United States v. Rede-Mendez

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0144p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-2509
v.
,
>
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Defendant-Appellant. -
ANDRES REDE-MENDEZ,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 10-00180-001—Robert J. Jonker, District Judge.
Argued: September 22, 2011
Decided and Filed: May 21, 2012
Before: MOORE, GRIFFIN, and WHITE, Circuit Judges.

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COUNSEL
ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN, Grand Rapids, Michigan, for
Appellant. John F. Salan, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL & PHELAN,
Grand Rapids, Michigan, for Appellant. John F. Salan, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
MOORE, J., delivered the opinion of the court, in which WHITE, J., joined.
GRIFFIN, J. (pp. 11–22), delivered a separate dissenting opinion.
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OPINION
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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

1
No. 10-2509 United States v. Rede-Mendez Page 2

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.

I. BACKGROUND

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).1 He pleaded guilty on August 17, 2010.

The Presentence Investigation Report (“PSR”) utilized U.S.S.G. § 2L1.2, which
sets a base offense level of eight for the crime of Unlawfully Entering or Remaining in
the United States and provides for a sixteen-level enhancement if the defendant
“previously was deported . . . after a conviction for a felony that is . . . a crime of
violence,” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Concluding that Rede-Mendez’s aggravated-
assault conviction constituted a crime of violence, the PSR applied the sixteen-level
increase. The PSR subtracted three levels for Rede-Mendez’s acceptance of
responsibility. With a criminal history category of IV and an offense level of twenty-
one, the recommended guidelines range was 57-71 months of imprisonment.

1
8 U.S.C. § 1326(a) describes the crime of unlawful reentry of removed aliens and sets a
maximum term of imprisonment of two years. Section 1326(b)(2) sets a higher maximum term of
imprisonment of twenty years for aliens whose removal followed conviction for an “aggravated felony.”
No. 10-2509 United States v. Rede-Mendez Page 3

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.

II. ANALYSIS

A. 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).2

2
Guideline § 4B1.2 (the career offender guideline), 18 U.S.C. § 16, and the Armed Career
Criminal Act, 18 U.S.C. § 924(e), all employ the “use, attempted use, or threatened use of physical force”
definition of crime of violence or violent felony, but also contain residual clauses, which include crimes
that carry a “substantial risk that physical force against the person or property of another may be used in
No. 10-2509 United States v. Rede-Mendez Page 4

Although we are bound by a state court’s interpretation of state criminal law, including
the elements of a crime, the ultimate issue of whether a crime is a crime of violence is
a question of federal law. United States v. Rodriguez, 664 F.3d 1032, 1037 (6th Cir.
2011) (citing Johnson v. United States, — U.S. —, 130 S. Ct. 1265, 1269 (2010)).

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
(2011) (quoting James v. United States, 550 U.S. 192, 202 (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 (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; 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-

the course of committing the offense,” 18 U.S.C. § 16, or a “serious potential risk of physical injury to
another,” 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2. To the extent that cases interpreting these other
provisions analyze the “element” prong, they are probative to an interpretation of U.S.S.G. § 2L1.2. See
United States v. Vanhook, 640 F.3d 706, 712 n.4 (6th Cir. 2011) (“Given the similarity between the
ACCA’s definition of ‘violent felony’ and the definition of ‘crime of violence’ contained in the pertinent
guideline provision, courts, including this one, have taken the position that authority interpreting one
phrase is generally persuasive when interpreting the other.”). Cases analyzing the residual clauses, by
contrast, are not pertinent.
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.
No. 10-2509 United States v. Rede-Mendez Page 5

17 (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). 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; 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.

B. New Mexico Aggravated Assault—Categorical Analysis

1. Enumerated-Offense Prong

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 another impugning his honor, delicacy or reputation.”
Id. § 30-3-1.

Under the Model Penal Code, a defendant commits aggravated assault if he or
she

(a) attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly, or recklessly under circumstances manifesting
extreme indifference to the value of human life, or
(b) attempts to cause or purposely or knowingly causes bodily injury to another
with a deadly weapon[.]

