Kudos to one of our panel attorneys. We now have United States v. Rede-Mendez, No. 10-2509 (6th Cir. May 21, 2012) (for publication).
Panel of Judges Moore, Griffin, and White. Judge Griffin dissented.
Illegal-reentry case. Below GLs sentence of 36 months (GLs were 57 to 71 months). D had gotten the 16-level bump for a prior crime of violence. He had a New Mexico aggravated assault (deadly weapon). COA found this prior was not categorically a crime of violence, and the Shepard docs did not reveal the details of the conviction. Case remanded for resentencing.
To Note:
* The application notes to 2L1.2 give aggravated assault as a crime of violence.
* Categorical approach applies. And the name of a prior offense does not govern. Just b/c it's called aggravated assault does not mean it is! Must fall w/i generic definition.
* COA looks to Model Penal Code for guidance.
* Reiterates need to "feign agnosticism" if Shepard docs don't reveal nature of prior offense. "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." What matters is what the gov can show.
* A statement of probable cause is NOT a Shepard document.
New Mexico Aggravated Assault:
* Includes using insulting language to impugn honor, delicacy, or reputation. Even if a prosecution under this subsection might be rare, or even unconstitutional, it's still available to prosecutors. . . .
* Does not require specific intent to injure or frighten.
* A deadly weapon alone does not necessarily make it a crime of violence.
J. Griffin's Dissent:
* The 10th and 5th Circuits have held that New Mexico agg assault w/deadly weapon has as an element the use of force. So they have found it to be a crime of violence.
* Suggests that "common and legal sense" dictate that New Mexico courts do not recognize agg assault with a deadly weapon arising from insulting language.
