KAREN NELSON MOORE, Circuit Judge.
Defendant-Appellant Andres Rede-Mendez appeals his sentence of thirty-six months of imprisonment for reentering the United States after having been removed following a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). Rede-Mendez challenges the district court's use of a sixteen-level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") Manual § 2L1.2, contending that his prior conviction for aggravated assault (deadly weapon) under New Mexico law did not constitute a crime of violence meriting the enhancement. Because aggravated assault under New Mexico law is not categorically a crime of violence and the available Shepard documents do not reveal what version of the offense Rede-Mendez committed, we VACATE the judgment of the district court and REMAND for resentencing consistent with this opinion.
On April 14, 2010, Andres Rede-Mendez was arrested in Berrien County, Michigan for operating under the influence and driving without a license. In a subsequent interview with Immigration and Customs Enforcement agents, Rede-Mendez admitted that he had reentered the United States without permission in 2007 after having been removed to Mexico in 2003. The 2003 removal followed a conviction in New Mexico state court for aggravated assault (deadly weapon) in violation of New Mexico Statute § 30-3-2(A). Rede-Mendez was indicted on one count of reentering the United States after having been removed following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Presentence Investigation Report ("PSR") utilized U.S.S.G. § 2L1.2, which
Rede-Mendez objected to the report, arguing that the aggravated-assault conviction was not a crime of violence. The district court overruled Rede-Mendez's objections and applied the enhancement, concluding that the New Mexico statute's inclusion of the use of a deadly weapon as an aggravating factor meant that the crime fell within the generic definition of aggravated assault and had the use or threatened use of physical force as an element. The court also departed downward one criminal history level, however, which reduced the guidelines range to 46-57 months of imprisonment. Reasoning that Rede-Mendez's offense was a relatively minor crime of violence compared to other crimes that also bear that designation and that, as a deportable alien, he would not be able to take advantage of certain rehabilitative programs while confined, the district court imposed a below-guidelines sentence of 36 months of imprisonment.
Rede-Mendez filed a timely notice of appeal, alleging that his sentence was procedurally unreasonable due to the sixteen-level enhancement for a prior felony crime of violence.
This case again requires us to determine whether a particular criminal offense triggers an enhanced sentence by qualifying as a crime of violence, by now a common but no less difficult task. We review de novo a district court's conclusion that a crime constitutes a crime of violence for sentencing purposes. United States v. Soto-Sanchez, 623 F.3d 317, 319 (6th Cir. 2010).
The Application Notes to U.S.S.G. § 2L1.2 define "crime of violence" as certain enumerated offenses—including "aggravated assault"—and "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, cmt. n.1(B)(iii).
In determining the nature of a prior conviction, we apply a "categorical" approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction. Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)); Soto-Sanchez, 623 F.3d at 320-21. Nor does a specific offense automatically qualify as a crime of violence just because it has the same name as one of the enumerated offenses. Taylor v. United States, 495 U.S. 575, 588-89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Rather, the offense for which the defendant was convicted must fall within the generic definition of that crime, which is found by surveying how the crime is described across jurisdictions, as well as consulting sources such as the Model Penal Code. Id. at 598 & n. 8, 110 S.Ct. 2143; United States v. McFalls, 592 F.3d 707, 716-17 (6th Cir.2010).
If a state criminal statute could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine certain state-court documents (the "Shepard documents") to determine whether the conviction necessarily depended on the commission of a crime of violence. United States v. McMurray, 653 F.3d 367, 372 (6th Cir.2011) (quoting United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010)); see also Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). When the prior conviction resulted from a guilty plea, we look to documents that identify what facts the defendant "`necessarily admitted'" by pleading guilty. United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir.2009) (quoting Shepard, 544 U.S. at 16, 125 S.Ct. 1254). Such documents can include the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented," Shepard, 544 U.S. at 16, 125 S.Ct. 1254; we do not, by contrast, consider police reports or complaint applications, id. This approach ensures that sentencing hearings do not become collateral trials. Id. at 23, 125 S.Ct. 1254.