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
No. 10-2509 United States v. Rede-Mendez Page 6

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, 597 P.2d 280, 284 (N.M. 1979), overruled on other grounds,
Sells v. State, 653 P.2d 162 (N.M. 1982); State v. Morales, 45 P.3d 406, 414-15 (N.M.
Ct. App. 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, 921 P.2d 1266, 1277 n.5 (N.M.
1996).3

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.4 Because the New Mexico definition
of aggravated assault is broader than the Model Penal Code definition, which we have
recognized as the generic definition of that crime, we conclude that Rede-Mendez’s

3
Although the statute contains no express mens rea requirement as to any element, New Mexico
courts have consistently held that aggravated assault is a general-intent crime. See, e.g., Manus, 597 P.2d
at 284 (explaining that the state must prove that the act constituting aggravated assault “was done with a
general criminal intent”); State v. Bachicha, 808 P.2d 51, 54 (N.M. Ct. App. 1991) (“Proof of general
criminal intent is also a necessary element of the offense of aggravated assault.” (citing State v. Cruz, 525
P.2d 382 (N.M. Ct. App. 1974))). For crimes without any express statutory mens rea requirement, we look
to how state courts have construed the offense. See McFalls, 592 F.3d at 716.
4
Under the Model Penal Code, a person is guilty of simple assault if he
(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to
another; or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious bodily
injury.
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.”).
No. 10-2509 United States v. Rede-Mendez Page 7

conviction was not categorically a crime of violence under the enumerated-offense prong
of U.S.S.G. § 2L1.2.

2. “Element” Prong

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).5 Most of these cases deal with assault or battery statutes that require only
“the least touching,” but qualify as crimes of violence when the touching is accompanied
by a deadly weapon. See United States v. Grajeda, 581 F.3d 1186, 1191-92 (9th Cir.
2009); United States v. Dominguez, 479 F.3d 345, 348-49 (5th Cir. 2007); cf. Ramon-
Silva, 608 F.3d at 672 (no touch was necessary because using a deadly weapon while
engaging in menacing conduct that places someone in fear of an imminent battery
“creates a commensurate threat of physical force”).

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

5
Ramon-Silva addressed the same statute at issue here. A divided panel of the Tenth Circuit held
that the “menacing conduct” prong of the New Mexico aggravated-assault statute was a crime of violence
when committed with a deadly weapon, but did not address the “insulting language” prong. See 608 F.3d
at 670 (“[W]e focus our analysis on ‘apprehension causing’ aggravated assault.”).
No. 10-2509 United States v. Rede-Mendez Page 8

of physical force, but does not necessarily supply the threat if it is not already present
in the underlying crime.6

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.7 Even if the former qualified as a crime of violence under the
element prong—an issue we do not decide—the latter would not.

C. Shepard Documents

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

6
Even if the use of a deadly weapon arguably carries with it a risk that physical force may be
used, U.S.S.G. § 2L1.2 does not include a residual clause in its definition of crime of violence. See supra
note 2.
7
Although convictions under the “insulting language” prong of New Mexico’s assault statute
appear to be quite rare, and would perhaps be unconstitutional, see State v. Parrillo, 607 P.2d 636, 637
(N.M. Ct. App. 1979), the provision remains part of the New Mexico criminal code and thus available to
prosecutors in that state. The likelihood that a defendant’s conviction was based on a particular version
of the offense is not a factor in the crime of violence analysis. In Shepard, for example, “[w]hat mattered
was not how likely it was that Shepard had pleaded guilty to burglarizing buildings (or how unlikely it was
that he had pleaded guilty to burglarizing ‘ship[s], vessel[s] or vehicle[s]’), but whether the government
could produce evidence showing that Shepard ‘necessarily admitted’ to breaking into buildings when he
entered his pleas.” Medina-Almaguer, 559 F.3d at 425 (citing Shepard, 544 U.S. at 16).
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.
655 P.2d 1021, 1023 (N.M. 1982).
No. 10-2509 United States v. Rede-Mendez Page 9

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, 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 (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 breaking into a building or
structure. 544 U.S. at 16-17. The Supreme Court held that the sentence enhancement
was improper because, even though the fact that the defendant had actually broken into
buildings was essentially uncontested, the complaint contained the broader statutory
language and no other state-court document that the district court could properly have
considered suggested a narrower charge. Id. at 17, 21-22. In order to avoid a similar
No. 10-2509 United States v. Rede-Mendez Page 10

result in this case, the New Mexico authorities could have drafted a more precise charge
or required a more detailed plea agreement.

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.

