Ninth Circuit Finds that GA Aggravated Assault is Crime of Violence

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

Eighth Circuit Finds that AZ Aggravated Assault is Crime of Violence

The Eighth Circuit has determined that an Arizona conviction for aggravated assault, which required the defendant to intentionally or knowingly impede the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument, is a crime of violence.

The full text of US v. Lopez-Castillo can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/02/211533P.pdf

Fifth Circuit Finds that TX Aggravated Assault Conviction is not a Crime of Violence

The Fifth Circuit has determined that a Texas conviction for aggravated assault cannot qualify as a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes a minimum mens rea of recklessness, and the statute is indivisible between the various applicable mens reas.

The full text of US v. Gomez Gomez can be found here:

https://www.ca5.uscourts.gov/opinions/pub/17/17-20526-CR1.pdf

Eighth Circuit Finds that TX Aggravated Assault is not Violent Felony

The Eighth Circuit has determined that a Texas conviction for aggravated assault is not a violent felony because it encompasses reckless conduct. “Everyone agrees that the Texas law in question defines a single, indivisible offense that can be committed under any of three mental states—intentionally, knowingly, or recklessly.”

The full text of United States v. Hoxworth can be found here: https://ecf.ca8.uscourts.gov/opndir/21/08/191562P.pdf

Ninth Circuit Finds that AZ Aggravated Assault Conviction is CIMT

The Ninth Circuit has determined that one combination of subsections of Arizona’s basic and aggravated assault statutes qualify as a crime involving moral turpitude. Specifically, an assault committed with by Intentionally placing another person in reasonable apprehension of imminent physical injury through the use of a deadly weapon or dangerous instrument contains a sufficiently high mens rea and sufficiently serious conduct to rise to the level of moral turpitude.

The full text of Altayar v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/14/17-73308.pdf

Eighth Circuit Finds that Arkansas Conviction for Aggravated Assault and South Carolina Conviction for Pointing a Firearm at Another Person are Crimes of Violence

The Eighth Circuit has determined that an Arkansas conviction for aggravated assault and a South Carolina conviction for pointing a firearm at another person are both crimes of violence for federal sentencing purposes. With respect to the Arkansas aggravated assault conviction, the court held that the statute is divisible, and subsection (a)(1) is not a crime of violence. However, subsection (a)(2), which criminalizes displaying a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person, necessarily involves the threatened use of violent force. With respect to the South Carolina firearms conviction, the court deferred to prior precedent finding that that pointing a gun at another person qualifies as a crime of violence.

The full text of United States v. Hataway can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/181953P.pdf

Ninth Circuit Finds that AZ Aggravated Assault is not Violent Felony

The Ninth Circuit has determined that aggravated assault under Arizona Revised Statute § 13-1203(A)(1) no longer qualifies as a violent felony under the Armed Career Criminal Act (ACCA). Given the similarity between the definition of a violent felony under the ACCA and a crime of violence aggravated felony, this case could have persuasive impact in the immigration context.

The full text of United States v. Orona can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-17508.pdf

Seventh Circuit Remands case to Board to Address Whether NJ Aggravated Assault Conviction is a CIMT

The Seventh Circuit has determined that some of the conduct criminalized by New Jersey’s aggravated assault statute falls outside the definition of moral turpitude. Examining the facts of the petitioner’s conviction, the court noted that “the only weapons anyone had in the fracas leading to Garcia-Martinez’s earlier conviction were body parts: hands, fingers, feet. Body parts are sometimes, but not always, considered to be deadly weapons. In other instances, courts have declined to characterize body parts as deadly or dangerous weapons.” “New Jersey, the state of Garcia-Martinez’s conviction, has its own quirks. There, placing a hand in a pocket so as to make a victim believe it is a gun counts as the use of a deadly weapon.”

“The Board left most of this unexplored. It did not explain why Garcia-Martinez’s act of sticking his leg out to trip the victim was an act of moral turpitude, thus making his offense fall within the generic crime of assault with a deadly weapon—if that is indeed what it decided (also unclear). To the extent the Board was relying on accomplice liability, it did not explain whether its decision rested only on the assumption that the actual assailants were using their fists, or also on the unsupported speculation that they were holding some other unspecified weapon that the New Jersey judge thought unimportant enough not to address.”

