M. 45 P.3d 414- 211.1(2). have We Model Penal Code (2002). Instead, aggravated assault defini- Model Penal Code recognizеd the in requires general New Mexico criminal generic assault as tion of tent, wrongdo consists of “conscious deciding purpose definition for an act that purposeful doing or the ing label is a crime crime with that whether a the law declares to be a crime.” State violence, have in states which at least 1266, 1277 122 921 P.2d Campos, N.M. battery. (1996).3 assault and the crimes of merged n. 5 McFalls, Professor La- 592 F.3d at 717. aggravated New Mexico’s definition that, in jurisdictions explains Fave likewise generic assault is also broader than retain a distinct like New Mexico that can underlying assault version because injury fear of in which the crime of assault insulting lan- solely by using committed be conviction, “there must be is sufficient nor Neither the Model Penal Code guage. apprehension.” intention to cause repu- an actual recognize insult to honor LaFave LaFave, convic- R. Substantive Criminal the basis for an assault Wayne 2 tation as 2003). 16.3(b) (2d New Mexico definition tion.4 Because thе Law ed. Code, is express 4. Under the Model Penal Although contains no the statute element, guilty simple if he any New requirement as to rea mens ag consistently held that Mexico courts have (a) attempts purposely, know- to cause or general-intent crime. gravated assault is a bodily injury ingly recklessly causes Manus, See, (explaining at 284 e.g., 597 P.2d another; or act consti prove that the that the state must (b) injury negligently bodily to an- causes with a tuting aggravated assault "was done deadly weapon; other Bachicha, intent”); v. general criminal State (c) put attempts by physical an- menace (N.M.Ct.App. 808 P.2d 54 111 N.M. bodily in imminent serious other fear of 1991) ("Proof general intent criminal injury. offense of necessary 211.1(1). element of the also a LaFave does Penal Code Model Cruz, (citing insults, 86 spoken State assault.” but notes that not discuss 1974))). LaFave, (N.M.Ct.App. N.M. 525 P.2d do not constitute assault. threats 16.3(b) statutory any express without Criminal Law For crimes Substantive alone, any ("[Tjhreatening without to hоw state words requirement, we look mens rea . carry ... will not act to out the threat offense See overt have construed courts do.”). McFalls, F.3d at 716. assault is broader than the Not every crime becomes a crime of definition, violence when deadly Model Penal Code which we committed with a See, weapon, e.g., however. have as the recognized generic definition Baker, (6th Cir.2009) crime, F.3d we of that conclude Rede- (holding that Tennessee felonious reckless categorically Mendez’s conviction was not endangerment, requires the use of a a crime of violence enumerated- deadly weapon, was not a crime of vio- prong offense of U.S.S.G. 2L1.2.

