FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 07-30490
v.
D.C. No.
CR-06-00219-BLW
GERARDO ESPARZA-HERRERA, a.k.a.
Omar Brabo Beltran, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
December 11, 2008—Seattle, Washington
Filed February 25, 2009
Before: Ronald M. Gould, Richard C. Tallman, and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Gould
2273
UNITED STATES v. ESPARZA-HERRERA 2275
COUNSEL
David E. Hollar, United States Department of Justice, Wash-
ington, DC, for the plaintiff-appellant.
Thomas Monaghan, Federal Public Defender Services of
Idaho, Biose, Idaho, for the defendant-appellee.
OPINION
PER CURIAM:
The United States Government appeals the district court’s
ruling that Gerardo Esparza-Herrera’s prior conviction for
2276 UNITED STATES v. ESPARZA-HERRERA
aggravated assault under Arizona Revised Statutes (“A.R.S”)
§ 13-1204(A)(11) was not a conviction for a “crime of vio-
lence” under section 2L1.2 of the United States Sentencing
Guidelines (the “Guidelines”). The district court held that the
Arizona statute did not correspond to the generic definition of
“aggravated assault” that is enumerated as a “crime of vio-
lence” in Guidelines § 2L1.2. As a result, the district court did
not apply a 16-level enhancement to Esparza-Herrera’s sen-
tence for illegal reentry into the United States by a deported
alien. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(b), and we affirm.
I
Gerardo Esparza-Herrera pled guilty in July 2007 to violat-
ing 8 U.S.C. 1326(a), which prohibits unauthorized reentry by
a deported alien. Esparza-Herrera’s Presentencing Report
(“PSR”) revealed a 2000 Arizona conviction for aggravated
assault, in violation of A.R.S. § 13-1204(A)(11),1 which pro-
vides that a person commits aggravated assault when “the per-
son commits the assault by any means of force that causes
temporary but substantial disfigurement, temporary but sub-
stantial loss or impairment of any body organ or part or a frac-
ture of any body part.” Under Arizona law, a person commits
assault by “[i]ntentionally, knowingly or recklessly causing
any physical injury to another person.” Ariz. Rev. Stat. § 13-
1203(A)(1). Esparza-Herrera’s indictment alleged that he “in-
tentionally, knowingly or recklessly . . . caused a temporary
but substantial disfigurement” to the victim. No other official
judicial document forming the record of conviction contained
specific information about Esparza-Herrera’s conduct.2
1
A.R.S. § 13-1204 was revised after Esparza-Herrera’s conviction. The
former A.R.S. § 13-1204(A)(11) provision now appears at A.R.S. § 13-
1204(A)(3).
2
According to the PSR, Esparza-Herrera broke into the house of his vic-
tim, whom he had dated for several months, tied her up, and beat her over
a four hour period. Police officers found the victim with blood on her
hands and face, both eyes swollen shut, and bite marks all over her body.
UNITED STATES v. ESPARZA-HERRERA 2277
The PSR at first concluded that Esparza-Herrera’s prior
aggravated assault conviction was a conviction for a crime of
violence and accordingly recommended a 16-level enhance-
ment to his sentence pursuant to section 2L1.2(b)(1)(A)(ii) of
the Guidelines. Esparza-Herrera objected to the PSR’s recom-
mendation on the ground that his aggravated assault convic-
tion was not a conviction for a crime of violence. The
Probation Department acquiesced, and the revised PSR
instead recommended a four-level enhancement for a “convic-
tion for any other felony” as provided by Guidelines
§ 2L1.2(b)(1)(D). This change reduced Esparza-Herrera’s
sentencing range from 70-87 months to 21-27 months.
The government challenged the revised PSR, but the dis-
trict court held that a 16-level enhancement was inappropriate
even though the Guidelines specify that aggravated assault is
a crime of violence. The district court held that the generic
definition of aggravated assault requires at least a heightened
version of recklessness, one in which the defendant’s conduct
manifests “extreme indifference to the value of human life.”
