- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Sentencing
- Date Filed: 05-31-2012
- Case #: 10-10441
- Judge(s)/Court Below: Circuit Judge Tallman, for the court; Circuit Judges Graber and Berzon.
- Full Text Opinion
In 2001, Miguel Angel Gomez-Hernandez ("Gomez-Hernandez"), plead guilty to aggravated assault and attempted aggravated assault for attacking his girlfriend and sister-in-law with a knife. In February 2008, upon completion of his sentence, he was deported to Mexico. In October 2009, Gomez-Hernandez was apprehended in Arizona and pled guilty to illegal re-entry after deportation. The court imposed a forty-one month sentence based, in part, on a sixteen-level enhancement for the previous conviction and deportation, under USSG § 2L1.2(b)(1)(A)(ii). Gomez-Hernandez entered a conditional plea of guilty and appealed the enhancement. The Court noted that enhancement for crimes of violence, under § 2L1.2, is justified if the crime of conviction, attempted aggravated assault, is a “categorical match” to the generic crime, attempted aggravated assault; i.e., “whether, as a matter of law, [Gomez-Hernandez’] state conviction necessarily rested on the same elements as required by the generic offense.” The court applied the two-prongs of Taylor and found Gomez-Hernandez' attempt offense qualified as a crime of violence justifying enhancement, because (1) the statute and the generic definition of attempt are coextensive, regardless the mens rea of the underlying offense; (2) the threat or use of violence is not an element of generic aggravated assault which, as a result, corresponds with the statutory crime of aggravated assault; and (3) Gomez-Hernandez’ conviction rested on the specific intent to use a deadly weapon, which is a generic aggravating factor. The Court also noted that only the conviction offense must be a categorical match with the generic offense, not the underlying offense. The district court, therefore, properly applied a sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(ii). AFFIRMED.