Finally, the court also reminded the Board that under the proper application of the modified categorical approach, if all relevant parts of the record of conviction are entered into evidence, the court should be able to determine as a matter of law whether a conviction is a crime involving moral turpitude or not. “Garcia-Martinez was entitled to show the Board the record on which the New Jersey courts actually relied; that record shows that he was convicted without any further fact-finding about the nature of the accomplices’ weapons. The only task left for the Board was to decide as a matter of law how the New Jersey statute maps onto the generic offense of assault with a deadly weapon.“ “Additionally, the New Jersey Supreme Court requires courts to establish a factual basis before accepting a guilty plea, and the state court accepting Garcia-Martinez’s conviction said nothing about the need to establish the existence of a traditional deadly weapon.” “. It appears to us that Garcia-Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey’s assault with a deadly weapon statute is closer to generic simple assault, and thus not a crime of moral turpitude, or stays within the boundaries of generic assault with a deadly weapon, and thus reflects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez’s Shepard documents, it should explain that view and Garcia-Martinez should be given the opportunity to present any necessary additional materials.”

The full text of Garcia-Martinez v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-16/C:18-1797:J:Wood:aut:T:fnOp:N:2326433:S:0

Eighth Circuit finds that North Dakota Aggravated Assault Statute is not a Crime of Violence

The Eighth Circuit has determined that a North Dakota conviction for aggravated assault is overbroad and divisible with respect to the definition of a crime of violence under the sentencing guidelines. The court determined that subsection (a) of the statute includes reckless driving, which is outside the definition of a crime of violence. Given the similarity between the definition of a crime of violence in the immigration context and the sentencing guidelines, this case could have persuasive value in the immigration context.

The full text of United States v. Schneider can be found here:

http://media.ca8.uscourts.gov/opndir/18/09/173034P.pdf

Ninth Circuit finds that Tennessee Aggravated Assault Qualifies as a Crime of Violence

The Ninth Circuit has determined that a Tennessee conviction for aggravated assault qualifies as a crime of violence.  The court noted that different punishments are prescribed for reckless and intentional conduct.  Thus, the alternative mens reas are alternative elements.  A conviction for intentional conduct under the statute qualifies as a crime of violence, as it requires the infliction of serious bodily injury or the use or display of a deadly weapon.  Therefore, force more violent than mere offense touching is required to sustain a conviction.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Perez-Silvan can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10177.pdf

Ninth Circuit finds that Texas Aggravated Assault Statute is a Crime of Violence

The Ninth Circuit has determined that a conviction for aggravated assault in Texas is categorically a crime of violence under the federal sentencing guidelines.  The statute requires the infliction of serious bodily injury or the use or exhibition of a deadly weapon.  The court rejected the argument that seriously bodily injury could be inflicted without the use of violence force, such as through the administration of poison.  The court also rejected the assertion that a defendant could exhibit a deadly weapon without using it.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Calvillo-Palacios can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10039.pdf

Eighth Circuit Finds that KS Conviction for Attempted Aggravated Assault is Crime of Violence

The Eighth Circuit has determined that a Kansas conviction for attempted aggravated assault qualifies as a crime of violence under the federal sentencing guidelines.  The court noted that the statute requires that a defendant make the victim reasonably fear immediate physical harm, and that such conduct constitutes the use of violent force.  Given the similarity in the definition of a crime of violence under the sentencing guidelines and the definition of a crime of violence aggravated felony in the Immigration and Nationality Act, this case likely impacts whether a conviction under this statute would be considered an aggravated felony for immigration purposes.

The full text of US v. Price can be found here: 

http://media.ca8.uscourts.gov/opndir/17/03/161334P.pdf

Sixth Circuit Finds that an Ohio Conviction for Aggravated Assault is a Crime Involving Moral Turpitude

The Sixth Circuit has determined that a conviction in Ohio for aggravated assault is categorically a crime involving moral turpitude because it necessarily entails in the infliction of serious physical injury on the victim.

The full text of Lovano v. Lynch can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0013p-06.pdf

Tenth Circuit Finds that New Mexico Conviction for Aggravated Assault with a Deadly Weapon is a Crime of Violence

In a federal sentencing case, the Tenth Circuit has determined that a New Mexico conviction for aggravated assault with a deadly weapon is categorically a crime of violence because it requires the use of a deadly weapon during the assault.  Given the similarities between the definition of a crime of violence in the criminal sentencing context and the immigration context, this decision will likely have persuasive value when evaluating whether this conviction qualifies as a crime of violence aggravated felony.