lence). Similarly, not all involving crimes a deadly weapon have the threatened use Prong 2. “Element” physical force as an element. Id. In the context, The crime of violence broad definition of assault likewise “the phrase ‘physical force,” force’ any argument obstructs that New Mexico means violent John- son, 1270-71, 130 S.Ct. at (deadly weapon) quali and the use of a deadly weapon may transform a fies as crime of violence under the “ele lesser de- gree of force necessary into the prong. ment” Other “violent circuits have held Nonetheless, force.” the underlying that even a crime general-intent crime in already must have as an element clude the some threatened use of of, degree of, or the threat physical force as an element if it includes the use of a (such in the more general See, sense as “the deadly weapon as an e.g., element. touching”). least deadly The use of a Silva, United States v. Ramon 608 F.3d weapon may exacerbate (10th Cir.2010).5 phys- the threat of 670-71, 674 Most of force, ical but does not necessarily supply these cases deal with battery assault or the threat if it already present is not in the require only statutes that “the least touch underlying crimе.6 ing,” qualify but as crimes of violence when the touching is accompanied by a Although using weapon while deadly weapon. See United States v. attempting to commit a battery, N.M. Stat. Grajeda, Cir. (A), § 30-3-1 or while engaging an “un- 2009); United v. Dominguez, States act, lawful threat menacing conduct” Cir.2007); F.3d Ramon places that someone in fear of an imminent cf. Silva, (no 608 F.3d at 672 touch was neces battery, 30-3-l(B), id. may constitute sary using because a deadly weapon while the kind of crime that employs the threat- engaging in menacing places conduct that physical force, ened use of doing so while someone in fear of an battery imminent “us[ing] ... insulting language toward an- “creates a commensurate physi threat of honor, other impugning his delicacy or force”). cal reputation,” 30-3-l(C), id. does not.7 5. Ramon Silva addressed the same statute at residual clause in its definition of crime of panel supra issue here. A divided violence. See of the Tenth note 2. Circuit held "menacing the сonduct” 7.Although "insulting convictions under the prong aggravated-assault of the New Mexico language” prong of New Mexico’s assault statute was a crime of violence when commit- rare, appear quite statute to be and would deadly weapon, ted with a but did not address unconstitutional, perhaps be see State v. Par "insulting language" prong. the See 608 F.3d rillo, (N.M.Ct. 94 N.M. 607 P.2d (”[W]e at analysis 'appre- focus our App.1979), provision the part remains of the assault.”). causing’ aggravated hension New Mexico criminal code and thus available prosecutors to in that state. The likelihood 6. Even if the use of a weapon arguably that a defendant’s conviction was based on a carries with it a risk that particular version of the offense is not a factor used, be U.S.S.G. 2L1.2 does analysis. not include a in the crime of Shepard, violence believing in fact for the defendant a crime of a basis qualified as if the former Even charged offenses and that guilty the [siс] is- prong the element violence under —an for factual ba- independent an record such latter would not decide—the sue we do R.22-6 at 6. sis has been made.” not. presented author also the The PSR Shepard Documents C. by cause filed the probable statement of Shepard the officer, we look to Accordingly, Shepard prevents but arresting Rede- examining whether this docu to determine court from documents district necessarily rested on of the nature of a conviction ment as evidence Mendez’s application frighten complaint or on conviction. Like injure intent to act, threat, at 125 S.Ct. Shepard, in 544 U.S. an unlawful commission of (rather transcript the preliminary-examination simply than menacing conduct Medina-Almaguer, 559 F.3d at in The PSR au- insulting language). probable “gateway cause is statement with the court provided thor the district process” in the criminal that does not step information, judg- plea agreement, “necessarily what acts were ad establish proceedings. the New Mexico ment from by guilty plea, a later Medina- mitted” clarifica- provide do not These documents 559 F.3d at 423. Almaguer, tion, statutory they repeat simply are only additional details language; recognize that Rede-Mendez does We type victim and the the name of the aggravated-assault that his not contend charges The information weapon. was based on the use of insult- unlawfully assault or “did Nonetheless, Rede-Mendez categori- ing language. knife, at Jessica Grimes strike “only to consider approach requires cal us object or an instrument or deadly weapon necessarily admitted the de- the facts which, cause weapon, when used as a could in even if we are pleading guilty fendant contrary to very injury, death or serious ‘feign agnosticism clearly about forced ” (A 30-3-2(A) (1963) fourth NMSA 1978 McMurray, 653 F.3d at knowable facts.’ 