It held that A.R.S. § 13-1204(A)(11) was defined more
broadly than generic aggravated assault because it encom-
passed “garden-variety” reckless conduct. The district court
did not apply the modified categorical approach because the
government conceded that the record of conviction contained
no other information about Esparza-Herrera’s conduct. The
court concluded that the “crime of violence” enhancement did
not apply because Esparza-Herrera’s statute of conviction did
not correspond to the generic definition of aggravated assault
and was thus not a crime of violence under the Guidelines.
The government appealed.
II
We review a district court’s interpretation of the Guidelines
de novo. United States v. Dallman, 533 F.3d 755, 760 (9th
Cir. 2008). We also review de novo a district court’s ruling
that a prior conviction qualifies as a “crime of violence” under
2278 UNITED STATES v. ESPARZA-HERRERA
Guidelines § 2L1.2. United States v. Cortez-Arias, 403 F.3d
1111, 1114 n.7 (9th Cir. 2005).
Section 2L1.2(b)(1)(A)(ii) of the Guidelines applies a 16-
level sentencing enhancement to a defendant convicted under
8 U.S.C. § 1326 when that “defendant previously was deport-
ed” after a conviction for a “crime of violence.” The only
issue on appeal is whether the district court should have
applied this enhancement. We use the categorical approach
set forth in Taylor v. United States, 495 U.S. 575, 602 (1990),
to determine whether a defendant’s prior conviction satisfies
the Guidelines definition of a crime of violence. United States
v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003). Under
this approach the state statute of conviction is “compared with
the generic definition of that crime to determine if the defen-
dant’s conviction is a crime of violence pursuant to the Sen-
tencing Guidelines.” United States v. Velasquez-Reyes, 427
F.3d 1227, 1229 (9th Cir. 2005). Ordinarily, when the cate-
gorical approach fails we apply the modified categorical
approach, which examines “documents in the record of con-
viction to determine if there is sufficient evidence to conclude
that a defendant was convicted of the elements of the generi-
cally defined crime . . . .” United States v. Ladwig, 432 F.3d
1001, 1003 n.5 (9th Cir. 2005) (internal citation omitted).
Here, however, the government concedes that the record of
conviction is insufficient to satisfy the modified categorical
approach. Hence we are concerned solely with the application
of the categorical approach.
[1] The Application Note to Guidelines § 2L1.2 defines a
“crime of violence” as any one of several enumerated
offenses, including “aggravated assault.” U.S.S.G. § 2L1.2
n.1(b)(iii); see also United States v. Rising Sun, 522 F.3d 989,
996 (9th Cir. 2008) (stating that application notes are gener-
ally “treated as authoritative interpretations of the Sentencing
Guidelines”).3 “When an offense is specifically enumerated
3
The Application Notes alternatively define a “crime of violence” as an
“offense under federal, state, or local law that has as an element the use,
UNITED STATES v. ESPARZA-HERRERA 2279
by the Application Notes as a ‘crime of violence,’ we have
consistently drawn the conclusion that the offense is a per se
crime of violence under the Guidelines.” United States v.
Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir. 2007). There-
fore, to determine whether Esparza-Herrera’s prior aggravated
assault conviction was a conviction for a crime of violence,
we must decide if A.R.S. § 13-1204(A)(11) corresponds to the
Guidelines definition of aggravated assault.
[2] Esparza-Herrera argues that his statute of conviction is
broader than the generic definition of aggravated assault
because Arizona law permits an aggravated assault conviction
for ordinary recklessness while the Model Penal Code
requires a heightened form of recklessness. In Arizona a per-
son commits assault by “[i]ntentionally, knowingly or reck-
lessly causing any physical injury to another person.” Ariz.