III. CONCLUSION

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.
No. 10-2509 United States v. Rede-Mendez Page 11

_____________

DISSENT
_____________

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 131 S. Ct. 1473 (2011); United States v. Licon-Nunez, 230 F. App’x 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.

I.

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 or about the
10th day of March, 2001, in Taos County, New Mexico, the above-named defendant did
No. 10-2509 United States v. Rede-Mendez Page 12

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 N.M.S.A. 1978 § 30-3-2(A) (1963) (A fourth degree felony).” On
July 11, 2001, Rede-Mendez entered into a plea agreement and pled guilty to Count 2
of the information. The district court approved the plea agreement and, based on Rede-
Mendez’s plea, stated in its opinion that “there exists a basis in fact for believing the
defendant is guilty of the offenses charged and that an independent record for such
factual basis has been made.” On July 13, 2001, the court sentenced Rede-Mendez to
eighteen months of incarceration followed by one year of parole, suspended upon the
condition that he was to remain in custody for a thirty-day period to allow the INS to
deport him to his native country of Mexico. The judgment of conviction reiterated that
Rede-Mendez “is convicted and stands guilty of the crime as charged in Count 2 of the
Criminal Information of: AGGRAVATED ASSAULT (DEADLY WEAPON), contrary
to N.M.S.A. 1978, § 30-3-2(A) (1963) (A fourth degree felony).”

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.

II.

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,
No. 10-2509 United States v. Rede-Mendez Page 13

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.1 United States
v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010); United States v. Rivera-Oros,
590 F.3d 1123, 1126 (10th Cir. 2009).

In Leocal v. Ashcroft, 543 U.S. 1 (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),2 and
determined that the phrase “use of physical force” connotes “active employment” and
thus refers only to crimes that carry “a higher degree of intent than negligence or merely
accidental conduct.” Id. at 9. In the wake of the Leocal decision, we, and the majority
of our sister circuits, have extended its rationale and held that crimes requiring only
recklessness do not constitute crimes of violence or violent felonies under the element
prongs of § 16(a), the ACCA, or § 2L1.2. See United States v. McMurray, 653 F.3d 367,
374-75 (6th Cir. 2011); United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010);
United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009); United States v. Portela, 469
F.3d 496, 499 (6th Cir. 2006); see also United States v. Zuniga-Soto, 527 F.3d 1110,
1124 (10th Cir. 2008) (and cases cited therein).

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.”

1
The second criterion is henceforth referred to as the “element prong.”
2
In light of the identical language used in the element prongs of the career offender guideline
(U.S.S.G. § 4B1.2(a)(1)), Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)(2)(B)(i)), 18 U.S.C.
§ 16(a), and U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), to define “violent felony” and “crime of violence,” we
“have taken the position that authority interpreting one phrase is generally persuasive when interpreting
the other.” United States v. Vanhook, 640 F.3d 706, 712 n.4 (6th Cir. 2011); see also United States v.
McMurray, 653 F.3d 367, 371 n.1, 373-74 (6th Cir. 2011).
No. 10-2509 United States v. Rede-Mendez Page 14

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 (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 (2005), and
United States v. Gibb, 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, 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
conduct which causes another person to reasonably believe that he is in danger of
No. 10-2509 United States v. Rede-Mendez Page 15

receiving an immediate battery; or (C) the use of insulting language toward another
impugning his honor, delicacy or reputation.” N.M. Stat. § 30-3-1.

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, 483 P.2d 504, 505 (N.M. Ct. App. 1971); State v. Anaya, 439 P.2d 561, 562-
63 (N.M. Ct. App. 1968); N.M. U.J.I. (New Mexico Uniform Jury Instructions) 14-304
through 14-306.3 See also Silva, 608 F.3d at 669 (discussing the two theories); cf.
United States v. Hammons, No. CR 07-1164 JB, 2010 WL 4321693, at *20 (D. N.M.
Oct. 6, 2010) (also discussing the two theories in the context of New Mexico’s similar
offense of aggravated assault against a family member with a deadly weapon).