34-35, at It does not degree felony).” R.22-5 at (quoting Shepard, 544 U.S. (O’Connor, J., stat- dissenting)). reveal to what section of the assault 125 S.Ct. 1254 or whether pleaded example, ute Rede-Mendez Shepard, The defendant in- necessarily pleaded guilty burglary, admitted to previously Rede-Mendez had in- In its under Massachusetts law could tentionally frightening the victim. vehicle, or a but agreement, breaking ship the state clude into a approval plea of the limited to generic the definition is that “there exists under simply trial court stated "insulting language” cannot be based on an example, mattered was not how "[w]hat pleaded guilty aggra- likely Shepard construing had it was that the elements assault. (or unlikely burglarizing buildings how it to DeMary, the New in State v. vated assault guilty burglarizing pleaded he that, was that had Supreme Mexico Court held “because vehicle[s]'), 'ship[s], but whether vesselfs] actually 30-3-2 uses the word as- Section produce government could evidence assault, saulting in its definition of 'necessarily showing ‍​​​‌​​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌‌‌​‌​‌‌​​‌‌​‌​‌​​‍Shepard admitted’ that necessary defi- to construe the it become brеaking buildings he into when entered 30-3-1, pursuant to Section nition of assault at pleas.” Medina-Almaguer, 559 F.3d N.M.S.A.1978,” proceeded each to list 16, (citing Shepard, at 125 S.Ct. 544 U.S. 30-3-1, including subsection subsection of 1254). (C), "insulting language” definition of as- Moreover, suggests although the dissent 1021, P.2d 99 N.M. sault. otherwise, courts have never New Mexico (1982). aggravated-assault held that an building gravated (deadly weapon) or structure. assault is not a breaking into 16-17, The triggers at 125 S.Ct. 1254. Su- crime violence that the sixteen- U.S. sentencing the sentence en- level enhancement of preme Court held that U.S.S.G. 2L1.2(b)(1)(A). because, improper was even Two of our sister cir hancement the fact that the defendant had cuits have held that though buildings deadly weapon into was essen- with a committed in viola actually broken 30-3-2(A) uncontested, tially complaint contained tion of N.M. Stat. has as an use, use, statutory language attempted the broader and no oth- element “the or threat er of physical per state-court document district ened use properly sug- qualifies court could have considered son of another” and therefore as a Id. at gested charge. sentencing a narrower 21- crime of violence for purposes. Silva, In order to avoid a See S.Ct. 608 F.3d 663 — case, (10th Cir.2010), denied U.S. -, cert. similar result in this the New Mexico (2011); pre- authorities could have drafted a more 131 S.Ct. 179 L.Ed.2d 313 Licon-Nunez, more detailed United States v. charge required cise 230 Fed. (5th Cir.2007). plea agreement. Appx. 448 I would follow the rationale of these courts and hold that any indication as to Without whether properly applied district court the en aggravated-assault Rede-Mendez’s convic- hancement in the present case. There tion fit the generic within definition or fore, procedur Rede-Mendez’s sentence is could have involved threatened use of ally reasonable and should be affirmed. force, physical we cannot conclude that Rede-Mendez committed a crimе of vio- I. sentencing lence. The enhancement was thus improper. In March Rede-Mendez robbed a Taos, shop coffee in Ranchos de New Mex- III. CONCLUSION ico, pointed armed with a knife that he at the store apprehended ap- clerk. He was Because the New Mexico of ag- offense later, proximately one month and a state gravated (deadly weapon) is broad- criminal complaint April was filed on er than the generic aggravat- definition of Mexico, County, the Taos New ed assault and can be committed in a way Magistrate complaint charged Court. The not does involve the use or threatened in pertinent part: Aggravated “Count force, and because the 2— unlawfully [Rede-Mendez] [d]id Shepard documents do not reveal what Assault — assault or strike at another to wit: Jessica version of the offense Rede-Mendez neces- clerk], Grimes store [the sarily committing admitted to when he knife, weapon to wit: а contrary to Section pleaded guilty, Rede-Mendez’s con- (Fourth 30-3-2A, Degree N.M.S.A.1978 viction does trigger not the crime of vio- Felony).” It was sworn to under oath lence enhancement U.S.S.G. officer, state police with a statement of Therefore, § 2L1.2. we VACATE the dis- cause probable affixed to it. judgment trict court’s and REMAND for resentencing consistent with opinion. this 2001, In May a four-count criminal infor- mation in Eighth was filed Judicial

