The Ninth Circuit has determined that Georgia’s aggravated assault statute is divisible as compared to the definition of a crime of violence. Aggravated assault under Georgia law has two elements: (1) commission of a simple assault and (2) the presence of one statutory aggravator. Simple assault can be committed in one of two ways: (1) attempting to commit a violent injury to the person of another; or (2) committing an act which places another in reasonable apprehension of immediately receiving a violent injury.
Applying the modified categorical approach, the Court determined that Barlow had been convicted of simple assault committed with a deadly weapon. Barlow asserted that his conviction rested upon the least of the acts criminalized by the statute, placing another in apprehension of receiving a violent injury. “[W]e need not decide whether a reasonable apprehension form of simple assault constitutes a ‘crime of violence’ because Barlow’s indictment confirms that he committed the assault ‘by striking [the victim] with said handgun’ and ‘by shooting [the victim] with said handgun,’ not by placing the victim in reasonable apprehension of receiving a violent injury.” “[T]hat is, [] Barlow ‘attempt[ed] to commit a violent injury to the person of another.’” “We therefore hold that Barlow’s conviction for aggravated assault necessarily 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’ under the elements clause.”
The full text of US v. Barlow can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/04/22-30030.pdf