Rev. Stat. § 13-1203(A)(1) (emphasis added). Both Arizona
and the Model Penal Code define “recklessly” similarly, but
under the Model Penal Code reckless behavior can sustain a
conviction for “simple assault” only. See MODEL PENAL CODE
§§ 2.02 (defining “recklessly”), 211.1(1)(A) (defining “simple
assault”). The Model Penal Code provides that aggravated
assault occurs only when a person acts purposefully, know-
ingly, or “recklessly under circumstances manifesting extreme
indifference to the value of human life.” MODEL PENAL CODE
§ 211.1(2)(a). Esparza-Herrera argues that the lack of an “ex-
treme indifference” requirement in A.R.S. § 13-1204(A)(11)
makes his statute of conviction substantially broader than
attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2 n.1(b)(iii). Any argument that A.R.S. 13-
1204(A)(11) is a crime of violence under this definition is foreclosed by
United States v. Narvaez-Gomez, which held that under the categorical
approach crimes of violence not enumerated by the Guidelines are limited
to “offenses committed through intentional use of force against the person
of another rather than reckless or grossly negligent conduct.” 489 F.3d
970, 976 (9th Cir. 2007).
2280 UNITED STATES v. ESPARZA-HERRERA
aggravated assault under the Model Penal Code and, conse-
quently, under the Guidelines.
The government counters that we should follow the Fifth
Circuit, which held that a state statute permitting a conviction
for aggravated assault on ordinary reckless conduct can still
qualify as “aggravated assault” under the Guidelines. United
States v. Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir.
2007). The Fifth Circuit held that the absence of an “extreme
indifference” requirement in a Tennessee statute was “not dis-
positive of whether the aggravated assault falls within or out-
side the plain, ordinary meaning of the enumerated offense of
aggravated assault.” Id. at 817. The court concluded that “the
difference in the definition of ‘reckless’ between the Tennes-
see statute and the Model Penal Code does not remove the
Tennessee statute from the family of offenses commonly
known as ‘aggravated assault.’ ” Id. (internal citations omit-
ted).
The Fifth Circuit’s reasoning is not without insight but is
foreclosed by our precedent. The Fifth Circuit uses the “com-
mon sense approach” to determine whether a prior offense
constitutes a crime of violence under Guidelines § 2L1.2(b)
(1)(A)(ii) when the prior offense is an enumerated offense in
the Application Notes. See United States v. Mendoza-Sanchez,
456 F.3d 479, 481-82 (5th Cir. 2006). Were we to follow this
approach, we would determine whether A.R.S. § 13-
1204(A)(11) “is equivalent to the enumerated offense of
aggravated assault as that term is understood in its ordinary,
contemporary, and common meaning.” Mungia-Portillo, 484
F.3d at 816 (internal citations omitted).
[3] We do not use the common sense approach. Instead, we
must apply the categorical approach “even when the object
offense is enumerated as a per se crime of violence under the
Guidelines.” Rodriguez-Guzman, 506 F.3d at 744. In applying
the categorical approach to a “traditional crime” such as
aggravated assault, “we derive [the crime’s] uniform meaning
UNITED STATES v. ESPARZA-HERRERA 2281
from the generic, contemporary meaning employed by most
states, guided by scholarly commentary.” United States v.
Gomez-Leon, 545 F.3d 777, 790 (9th 2008). The Model Penal
Code “serve[s] as an aid” in determining an offense’s generic
meaning. Rodriguez-Guzman, 506 F.3d at 744 (citing Taylor,
495 U.S. at 598). We derive the meaning of an enumerated
Guidelines crime not from the offense’s ordinary meaning but
rather by surveying the Model Penal Code and state statutes
to determine how they define the offense. Thus even if A.R.S.
§ 13-1204(A)(11) is equivalent to aggravated assault “as we
generally understand that term,” United States v. Izaguirre-
Flores, 405 F.3d 270, 275 (5th Cir. 2005), we must conclude
that Esparza-Herrera’s prior conviction was not for generic
aggravated assault if together the Model Penal Code and most
states define aggravated assault more narrowly than does the
Arizona statute.
The government claims that the difference between the Ari-
zona and Model Penal Code mens rea requirements is not a
meaningful distinction. The government relies on United
States v. Velasquez-Reyes, 427 F.3d 1227 (9th Cir. 2005), in
which we held that a state statute defining arson as “knowing
and malicious” conduct was not broader than the generic defi-
nition of arson, which required a “willful and malicious” act.