GRIFFIN, Judge, dissenting. Circuit Taos, County District Court for the I respectfully disagree with the majori New Mexico. Count 2 of the information ty’s conclusion that defendant charged Rede-Men Rede-Mendez with as- prior dez’s ag (deadly New Mexico conviction for sault weapon) alleged that “on

561 March, 2001, Over Rede plea agreement. in a without day 10th about the Mexico, above- court objection, Mendez’s the district held County, New Taos unlawfully assault or did New Mexico conviction for that his 2001 named defendant knife, a a Grimes with at Jessica (deadly weapon) strike сonsti aggravated assault object or an instrument deadly weapon a “crime of violence” so as to war tuted cause which, weapon, could when used as a sentencing a sixteen-level enhance rant contrary to injury, very death or serious pursuant ment U.S.S.G. (1963) (A 30-3-2(A) § fourth N.M.S.A.1978 2L1.2(b)(1)(A)(ii). § Despite the enhance 2001, 11, Rede- felony).” July On degree ment, ultimately imposed the district court agreement and plea into a Mendez entered sentence of 36 months a below-Guidelines information. 2 of the guilty to Count pled imprisonment because Rede-Mendez plea agree- approved court The district alien and the court could deportable was and, plea, Rede-Mendez’s ment based on purposes not achieve the rehabilitative that “there exists a opinion in its stated sentencing. is believing the defendant basis in fact for that an charged and guilty of the offenses II. factual basis record for such independent July been made.” On has In to constitute a “crime of vio order eighteen court sentenced Rede-Mendez 2L1.2(b)(1)(A)(ii), § lence” under U.S.S.G. followed one of incarceration months qualify offense must Rede-Mendez’s the condi- parole, suspended upon year of the enumerated offenses—in this one custody in for a he was to remain tion that case, assault —“or ... ha[ve] allow the INS to de- thirty-day period to use, use, or attempted as an element the country of Mexico. native port him to his threatened of conviction reiterated judgment The § 2L1.2 of another.” U.S.S.G. and stands “is convicted Rede-Mendez (Nov. 2011) n.1(B)(iii) (emphasis add cmt. in charged crime as Count guilty of the ed). thus, disjunctive; This definition is of: AGGRA- Information of the Criminal felony is a crime of vio (DEADLY WEAP- VATED ASSAULT one of these criter lence if it meets either N.M.S.A.1978, § ON), 30-3- contrary to Garcia, Palomino ia.1 States v. United 2(A) (1963)(A felony).” degree fourth (11th Cir.2010); F.3d Unit illegal re deportation and Following his Rivera-Oros, ed States v. States, Rede-Mendez turn to the United Cir.2009). in by Michigan authorities was arrested Ashcrоft, In 543 U.S. Leocal the influence of operating (2004), the Su 160 L.Ed.2d 271 S.Ct. alcohol, flagged illegal charge definition of addressed the preme Court to his federal indictment status and led set forth 18 U.S.C. “crime of violence” illegal of an alien reentry one count of 16(a), § in all relevant identical for an following deportation 1326(a). language of the element conviction, respects § to the In felony 8 U.S.C. n.1(B)(iii),2 2L1.2, and de- prong of cmt. guilty to the offense August pled he 16(a), 924(e)(2)(B)(i)), 18 U.S.C. referred criterion is henceforth 1. The second n.l(B)(iii), prong.” to define "element 2L1.2 cmt. to as the U.S.S.G. violence,” felony” we and "crime of "violent language used in the light identical of the authority position that inter- "have taken the guide- career offender prongs element of the generally persuasive phrase preting one (U.S.S.G. 4B1.2(a)(1)), Armed Career line interpreting United States when the other.” (18 ("ACCA”) U.S.C. Act Criminal 562 physical “use of the court a phrase modified-categori-