In New Mexico, aggravated assault (deadly weapon) is defined as "unlawfully assaulting or striking at another with a deadly weapon." N.M. Stat. § 30-3-2(A). Assault is in turn defined as "(A) an attempt to commit a battery upon the person of another; (B) any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or (C) the use of insulting language toward
Under the Model Penal Code, a defendant commits aggravated assault if he or she
Model Penal Code § 211.1(2). We have recognized the Model Penal Code definition of aggravated assault as the generic definition for the purpose of deciding whether a crime with that label is a crime of violence, at least in states which have merged the crimes of assault and battery. McFalls, 592 F.3d at 717. Professor LaFave likewise explains that, in jurisdictions like New Mexico that retain a distinct crime of assault in which the fear of injury is sufficient for conviction, "there must be an actual intention to cause apprehension." 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) (2d ed. 2003).
As the government acknowledges, New Mexico's definition of aggravated assault "is broader than the Model Penal Code based definition." United States Rule 28(j) Letter of Sept. 20, 2011. The New Mexico version of aggravated assault differs from the generic version most significantly in the mens rea it attaches to the element of bodily injury or fear of injury. Unlike the Model Penal Code or LaFave definitions, the New Mexico statute does not require specific intent to injure or to frighten the victim. See, e.g., State v. Manus, 93 N.M. 95, 597 P.2d 280, 284 (1979), overruled on other grounds, Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982); State v. Morales, 132 N.M. 146, 45 P.3d 406, 414-15 (2002). Instead, aggravated assault in New Mexico requires general criminal intent, which consists of "conscious wrongdoing or the purposeful doing of an act that the law declares to be a crime." State v. Campos, 122 N.M. 148, 921 P.2d 1266, 1277 n. 5 (1996).
New Mexico's definition of aggravated assault is also broader than the generic version because the underlying assault can be committed solely by using insulting language. Neither the Model Penal Code nor LaFave recognize insult to honor or reputation as the basis for an assault conviction.
The broad definition of assault likewise obstructs any argument that New Mexico aggravated assault (deadly weapon) qualifies as a crime of violence under the "element" prong. Other circuits have held that even a general-intent crime may include the threatened use of physical force as an element if it includes the use of a deadly weapon as an element. See, e.g., United States v. Ramon-Silva, 608 F.3d 663, 670-71, 674 (10th Cir.2010).
Not every crime becomes a crime of violence when committed with a deadly weapon, however. See, e.g., United States v. Baker, 559 F.3d 443, 452 (6th Cir.2009) (holding that Tennessee felonious reckless endangerment, which requires the use of a deadly weapon, was not a crime of violence). Similarly, not all crimes involving a deadly weapon have the threatened use of physical force as an element. Id. In the crime of violence context, "the phrase `physical force' means violent force," Johnson, 130 S.Ct. at 1270-71, and the use of a deadly weapon may transform a lesser degree of force into the necessary "violent force." Nonetheless, the underlying crime must already have as an element some degree of, or the threat of, physical force in the more general sense (such as "the least touching"). The use of a deadly weapon may exacerbate the threat of physical force, but does not necessarily supply the threat if it is not already present in the underlying crime.
Although using a deadly weapon while attempting to commit a battery, N.M. Stat. § 30-3-1(A), or while engaging in an "unlawful act, threat or menacing conduct" that places someone in fear of an imminent battery, id. § 30-3-1(B), may constitute the kind of crime that employs the threatened use of physical force, doing so while "us[ing] ... insulting language toward another impugning his honor, delicacy or reputation," id. § 30-3-1(C), does not.
Accordingly, we look to the Shepard documents to determine whether Rede-Mendez's conviction necessarily rested on an intent to injure or frighten or on the commission of an unlawful act, threat, or menacing conduct (rather than simply the use of insulting language). The PSR author provided the district court with the information, plea agreement, and judgment from the New Mexico proceedings. These documents do not provide clarification, as they simply repeat the statutory language; the only additional details are the name of the victim and the type of weapon. The information charges that Rede-Mendez "did unlawfully assault or strike at Jessica Grimes with a knife, a deadly weapon or an instrument or object which, when used as a weapon, could cause death or very serious injury, contrary to NMSA 1978 § 30-3-2(A) (1963) (A fourth degree felony)." R.22-5 at 3. It does not reveal to what section of the assault statute Rede-Mendez pleaded or whether Rede-Mendez necessarily admitted to intentionally frightening the victim. In its approval of the plea agreement, the state trial court stated simply that "there exists a basis in fact for believing the defendant is guilty the [sic] offenses charged and that an independent record for such factual basis has been made." R.22-6 at 6.