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

3
N.M. U.J.I. 14-306 sets forth the elements of these two theories:
For you to find the defendant guilty of aggravated assault by use of a deadly weapon [as
charged in Count ____], the state must prove to your satisfaction beyond a reasonable
doubt each of the following elements of the crime:
1. The defendant tried to touch or apply force to ____ (name of victim) by ____;
2. The defendant acted in a rude, insolent or angry manner;
3. The defendant intended to touch or apply force to _____ (name of victim) by ____;
OR
1. The defendant ____ (describe unlawful act, threat or menacing conduct);
2. The defendant’s conduct caused ____ (name of victim) to believe the defendant was
about to intrude on _____’s (name of victim) bodily integrity or personal safety by
touching or applying force to ____ (name of victim) in a rude, insolent or angry manner;
3. A reasonable person in the same circumstances as ____ (name of victim) would have
had the same belief;
AND
4. The defendant used a [____] deadly weapon. The defendant used a ____ (name of
object). A ____ (name of object) is a deadly weapon only if you find that a ____ (name
of object), when used as a weapon, could cause death or great bodily harm[.]
No. 10-2509 United States v. Rede-Mendez Page 16

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, 230 F.
App’x at 451. Because Licon-Nunez’s indictment tracked the language of § 30-3-2(A),4
the court construed the requisite elements of the offense as “(1) the unlawful assaulting
or striking at another and (2) the use of a deadly weapon,” with the first element
specifically requiring that the defendant tried to and intended to touch or apply force to
the victim while acting in a rude, insolent, or angry manner. Id. (citing N.M. U.J.I. 14-
304). The court rejected Licon-Nunez’s argument that the offense does not require an
element of the threatened use of physical force because it can be committed by means
of offensive touching rather than by the application of force:

We have recently held that the offensive touching of an individual with
a deadly weapon creates a sufficient threat of force to qualify as a crime
of violence. [United States v.] Dominguez, 479 F.3d [345, 348 (5th Cir.
2007)]. In Dominguez, the Court considered whether the Florida offense
of aggravated battery by use of a deadly weapon, which can be
committed via the intentional touching of a victim with a deadly weapon,
was a crime of violence. The Court determined that even though an
intentional touching with a deadly weapon might not itself cause injury,

4
The indictment charged that Licon-Nunez “did assault or strike at Cesar Esparza with a deadly
weapon, to wit: a knife, a fourth degree felony contrary to Section 30-3-2A NMSA 1978.” Id. at 451.
No. 10-2509 United States v. Rede-Mendez Page 17

as required for an actual use of force, “it could lead to more violent
contact, or could at least put the victim on notice of the possibility that
the weapon will be used more harshly in the future, thereby constituting
a threatened use of force.” Id. at 349. We think the same may be said of
the New Mexico crime of aggravated assault by use of a deadly weapon.
While the New Mexico crime differs from the crime in Dominguez
because the former does not require an actual touching, the attempt to
offensively touch a victim with a deadly weapon combined with the
intent to do the same is enough to give rise to a threatened use of force
under the reasoning in Dominguez. Thus, Licon-Nunez’s conviction for
aggravated assault by use of a deadly weapon qualifies as a crime of
violence warranting a sentence enhancement under § 2L1.2.

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 receiving an immediate battery,’” the use of a deadly
weapon, and proof of general criminal intent. Id. at 670 (quoting Bachicha, 808 P.2d at
No. 10-2509 United States v. Rede-Mendez Page 18

54).5 Considering these elements together, the court held that § 30-3-2(A) involves
active violent force:

“[A]pprehension causing” aggravated assault in New Mexico includes as
an element the threatened use of “force capable of causing physical pain
or injury to another person.” See Johnson, 130 S. Ct. at 1271.
Threatening or engaging in menacing conduct toward a victim, with a
weapon capable of producing death or great bodily harm, threatens the
use of “violent force” because by committing such an act, the aggressor
communicates to his victim that he will potentially use “violent force”
against the victim in the near-future. Additionally, “apprehension
causing” aggravated assault threatens the use of “violent force” because
the proscribed conduct always has the potential to lead to “violent force.”