termined that the [utilize employmеnt” indictment, “active and approach force” connotes cal consider the and] carry “a only to crimes that guilty thus refers plea, or similar documents to deter- degree negligence of intent than or higher they necessarily mine whether establish 9, Id. at 125 merely accidental conduct.” the nature of the prior conviction.” Id. In the wake of the Leocal deci States, S.Ct. 377. (citing Shepard v. 544 United U.S. sion, we, majority and the of our sister 13, 26, 1254, 125 161 L.Ed.2d 205 S.Ct. circuits, rationale and have extended its (2005), Gibbs, States v. United 626 requiring only held that crimes reckless (6th Cir.2010)). 344, F.3d “In plead- 352 a ness do not constitute crimes of violence or case, ed the documents must demonstrate prongs violent felonies under the element that ... plea necessarily rested on the 16(a), ACCA, § or 2L1.2. of See identifying fact a qualifying [crime 367, McMurray, United States v. 653 F.3d (citation Id. at 377 and internal offense].” (6th Cir.2011); v. 374-75 omitted). quotation types marks “[T]wo (6th McFalls, Cir.2010); 592 F.3d 716 proof ... might suffice to establish Baker, United States v. 559 F.3d plea ‘necessarily that a rested on the ele- (6th Portela, Cir.2009); States v. United (i) ments a predicate offense [are]: (6th Cir.2006); 469 F.3d see also proof that predi- the defendant admitted to Zuniga-Soto, States v. 527 F.3d United cate conduct when confirming the factual (10th Cir.2008) (and 1110, 1124 cases cited (ii) basis for a plea; proof valid [and] therein). the charge was narrowed to only include (citation predicate decision, conduct.” Id. at 378 subsequent In a Supreme omitted). quotation and internal marks degree Court addressed the necessary qualify force as a violent felo- The New Mexico statute at issue defines ny under the applied ACCA and Leocal’s “aggravated assault” with a weapon reasoning to that “the phrase ‘physi- hold “(A) as: unlawfully assaulting striking or cal force’ [under means violent ACCA] (B) at another with deadly weapon; com- is, force—that capable causing mitting by threatening menacing physical pain injury person.” to another mask, hood, another while wearing a robe — Stаtes, -, Johnson United U.S. face, covering upon or other head or 1265, 1271, (2010); S.Ct. 176 L.Ed.2d manner, body, or while disguised any so McMurray, see also 653 F.3d at 374. (C) as to identity; willfully conceal “In determining the nature of a prior intentionally assaulting another with intent conviction, we are to apply ‘categorical’ any felony.” to commit N.M. Stat. 30- approach, looking ‍​​​‌​​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌‌‌​‌​‌‌​​‌‌​‌​‌​​‍statutory to the defini- 3-2. An by use of a tion of the offense particular and not the deadly weapon requires only general crim- underlying facts the conviction.” McMur- Bachicha, inal intent. State v. 111 N.M. ray, 653 F.3d at 372 (citing Taylor v. 601, 808 P.2d (N.M.Ct.App.1991). States, 575, 600, United 495 U.S. 110 S.Ct. (1990)). 2143, 109 An L.Ed.2d 607 “If it is “assault” is further defined New “(A) possible to violate the statute in way attempt that Mexico statute as: to com- felony battery another; would constitute a mit a upon or crime [violent (B) not, way act, in a any violence] and that would unlawful menacing threat or Vanhook, (6th Cir.2011). 712 n. Cir. 653 F.3d 371 n. 2011); McMurray, see also United States v. legal common and sense would dic- person to As another which causes conduсt tate, recog- of Mexico courts do not danger he is in the New reasonably believe (C) the battery; or assault with a theory aggravated an immediate nize a of receiving toward another language arising from “the use of insulting deadly weapon of use honor, delicacy reputa- or impugn- his another impugning insulting language toward honor, Stat. 30-3-1. tion.” N.M. un- delicacy reputation” or ing (C) simple of New Mexico’s der Subsection have held that courts The New Mexico 30-3-l(C). statute, § assault assault with aggravated of the crime under either of may occur deadly weapon case, it clear from the present In the by attempted bat an assault two theories: that Rede- relevant state-court documents consistent with deadly weapon, with a tery N.M. Stat. 30- charged Mendez was under 3—1(A); in threaten by engaging or 30— 3-2(A). Regardless of whether the New deadly with a menacing conduct ing or aggravated by assault Mexico offense of victim to believe causes the weаpon which within the deadly weapon use of a fits she was about receive that he or assault,” “aggravated definition of generic causing” “apprehension battery —so-called prior conviction under Rede-Mendez’s assault, Silva, 608 F.3d at see aggravated 30-3-2(A) qualifies as a crime of vio- (B). § 30-3-1 Bachi with 669—consistent attempted under either the lence because Woods, 54; cha, State v. 808 P.2d at battery apprehension causing or theories (N.M.Ct.App. P.2d N.M. assault, it “has as an ele- of 1971); 79 N.M. Anaya, State use, use, attempted or threat- ment the (N.M.Ct.App.1968); N.M. 562-63 P.2d per- force ened use of (New Jury Instruc Mexico Uniform U.J.I. another,” as the Fifth and Tenth son of tions) 14-306.3 See also through have held in Licon-Nunez and Circuits Silva, (discussing the two F.3d at 669 Silva, respectively. Hammons, theories); States United cf. Licon-Nunez, the Fifth em- Circuit JB, 4321693, at 2010 WL No. CR 07-1164 to con- 2010) (also categorical approach (D.N.M. ployed discussing *20 Oct. clude that the defendant’s of New theories in the context the two deadly weap- of as Mexico’s similar offense was a crime of violence on under 30-3-2 family with a dead against a member sault Licon- prong. § 2L1.2’s element ly weapon). _ 2. The defendant’s conduct caused forth the elements U.J.I. 14-306 sets 3. N.M. (name victim) the defendant these two theories: to believe of of _'s (name guilty ag- was about to intrude you defendant of For to find the of victim) deadly weapon integrity personal safety by gravated bodily use of a or Count_], to_(name charged the state must touching applying [as or force of beyond your manner; a reason- prove rude, satisfaction victim) angry or in a insolent following elements of each of the able doubt person in cir- A the same 3. reasonable the crime: as_(name victim) would cumstances apply touch or defendant tried to 1. The belief; have had the same to_(name victim) by; AND rude, acted in a insolent 2. The defendant [_] The defendant used manner; angry a_(name weapon. The defendant used aр- intended to touch 3. The defendant _ (name object) object). is a A to_(name victim) by; ply force a_ you deadly weapon only if find that OR (name object), weapon, when used as a _ (describe defendant 1.The unlawful great bodily harm[.] cause death could conduct)', act, menacing threat or Nunez, Fed.Appx. require at 451. Because the former does not an actual touching, attempt offensively tracked the lan- the to Licon-Nunez’s indictment deadly touch a victim with 30-3-2(A),4 weapon a court construed guage of the combined with the intent to do the same of the requisite the elements offense as enough give to rise to a threatened “(1) at assaulting striking the unlawful reasoning use of force under the (2) deadly weap- the use of a another and Thus, Dominguez. Licon-Nunez’s con- on,” specifically re- with the first element by viction for use of tried to quiring that the defendant deadly weapon qualifies as a crime of force to the apply intended to touch or warranting violence a sentence enhance- rude, insolent, acting victim while in a ment under 2L1.2. angry (citing manner. Id. N.M. U.J.I. 14- 304). rejected The court Licon-Nunez’s Id. at 452.