Id. at 1230. The government overstates Velasquez’s impact.
We stated that in the arson context the common law definition
of “willful” encompasses “knowing” and the defendant could
not “demonstrate how a person could act ‘knowingly and
maliciously’ but not ‘willfully and maliciously.’ ” Id. Here, by
contrast, “recklessly under circumstances manifesting an
extreme indifference to human life” does not encompass
“recklessly,” and a defendant can be reckless without mani-
festing an extreme indifference to human life.
[4] We agree with Esparza-Herrera that the Model Penal
Code commentary shows that the “extreme indifference”
recklessness requirement establishes a mens rea standard for
aggravated assault arguably higher than ordinary recklessness.
2282 UNITED STATES v. ESPARZA-HERRERA
The commentary to the Model Penal Code definition of
aggravated assault states that the “extreme indifference”
clause specifies a “special character of recklessness.” 2 Am.
Law Inst., MODEL PENAL CODE & COMMENTARIES § 211.1 cmt.
4, at 189 (1980). The aggravated assault definition “reserves
major felony sanctions for assaults . . . where the actor was
at least reckless ‘under circumstances manifesting extreme
indifference to the value of human life.’ ” Id. This language
supports the idea that the Model Penal Code drafters envi-
sioned heightened penalties specifically for assaults con-
ducted with “extreme indifference” recklessness.
The Model Penal Code commentary further comments on
the “extreme indifference” clause in its discussion of murder.
See id. at 189 (stating that the “extreme indifference” require-
ment “is adapted from the definition of murder” and that “its
meaning is discussed in the commentary to that section”).
That discussion provides further evidence that “extreme indif-
ference” recklessness is different from ordinary recklessness.
The commentary suggests that “extreme indifference” reck-
lessness “should be treated as murder and [ ] less extreme
recklessness should be punished as manslaughter.” Id. § 210.2
cmt. 4, at 22. It adds that “extreme indifference” recklessness
represents the “kind of reckless homicide that cannot fairly be
distinguished in grading terms from homicides committed
purposely or knowingly.” Id. at 21.
[5] We hold that under the categorical approach, assessing
the law of other jurisdictions and scholarly comment, ordinary
recklessness is a broader mens rea requirement for aggravated
assault than is “recklessness under circumstances manifesting
extreme indifference to human life.” Accordingly, we con-
clude that A.R.S. § 13-1204(A)(11) is broader than the Model
Penal Code’s definition of aggravated assault because the Ari-
zona statute alone encompasses acts done with ordinary reck-
lessness.
[6] With this difference in mind, under our categorical
approach we next determine whether most states follow the
UNITED STATES v. ESPARZA-HERRERA 2283
Model Penal Code in requiring more than ordinary reckless-
ness to sustain an aggravated assault conviction. See
Rodriguez-Guzman, 506 F.3d at 744 (“[A]n offense’s generic
definition under the Guidelines can be drawn from the ‘sense
in which the term is now used in the criminal codes of most
States.’ ” (quoting Taylor, 495 U.S. at 598)). Although sur-
veys of state statutes conducted by the district court, the gov-
ernment, and Esparza-Herrera reach different results, all three
agree that the majority of states define aggravated assault as
requiring at least “extreme indifference” recklessness. The
government concedes that 22 states require either knowledge
or intent for an aggravated assault conviction. The govern-
ment further acknowledges that 10 states and the District of
Columbia follow the Model Penal Code definition requiring
“extreme indifference” recklessness. In sum, under the gov-
ernment’s own survey 33 jurisdictions require, at a minimum,
a heightened form of recklessness to sustain an aggravated
assault conviction. Accepting the government’s analysis and
the premises of our circuit precedent, we hold that a majority
of states define aggravated assault as requiring at least a
heightened, “extreme indifference” form of recklessness. Cf.
Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1153 (9th Cir.
2008) (en banc) (describing 35 states setting the age of con-
sent at below 18 as “the vast majority of states”). We con-
clude that A.R.S. § 13-1204(A)(11) encompasses conduct
beyond aggravated assault, as it is defined by the Model Penal
Code and a majority of states, and therefore a conviction
under that statute under our precedent is not a conviction for
a crime of violence under Guidelines § 2L1.2(b)(1)(A)(ii).