The PSR author also presented the statement of probable cause filed by the arresting officer, but Shepard prevents the district court from examining this document as evidence of the nature of a prior conviction. Like the complaint application in Shepard, 544 U.S. at 16, 125 S.Ct. 1254, and the preliminary-examination transcript in Medina-Almaguer, 559 F.3d at 423, a statement of probable cause is a "gateway step in the criminal process" that does not establish what acts were "necessarily admitted" by a later guilty plea, Medina-Almaguer, 559 F.3d at 423.
We recognize that Rede-Mendez does not contend that his aggravated-assault conviction was based on the use of insulting language. Nonetheless, the categorical approach requires us to consider "only the facts necessarily admitted by the defendant in pleading guilty even if we are forced to `feign agnosticism about clearly knowable facts.'" McMurray, 653 F.3d at 381 (quoting Shepard, 544 U.S. at 34-35, 125 S.Ct. 1254 (O'Connor, J., dissenting)). The defendant in Shepard, for example, had previously pleaded guilty to burglary, which under Massachusetts law could include breaking into a ship or a vehicle, but under the generic definition is limited to
Without any indication as to whether Rede-Mendez's aggravated-assault conviction fit within the generic definition or could have involved the threatened use of physical force, we cannot conclude that Rede-Mendez committed a crime of violence. The sentencing enhancement was thus improper.
Because the New Mexico offense of aggravated assault (deadly weapon) is broader than the generic definition of aggravated assault and can be committed in a way that does not involve the use or threatened use of physical force, and because the Shepard documents do not reveal what version of the offense Rede-Mendez necessarily admitted to committing when he pleaded guilty, Rede-Mendez's prior conviction does not trigger the crime of violence enhancement under U.S.S.G. § 2L1.2. Therefore, we VACATE the district court's judgment and REMAND for resentencing consistent with this opinion.
GRIFFIN, Circuit Judge, dissenting.
I respectfully disagree with the majority's conclusion that defendant Rede-Mendez's prior New Mexico conviction for aggravated assault (deadly weapon) is not a crime of violence that triggers the sixteen-level sentencing enhancement of U.S.S.G. § 2L1.2(b)(1)(A). Two of our sister circuits have held that aggravated assault with a deadly weapon committed in violation of N.M. Stat. § 30-3-2(A) has as an element "the use, attempted use, or threatened use of physical force against the person of another" and therefore qualifies as a crime of violence for sentencing purposes. See United States v. Silva, 608 F.3d 663 (10th Cir.2010), cert. denied ___ U.S. ___, 131 S.Ct. 1473, 179 L.Ed.2d 313 (2011); United States v. Licon-Nunez, 230 Fed. Appx. 448 (5th Cir.2007). I would follow the rationale of these courts and hold that the district court properly applied the enhancement in the present case. Therefore, Rede-Mendez's sentence is procedurally reasonable and should be affirmed.
In March 2001, Rede-Mendez robbed a coffee shop in Ranchos de Taos, New Mexico, armed with a knife that he pointed at the store clerk. He was apprehended approximately one month later, and a state criminal complaint was filed on April 17, 2001, in the Taos County, New Mexico, Magistrate Court. The complaint charged in pertinent part: "Count 2—Aggravated Assault—[Rede-Mendez] [d]id unlawfully assault or strike at another to wit: Jessica Grimes [the store clerk], with a deadly weapon to wit: a knife, contrary to Section 30-3-2A, N.M.S.A.1978 (Fourth Degree Felony)." It was sworn to under oath by a state police officer, with a statement of probable cause affixed to it.