argument require that the offense does not Silva, panel majority of the Tenth physi- an element the threatened Circuit reached a similar conclusion with by be cal force because it can committed 30-3-2(A), regard holding that the touching than means of offensive rather “apprehen- defendant’s conviction for application the of force: causing” aggravated sion assault with a deadly weapon qualified as a “violent felo- recently We have held that the offensive Silva, ny” under the ACCA. 608 F.3d at touching deadly of an individual with a underlying 670. The New Mexico indict- weapon creates a sufficient threat of alleged ment unlawfully that Silva “did qualify force to as a crime of violence. victim], assault or strike at with a [the Dominguez, [.United States v.] firearm, deadly weapon.” which was a Id. (5th Cir.2007) [345, In Dominguez, ]. (сitation omitted). at 669 n. 3 Silva en- the Court considered whether the Flori- plea tered a of no charge contest to the da offense aggravated battery by use pursuant plea agreement. to a written Id. deadly weapon, of a which can be com- At his sentencing charges on federal touching mitted via the intentional of a possession of a firearm after conviction of victim a deadly weapon, with was a felony, imposed district court crime of The violence. Court deter- fifteen-year mandatory ACCA’s minimum though mined that even an intentional sentence enhancement finding based its touching deadly weapon might with a that assault conviction had injury, required not itself cause as for an as an element the use or threatened use of force, actual use of “it could lead to and, therefore, physical force qualified as a contact, more violent or could at least felony. violent The Tenth Circuit affirmed put the viсtim on notice of possibility the district court’s decision. weapon will be used more future, harshly in thereby constitut- The Silva court characterized the crime ing a threatened use of force.” Id. at “apprehension causing” aggravated as- 349. We think the same sault, be said of ‘“requires proof [the] the New Mexico crime of defendant engaged threatened or in me- assault by use of a weapon. nacing conduct with a deadly weapon to- victim, While the New Mexico crime differs ward a causing the victim to believe from the crime in Dominguez because he or she in danger was about be charged 4. The gree felony contrary indictment that Licon-Nunez to Section 30-3-2A Esparza "did assault or strike at Cesar NMSA 1978.” Id. at 451. knife, deadly weapon, to wit: a a fourth de- ” requirement use al intent crime and lacks as a battery/ immediate receiving an specific intent to induce general of the defendant’s weapon, proof aof victim, satisfy Bachi- in it did not the (quoting 670 fear the intent. Id. at criminal 54).5 Considering prong. these Id. at 673-74. cha, ACCA’s element P.2d at 808 argued Supreme held that Silva that the Specifically, the court together, elements 30-3-2(A) force: the Tenth active violent decision in Leocal and § involves Court’s Zuniga-Soto imposed decision in Circuit’s aggravated as- causing”

“[A]pprehension only that requirements the additional as an ele- in Mexico includes sault New conduct, not involving crimes intentional capa- use of “force ment the threatened recklessness, can as violent merely qualify injury to pain or causing physical ble Johnson, prong felonies under the element 130 See person.” another However, Id. at 672. acknowl- Threatening engaging ACCA. at 1271. S.Ct. victim, edging only encompasses a that the ACCA conduct toward menacing in conduct, producing the Silva court none- weapon capable intentional harm, bodily appre- threatens the commission of great death or theless held that causing aggravated force” because in New the use of “violent hension assault act, aggressor committing proof such an that the defendant requires Mexico victim that he will to his “intentionally,” recklessly communicates acted not “violent force” potentially use negligently: in the near-future. Addition- the victim [Tjhis plea ... argument ignores Silva’s causing” aggravated ally, “apprehension assault, aggravated of no contest to “violent threatens the use of assault was an admission of intentional which conduct proscribed force” because “Apprehension causing” ag conduct. lead to “vio- potential has the always gen gravated requires proof force.” lent intent, eral criminal which New Mexico