The full text of United States v. Maldanado-Palma can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-2146.pdf

Eighth Circuit Addresses Arkansas Conviction for Aggravated Assault

In the context of a criminal sentencing proceeding, the Eighth Circuit determined that the statute governing aggravated assault in Arkansas is overbroad compared to the definition of a violent felony.  The Court also determined that the statute is divisible, and determined that subsection (a)(1) - which requires a person to manifest extreme indifference to the value of human life and to purposely engage in conduct that creates a substantial danger of death or serious physical injury to another person - did not match the definition of a violent felony because it only requires the government to prove that a defendant's conduct created a substantial danger of death or serious physical injury, not to actually use violent force against another person.  Given the similarity between the definition of a violent felony in the sentencing context and the definition of a crime of violence in the immigration context, this decision likely has implications in the immigration context as well.

The full text of US v. Jordan can be found here: http://media.ca8.uscourts.gov/opndir/16/02/143444P.pdf

Ninth Circuit Finds that New Jersey Aggravated Assault is not a Crime of Violence

The Ninth Circuit determined that a mens rea of extreme indifference recklessness is insufficient to sustain a finding of an aggravated assault crime of violence.  As such, a conviction for aggravated assault in New Jersey encompasses conduct not covered by the generic definition of a crime of violence, and the conviction does not qualify as a crime of violence for federal sentencing purposes (and very possibly, for immigration purposes as well, since the Ninth Circuit's definition of a crime of violence under 18 U.S.C. 16(a) excludes reckless or negligent acts).  The court also noted that the New Jersey definition of "attempt" is broader than the federal definition.

The full text of United States v. Garcia Jimenez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/14-10484.pdf

Ninth Circuit Addresses Arizona Aggravated Assault Statute

In an unpublished decision, the Ninth Circuit determined that a conviction under Arizona Revised Statutes §§ 13-1203(A)(3) and 13-1204(A)(8)(e) for aggravated assault is not categorically a crime involving moral turpitude.  The court recognized that under Arizona law, the intent predicates in § 13-1203(A)(3) constitute only means of committing the crime of assault, not separate elements.  Arizona courts have held that  statutes that prohibit one act committed with different mental states are construed as defining a single offense, and therefore, a jury need not unanimously decide which subset mental state the defendant had while committing the crime. As such, the intent predicates are not alternative elements.  

The full text of Govindarajan v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/05/11-71533.pdf

Ninth Circuit Determines that Arizona Aggravated Assault is not Necessarily a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit, in the context of a sentencing hearing for illegal re-entry, addressed where Arizona's aggravated assault could qualify as an aggravated felony.  While the standards for a crime of violence under the federal sentencing guidelines differ somewhat from the standard for a crime of violence in immigration law, the court made several observations about the statute of conviction at issue that could carry over into an immigration context.  

For example, the court noted that a conviction for aggravated assault in Arizona can be based on a mens rea of ordinary recklessness.  Under Ninth Circuit case law, that would be insufficient to deem a conviction a crime of violence, which requires intentional or knowing conduct.  

The court also observed that a statement by counsel during a plea colloquy regarding the mens rea involved in a particular conviction is not cognizable under the modified categorical approach if the factual admission is not related to an element of the conviction.  Because a conviction for aggravated assault in Arizona can be supported by recklessness, there would be no need for defendant to admit to a higher level of intent when pleading.  Absent a narrowing language in the plea agreement or charging document that could verify such a higher level of intent, such a statement about intent during a plea colloquy is insufficient to demonstrate that a conviction rested upon the higher level of intent.

The court recognized that its decision is in tension with Third Circuit case law, which allowed for a defendant's factual admissions during a plea colloquy to resolve the issue of what level of intent his conviction rested upon.  

This case has strong language that attorneys can use to advocate against a court's consideration of factual admissions during a plea colloquy, if such admissions do not correspond to the specific allegations in a charging document or plea agreement.  It may help protect our clients against their unwitting statements that the factual circumstances of their offenses were more severe that necessarily demonstrated by the record of conviction.

The full text of US v. Marcia-Acosta can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/23/13-10475.pdf