In May 2001, a four-count criminal information was filed in the Eighth Judicial District Court for the County of Taos, New Mexico. Count 2 of the information charged Rede-Mendez with aggravated assault (deadly weapon) and alleged that "on
Following his deportation and illegal return to the United States, Rede-Mendez was arrested by Michigan authorities in 2010 for operating under the influence of alcohol, a charge that flagged his illegal status and led to his federal indictment on one count of reentry of an illegal alien following deportation for an aggravated felony conviction, 8 U.S.C. § 1326(a). In August 2010, he pled guilty to the offense without a plea agreement. Over Rede-Mendez's objection, the district court held that his 2001 New Mexico conviction for aggravated assault (deadly weapon) constituted a "crime of violence" so as to warrant a sixteen-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Despite the enhancement, the district court ultimately imposed a below-Guidelines sentence of 36 months of imprisonment because Rede-Mendez was a deportable alien and the court could not achieve the rehabilitative purposes of sentencing.
In order to constitute a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Rede-Mendez's offense must qualify as one of the enumerated offenses—in this case, aggravated assault—"or ... ha[ve] 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.1(B)(iii) (Nov. 2011) (emphasis added). This definition is disjunctive; thus, a prior felony conviction is a crime of violence if it meets either one of these criteria.
In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court addressed the definition of "crime of violence" set forth in 18 U.S.C. § 16(a), which is identical in all relevant respects to the language of the element prong of § 2L1.2, cmt. n.1(B)(iii),
In a subsequent decision, the Supreme Court addressed the degree of physical force necessary to qualify as a violent felony under the ACCA and applied Leocal's reasoning to hold that "the phrase `physical force' [under the ACCA] means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010); see also McMurray, 653 F.3d at 374.
"In determining the nature of a prior conviction, we are to apply a `categorical' approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction." McMurray, 653 F.3d at 372 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). "If it is possible to violate the statute in a way that would constitute a [violent felony or crime of violence] and in a way that would not, the court may [utilize a modified-categorical approach and] consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction." Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010)). "In a pleaded case, the documents must demonstrate that the plea ... necessarily rested on the fact identifying the [crime as a qualifying offense]." Id. at 377 (citation and internal quotation marks omitted). "[T]wo types of proof ... that might suffice to establish that a plea `necessarily rested on the elements of a predicate offense [are]: (i) proof that the defendant admitted to predicate conduct when confirming the factual basis for a valid plea; [and] (ii) proof that the charge was narrowed to include only predicate conduct." Id. at 378 (citation and internal quotation marks omitted).
The New Mexico statute at issue defines "aggravated assault" with a deadly weapon as: "(A) unlawfully assaulting or striking at another with a deadly weapon; (B) committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity; or (C) willfully and intentionally assaulting another with intent to commit any felony." N.M. Stat. § 30-3-2. An aggravated assault by use of a deadly weapon requires only general criminal intent. State v. Bachicha, 111 N.M. 601, 808 P.2d 51, 54 (N.M.Ct.App.1991).
An "assault" is further defined by New Mexico statute as: "(A) an attempt to commit a battery upon the person of another; (B) any unlawful act, threat or menacing
The New Mexico courts have held that the crime of aggravated assault with a deadly weapon may occur under either of two theories: an assault by attempted battery with a deadly weapon, consistent with § 30-3-1(A); or by engaging in threatening or menacing conduct with a deadly weapon which causes the victim to believe that he or she was about to receive a battery—so-called "apprehension causing" aggravated assault, see Silva, 608 F.3d at 669—consistent with § 30-3-1(B). Bachicha, 808 P.2d at 54; State v. Woods, 82 N.M. 449, 483 P.2d 504, 505 (N.M.Ct.App. 1971); State v. Anaya, 79 N.M. 43, 439 P.2d 561, 562-63 (N.M.Ct.App.1968); N.M. U.J.I. (New Mexico Uniform Jury Instructions) 14-304 through 14-306.
As common and legal sense would dictate, the New Mexico courts do not recognize a theory of aggravated assault with a deadly weapon arising from "the use of insulting language toward another impugning his honor, delicacy or reputation" under Subsection (C) of New Mexico's simple assault statute, § 30-3-1(C).