Id. at 670-71. consistently have “defined as con courts for its support The Silva court drew wrongdoing purposeful or the do scious cases, including a line of conclusion from ing of an act that the law declares to be Licon-Nunеz, have held that analo- Campos, crime.” N.M. [122 State of violence gous constitute crimes offenses (N.M. 1266, 148, 921 P.2d 1277 n. 5 prong element under 1996) Silva concedes as much ].... (dis- 2L1.2(b)(l)(A)(ii). id. at 671-72 See prose when he states that in a his brief Licon-Nunez, Dominguez, and cussing causing” aggra for “apprehension cution Treto-Martinez, 421 F.3d assault, vated New Mexico’s Uniform Cir.2005)). Indeed, the court 1156 in Jury general Instruction for criminal “the that Licon-Nunez involved noted requires jury beyond tent to find was under which Silva same subsection that “the defendant reasonable doubt convicted.” Id. at 672. he committed intentionally acted when addition, crime.” N.M. 14-141. That court held that U.J.I. the Silva 30-3-2(A) require assault does not the mens rea re- satisfied intent to assault the proof specific of a rejected argument It Silva’s quirement. Manus, 95, victim, State v. N.M. gener- [93 is a that because agreement the New Mexico indictment tracked Although plea 5. Silva’s state-court 30-3-2(A), language statutory and Silva’s the record describe the assault and did not sentеncing challenge upon focusing centered this theo- plea colloquy, in contain the did not ry. theory, noted Id. at 669 n. analysis this the court its on (N.M.1979) ], Thus, 30-3-2(A), overruled P.2d Silva could not State, grounds by other Sells v. N.M. [98 have been merely convicted for reckless (N.M.1982) ][,] 653 P.2d Hammons, behavior. See also 2010 WL specific injure ... or of a “intent [ ] at *20-21 (citing Silva and hold- victim, frighten” even State v. Mor- ing the defendant’s ales, N.M. P.3d [132 under a similar but not identical New Mex- (2002)], only confirms that ico aggravated assault statute on statute — crime, specific assault is not a intent but family a using deadly weapon member a general rather is a intent crime. The 30-3-13(A)(2) a violent fel- —constituted presence or absence of an element of ony under prong the element of the specific dispositively intent does not de- ACCA). United States v. Romo-Villa- Cf. termine a prior qual- whether lobos, (11th Cir.2012) 674 F.3d felony ifies as violent under the ACCA. (holding that the defendant’s Florida engaging Because Silva admitted to in resisting conviction for an officer with vio- constituting conduct the threatened use lence was a crime of violence under force, of physical engag- and admitted to 2L1.2(b)(l)(A)(ii) because the use of in that ing intentionally, ag- conduct more than de physical minimis force or gravated qualifies assault conviction as a violence necessary was a element of the felony. violent offense and general “Florida’s intent