III
Under the categorical approach, aggravated assault requires
a mens rea of at least recklessness “under circumstances man-
ifesting extreme indifference to the value of human life.”
Esparza-Herrera’s statute of conviction, A.R.S. § 13-
1204(A)(11), encompassed ordinary recklessness, and there-
fore his conviction was not a conviction for generic aggra-
2284 UNITED STATES v. ESPARZA-HERRERA
vated assault or a crime of violence. We conclude that the
district court correctly denied the government’s request for a
16-level sentencing enhancement, and accordingly we need
not address Esparza-Herrera’s other arguments.
AFFIRMED.
GOULD, Circuit Judge, with whom TALLMAN and
CALLAHAN, Circuit Judges, join, Concurring:
Our per curiam opinion for the court affirms the district
court’s decision that Gerardo Esparza-Herrera’s prior convic-
tion for violating A.R.S. § 13-1204(A)(11), based on his
guilty plea, does not qualify as a “crime of violence” under
U.S.S.G. § 2L1.2(1)(A)(ii) for purposes of enhancement.
Under our precedent there seems to be no doubt that a reck-
less assault, even one causing significant injury, is not a
“crime of violence” because it is not a generic “aggravated
assault” for Guidelines purposes if the recklessness is not
heightened by an extreme indifference to the value of human
life, and the Arizona statute to which Esparza-Herrera pled
guilty did not so require.
This precedential line of reasoning, however, largely
ignores that U.S.S.G. § 2L1.2(1)(A)(ii) calls for enhancement
of sentence in cases of a prior conviction for a crime of vio-
lence to support a longer sentence for those who pose a dan-
ger to the public. A conviction for violation of A.R.S. § 13-
1204(A)(11) by its necessary terms shows that a person has
previously and recklessly assaulted another, causing a sub-
stantial physical injury. The statute encompasses any “tempo-
rary but substantial” disfigurement or bodily impairment,
which is serious enough to warrant the public’s protection.
I would prefer to conclude that Esparza-Herrera might
deservedly be sentenced to a longer term in the public’s inter-
UNITED STATES v. ESPARZA-HERRERA 2285
est, without regard to our doctrinal standard requiring us to
assess what the majority of jurisdictions view as aggravated
assault. In my view it would be better if we could look at the
matter functionally, balancing fairness to the defendant being
sentenced with fairness to the public that deserves protection.
A “common sense approach” that examines the “ordinary,
contemporary, and common meaning” of A.R.S. § 13-
1204(A)(11) would strike this balance. United States v.
Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. 2007).
But in this esoteric sphere of legal analysis our circuit pre-
cedent in substance says that common sense is out and instead
we must canvass and assess what the majority of jurisdictions
have concluded. I might disagree with the conclusion of the
Fifth Circuit in Mungia-Portillo to the extent it suggests that
there is no relevant difference between extreme indifference
and ordinary recklessness, but I don’t think that such a differ-
ence should be very important in assessing whether there has
been an aggravated assault. I would prefer to use the Fifth
Circuit’s “common sense” approach, rather than trying to
assess the standard jurisdiction by jurisdiction. What is impor-
tant to me is whether the Arizona statute to which Esparza-
Herrera pled guilty shows an offense sufficiently serious that
we should consider it a “crime of violence” warranting a
higher sentence under the advisory Guidelines in the interest
of protecting the community. Using a common sense
approach, I would have no problem concluding that Esparza-
Herrera’s guilty plea to violating A.R.S. § 13-1204(A)(11)
yielded a prior conviction of a crime of violence for purposes
of calculating the range of the advisory Sentencing Guide-
lines, even if supported only by the recklessness required
under the statute to which he pled guilty.1
1
Because the district court sentenced at the high end of the Guidelines,
this case does not present the question whether an above-Guidelines sen-
tence might have been reasonable even if circuit precedent is applied to
negate the “crime of violence” enhancement of the offense level.