In the present case, it is clear from the relevant state-court documents that Rede-Mendez was charged under N.M. Stat. 30-3-2(A). Regardless of whether the New Mexico offense of aggravated assault by use of a deadly weapon fits within the generic definition of "aggravated assault," Rede-Mendez's prior conviction under § 30-3-2(A) qualifies as a crime of violence because under either the attempted battery or apprehension causing theories of aggravated assault, it "has as an element the use, attempted use, or threatened use of physical force against the person of another," as the Fifth and Tenth Circuits have held in Licon-Nunez and Silva, respectively.
In Licon-Nunez, the Fifth Circuit employed the categorical approach to conclude that the defendant's prior conviction for aggravated assault with a deadly weapon under § 30-3-2 was a crime of violence under § 2L1.2's element prong. Licon-Nunez,
Id. at 452.
In Silva, a panel majority of the Tenth Circuit reached a similar conclusion with regard to § 30-3-2(A), holding that the defendant's prior conviction for "apprehension causing" aggravated assault with a deadly weapon qualified as a "violent felony" under the ACCA. Silva, 608 F.3d at 670. The underlying New Mexico indictment alleged that Silva "did unlawfully assault or strike at [the victim], with a firearm, which was a deadly weapon." Id. at 669 n. 3 (citation omitted). Silva entered a plea of no contest to the charge pursuant to a written plea agreement. Id. At his sentencing on federal charges of possession of a firearm after conviction of a felony, the district court imposed the ACCA's fifteen-year mandatory minimum sentence enhancement based on its finding that the aggravated assault conviction had as an element the use or threatened use of physical force and, therefore, qualified as a violent felony. The Tenth Circuit affirmed the district court's decision.
The Silva court characterized the crime as "apprehension causing" aggravated assault, which "`requires proof that [the] defendant threatened or engaged in menacing conduct with a deadly weapon toward a victim, causing the victim to believe he or she was about to be in danger of
Id. at 670-71.
The Silva court drew support for its conclusion from a line of cases, including Licon-Nunez, which have held that analogous offenses constitute crimes of violence under the element prong of § 2L1.2(b)(1)(A)(ii). See id. at 671-72 (discussing Licon-Nunez, Dominguez, and United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir.2005)). Indeed, the court noted that Licon-Nunez involved "the same subsection under which Silva was convicted." Id. at 672.
In addition, the Silva court held that § 30-3-2(A) satisfied the mens rea requirement. It rejected Silva's argument that because aggravated assault is a general intent crime and lacks as a requirement the defendant's specific intent to induce fear in the victim, it did not satisfy the ACCA's element prong. Id. at 673-74. Specifically, Silva argued that the Supreme Court's decision in Leocal and the Tenth Circuit's decision in Zuniga-Soto imposed the additional requirements that only crimes involving intentional conduct, not merely recklessness, can qualify as violent felonies under the element prong of the ACCA. Id. at 672. However, acknowledging that the ACCA only encompasses intentional conduct, the Silva court nonetheless held that the commission of apprehension causing aggravated assault in New Mexico requires proof that the defendant acted "intentionally," not recklessly or negligently:
Id. at 673-74 (citations and internal quotation marks omitted).