[*] * * crimes plainly require something more [Ajpprehension-causing aggravated as- recklessness”); than United States v. requires proof sault of more than the (4th King, Cir.2012) 673 F.3d 279-80 display dexterity handling of in a weap- (holding that the defendant’s South Car- on; requires proof the crime that a de- olina conviction for pointing present- purposefully fendant threatened or en- ing a firearm required that the offender gaged in menacing conduct toward a point, present, or show the firearm at an- victim, with a weapon capable produc- of other in a threatening mannеr and there- ing great bodily death or harm. See qualifies fore as a crime of violence under Bachicha, 808 at P.2d 54. We conclude 4B1.2(a)(l)); U.S.S.G. United States v. this intentional conduct threatens Luna, (1st Cir.2011) 649 F.3d the physical use of force against the (holding that the version of a Massachu- another, person of quali- and therefore robbery setts armed statute involving felony fies as a violent under the ACCA. threatening gestures words or has as an (citations Id. at 673-74 quota- and internal element the threat physical of violent force omitted).6 tion marks necessary satisfy the definition of “vio- concluding, In expressly so very court de- different from the one we face here: expand holding: clined to further Leocal's offenses, whether state DUI "which either The dissent ag- would conclude that Silva's do component not have a mens rea or re- gravated assault conviction is not a violent quire only showing negligence in the felony, and would extend Leocál and Zuni- vehicle,” operation of a have as an element ga-Soto to conclude that crimes have an as physical against use of person force element physical the "threatened another, 543 U.S. at 125 S.Ct. 377. force only of another” if issue, resolving the Court made clear they proscribe performed "conduct with that it attempted not deal ... with an "d[id] [Silva, intent to induce fear.” 608 F.3d at 8-9, or threatened use of force.” Id. at (Hartz, J., dissenting)]. But Leocál (emphasis ‍​​​‌​​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌‌‌​‌​‌‌​​‌‌​‌​‌​​‍original). S.Ct. 377 definitively cannot be read supporting as Silva, 608 F.3d at 673-74. that extension. That case resolved an issue ACCA); with the insufficient mens rea committed under the United felony” lent Melchor-Meceno, mere recklessness. Whether Rede- States Cir.2010) (holding that Colorado Mendez committed this offense under menacing categorically statute “is felony attempted battery theory apprehen- or the prong under the element crime of violence causing theory sion nature of the § 2L1.2. The courts, of U.S.S.G. by the Mexico rеcognized New category ... is in the required requirement result is the same—the crimes, penalizes it violent active because intent, general combined with the affirma- bodily injury, rather imminent serious deadly weapon, tive use of a renders the minimal, touching, and than non-violent New Mexico crime of .assault involves a threat necessarily 30-3-2(A) deadly weapon safety. Fur safety, general rather than sufficiently active qualify and violent to thermore, offense of menac predicate a crime of violence. crime, includes the ing, general intent contrary majority’s The conclusion rests rea of intent for a crime of requisite mens assumption on the flawed that Rede-Men- to requires It the defendant violence. prior dez’s conviction have been based another fear knowingly place “insulting language on the use of toward harm.”); bodily an imminent serious Unit honor, delicacy another impugning Pulliam, 784, 788 v. 566 F.3d ed States (C) reputation” under Subsection of the Cir.2009) (“It saying that goes without 30-3-l(C), statute, § simple assault weapon before displaying operational satisfy requirements would not of Leo- manner angry threatening in an another majority cal or The acknowl- Johnson. violation of Missouri’s crime of unlawful [in edges that “Rede-Mendez does not con- qualifies as threatened weapon] use of a aggravated-assault tend that his conviction against per another lan- insulting was based on the use of son.”). guage,” but nonetheless holds that under and Silva decisions The Licon-Nunez categorical approach, any “[without very authority support- provide persuasive indication as to whether Rede-Mendez’s application court’s ing the district ... aggravated-assault conviction could present in the sixteen-level enhancement of physi- have involved the threatened use case on the basis that a force, cal we cannot conclude that Rede- 30-3-2(A) categorically Stat. under N.M. committed a crime of violence.” Mendez under the element a “crime of violence” However, majority further ac as the § our court has prong Although 2L1.2. knowledges, “we are bound a state yet general whether such a not addressed law, interpretation court’s of state criminal requisite includes the mens intent crime including (citing the elements of a crime[.]” a crime of rea of intent to be deemed Rodriguez, I felony, persuaded or violent am violence (6th Cir.2011)). I have detailed As reasoning Fifth and Tenth by the Circuits’ above, recognize the New Mexico courts 30-3-2(A). to N.M. Stat. regard with only two theories of assault— language “assaulting or By plain its — (B) (A) conforming to subsections deadly weap- striking at another with Thus, majority’s suggested (A) 30-3-1. in- unambiguously on”—Subsection use, pled guilty that Rede-Mendez possibility element “the cludes as an inherent “insulting assault under the use, physi- or threatened use of attempted 30-3-1(C) no theory of has language” person” pre- another cal force By pleading in New Mexico law. the crime was basis possibility cludes assault with a guilty 30-3-2(A),

weapon under Rede-Men- the element

dez’s conviction satisfied n.l(B)(iii) § 2L1.2 cmt. so as to

prong of imposition

validate the district court’s sentencing enhancement.

the sixteen-level

III. reasons,

For these I would affirm and respectfully

therefore dissent. RODRIGUEZ,

Andrew Plaintiff-

Appellant, CORPORATION, a Michi

STRYKER

gan Corporation; Stryker Sales Cor

poration, Michigan Corporation, De

fendants-Appellees.

No. 11-5335. Appeals, Court

Sixth Circuit.

Argued: April 2012. May

Decided and Filed: 2012.

Rehearing Rehearing En Banc July

Denied

Case Details

Case Name: United States v. Rede-Mendez

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 21, 2012

Citation: 680 F.3d 552

Docket Number: 10-2509

Court Abbreviation: 6th Cir.