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

5
Although Silva’s state-court plea agreement did not describe the assault and the record did not
contain the plea colloquy, in focusing its analysis on this theory, the court noted that the New Mexico
indictment tracked the statutory language of § 30-3-2(A), and Silva’s sentencing challenge centered upon
this theory. Id. at 669 n.3, 670.
No. 10-2509 United States v. Rede-Mendez Page 19

of apprehension causing aggravated assault in New Mexico requires proof that the
defendant acted “intentionally,” not recklessly or negligently:

[T]his argument . . . ignores Silva’s plea of no contest to aggravated
assault, which was an admission of intentional conduct. “Apprehension
causing” aggravated assault requires proof of general criminal intent,
which New Mexico courts have consistently “defined as conscious
wrongdoing or the purposeful doing of an act that the law declares to be
a crime.” State v. Campos, [921 P.2d 1266, 1277 n.5 (N.M. 1996))]. . . .
Silva concedes as much in his brief when he states that in a prosecution
for “apprehension causing” aggravated assault, New Mexico’s Uniform
Jury Instruction for general criminal intent requires a jury to find beyond
a reasonable doubt that “the defendant acted intentionally when he
committed the crime.” N.M. U.J.I. 14-141. That aggravated assault does
not require proof of a specific intent to assault the victim, State v. Manus,
[597 P.2d 280, 284 (N.M. 1979)], overruled on other grounds by Sells v.
State, [653 P.2d 162, 164 (N.M. 1982)] [,] . . . or of a specific “intent []
to injure or even frighten” the victim, State v. Morales, [45 P.3d 406, 414
(2002)], only confirms that aggravated assault is not a specific intent
crime, but rather is a general intent crime. The presence or absence of an
element of specific intent does not dispositively determine whether a
prior conviction qualifies as a violent felony under the ACCA. Because
Silva admitted to engaging in conduct constituting the threatened use of
physical force, and admitted to engaging in that conduct intentionally, his
aggravated assault conviction qualifies as a violent felony.
***
[A]pprehension-causing aggravated assault requires proof of more than
the display of dexterity in handling a weapon; the crime requires proof
that a defendant purposefully threatened or engaged in menacing conduct
toward a victim, with a weapon capable of producing death or great
bodily harm. See Bachicha, 808 P.2d at 54. We conclude that this
intentional conduct threatens the use of physical force against the person
of another, and therefore qualifies as a violent felony under the ACCA.

Id. at 673-74 (citations and internal quotation marks omitted).6

6
In so concluding, the court expressly declined to further expand Leocal’s holding:
The dissent would conclude that Silva’s aggravated assault conviction is not a violent
felony, and would extend Leocal and Zuniga-Soto to conclude that crimes have as an
element the “threatened use of physical force against the person of another” only if they
proscribe “conduct performed with an intent to induce fear.” [Silva, 608 F.3d at 676
(Hartz, J., dissenting)]. But Leocal cannot be read as definitively supporting that
No. 10-2509 United States v. Rede-Mendez Page 20

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 felony” under the ACCA); United
States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir. 2010) (holding that Colorado
felony menacing statute “is categorically a crime of violence under the element prong
of U.S.S.G. § 2L1.2. The nature of the force required . . . is in the category of violent
active crimes, because it penalizes imminent serious bodily injury, rather than minimal,
non-violent touching, and necessarily involves a threat to physical safety, rather than
general safety. Furthermore, the predicate offense of menacing, a general intent crime,
includes the requisite mens rea of intent for a crime of violence. It requires the defendant
to knowingly place another person in fear of an imminent serious bodily harm.”); United

extension. That case resolved an issue very different from the one we face here:
whether state DUI offenses, “which either do not have a mens rea component or require
only a showing of negligence in the operation of a vehicle,” have as an element the use
of physical force against the person of another, 543 U.S. at 6, 125 S. Ct. 377. In
resolving that issue, the Court made clear that it “d[id] not deal . . . with an attempted
or threatened use of force.” Id. at 8-9, 125 S. Ct. 377 (emphasis in original).
Silva, 608 F.3d at 673-74.
No. 10-2509 United States v. Rede-Mendez Page 21

States v. Pulliam, 566 F.3d 784, 788 (8th Cir. 2009) (“It goes without saying that
displaying an operational weapon before another in an angry or threatening manner [in
violation of Missouri’s crime of unlawful use of a weapon] qualifies as threatened use
of physical force against another person.”).

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
No. 10-2509 United States v. Rede-Mendez Page 22

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 guilty to aggravated assault
with a deadly weapon under § 30-3-2(A), Rede-Mendez’s conviction satisfied the
element prong of § 2L1.2 cmt. n.1(B)(iii) so as to validate the district court’s imposition
of the sixteen-level sentencing enhancement.

III.

For these reasons, I would affirm and therefore respectfully dissent.