Thus, under § 30-3-2(A), Silva could not have been convicted for merely reckless behavior. See also Hammons, 2010 WL 4321693, at *20-21 (citing Silva and holding that the defendant's prior conviction under a similar but not identical New Mexico statute—aggravated assault statute on a family member using a deadly weapon § 30-3-13(A)(2)—constituted a violent felony under the element prong of the ACCA). Cf. United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir.2012) (holding that the defendant's prior Florida conviction for resisting an officer with violence was a crime of violence under § 2L1.2(b)(1)(A)(ii) because the use of more than de minimis physical force or violence was a necessary element of the offense and "Florida's general intent crimes plainly require something more than recklessness"); United States v. King, 673 F.3d 274, 279-80 (4th Cir.2012) (holding that the defendant's South Carolina conviction for pointing and presenting a firearm required that the offender point, present, or show the firearm at another in a threatening manner and therefore qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1)); United States v. Luna, 649 F.3d 91, 108-09 (1st Cir.2011) (holding that the version of a Massachusetts armed robbery statute involving threatening words or gestures has as an element the threat of violent physical force necessary to satisfy the definition of "violent
The Licon-Nunez and Silva decisions provide very persuasive authority supporting the district court's application of the sixteen-level enhancement in the present case on the basis that a prior conviction under N.M. Stat. 30-3-2(A) is categorically a "crime of violence" under the element prong of § 2L1.2. Although our court has not yet addressed whether such a general intent crime includes the requisite mens rea of intent to be deemed a crime of violence or violent felony, I am persuaded by the Fifth and Tenth Circuits' reasoning with regard to N.M. Stat. § 30-3-2(A). By its plain language—"assaulting or striking at another with a deadly weapon"—Subsection (A) unambiguously includes as an inherent element "the use, attempted use, or threatened use of physical force against another person" and precludes the possibility that the crime was committed with the insufficient mens rea of mere recklessness. Whether Rede-Mendez committed this offense under the attempted battery theory or the apprehension causing theory of aggravated assault recognized by the New Mexico courts, the result is the same—the requirement of general intent, combined with the affirmative use of a deadly weapon, renders the New Mexico crime of aggravated assault with a deadly weapon under § 30-3-2(A) sufficiently active and violent to qualify as a crime of violence.
The majority's contrary conclusion rests on the flawed assumption that Rede-Mendez's prior conviction may have been based on the use of "insulting language toward another impugning his honor, delicacy or reputation" under Subsection (C) of the simple assault statute, § 30-3-1(C), which would not satisfy the requirements of Leocal or Johnson. The majority acknowledges that "Rede-Mendez does not contend that his aggravated-assault conviction was based on the use of insulting language," but nonetheless holds that under the categorical approach, "[w]ithout any indication as to whether Rede-Mendez's aggravated-assault conviction ... could have involved the threatened use of physical force, we cannot conclude that Rede-Mendez committed a crime of violence."
However, as the majority further acknowledges, "we are bound by a state court's interpretation of state criminal law, including the elements of a crime[.]" (citing United States v. Rodriguez, 664 F.3d 1032, 1037 (6th Cir.2011)). As I have detailed above, the New Mexico courts recognize only two theories of aggravated assault— conforming to subsections (A) and (B) of § 30-3-1. Thus, the majority's suggested possibility that Rede-Mendez pled guilty to aggravated assault under the "insulting language" theory of § 30-3-1(C) has no basis in New Mexico law. By pleading
For these reasons, I would affirm and therefore respectfully dissent.
Relatedly, the fact that Rede-Mendez apparently does not challenge the application of the statutory sentence enhancement of 8 U.S.C. § 1326(b)(2), which extends the potential sentence for unlawful reentry for defendants whose removal followed a conviction for an "aggravated felony," is not necessarily relevant. Although "aggravated felony" is defined, in relevant part, by reference to the definition of "crime of violence" in 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F), that section contains the broader residual clause not found in § 2L1.2. A crime could thus be an aggravated felony for § 1326(b)(2) purposes but not a crime of violence for § 2L1.2 purposes.
Model Penal Code § 211.1(1). LaFave does not discuss insults, but notes that spoken threats do not constitute assault. 2 LaFave, Substantive Criminal Law § 16.3(b) ("[T]hreatening words alone, without any overt act to carry out the threat ... will not do.").
Moreover, although the dissent suggests otherwise. New Mexico courts have never held that an aggravated-assault conviction cannot be based on an "insulting language" assault. In construing the elements of aggravated assault in State v. DeMary, the New Mexico Supreme Court held that, "because Section 30-3-2 actually uses the word assaulting in its definition of aggravated assault, it may become necessary to construe the definition of assault pursuant to Section 30-3-1, N.M.S.A.1978," and proceeded to list each subsection of § 30-3-1, including subsection (C), the "insulting language" definition of assault. 99 N.M. 177, 655 P.2d 1021, 1023 (1982).
Silva, 608 F.3d at 673-74.
