Argued and Submitted, Pasadena, California February 10, 2014.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-04235-LAB-1. Larry A. Burns, District Judge, Presiding.
Gary P. Burcham (argued), Burcham & Zugman, San Diego, California, for Defendant-Appellant.
Jerry A. Behnke (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, United States Attorney's Office, San Diego, California, for Plaintiff-Appellee.
Before: Jerome Farris, N. Randy Smith, and Paul J. Watford, Circuit Judges. Opinion by Judge Watford.
WATFORD, Circuit Judge:
Carlos Dominguez-Maroyoqui pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The United States Sentencing Guidelines increase the defendant's offense level for this crime when, among other things, the defendant has been convicted of an offense that's both a felony and a " crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). Section 2L1.2 of the Guidelines defines the term " crime of violence" as any of a dozen specified offenses or, alternatively, " 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." Id. cmt. n.1(B)(iii).
We must decide whether Dominguez-Maroyoqui's 1996 conviction for assaulting a federal officer in violation of 18 U.S.C. § 111(a) qualifies as a crime of violence. The district court held that it does, relying on the modified categorical approach as applied in this circuit before Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and imposed a 12-level sentencing enhancement as a result.
Section 111(a) authorizes the conviction of anyone who " forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties." 18 U.S.C. § 111(a)(1). The statute creates three separate offenses.
United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008). At the time of Dominguez-Maroyoqui's conviction, they consisted of: (1) a misdemeanor if the defendant's acts constituted " only simple assault" ; (2) a felony with a 3-year statutory maximum under § 111(a) " in all other cases" ; and (3) a felony with a 10-year statutory maximum under § 111(b) if the defendant used a deadly or dangerous weapon or inflicted bodily injury. 18 U.S.C. § 111 (1994). Dominguez-Maroyoqui pleaded guilty to the felony offense carrying a 3-year statutory maximum, which for ease of reference we'll refer to as the § 111(a) felony.
Although we've previously held that the felony under § 111(b) is a crime of violence, United States v. Juvenile Female, 566 F.3d 943, 947-48 (9th Cir. 2009), it remains an open question whether the § 111(a) felony also qualifies as a crime of violence. To resolve that question, we employ the categorical approach, meaning we look to the elements of the offense rather than the particular facts underlying the defendant's own conviction. Descamps, 133 S.Ct. at 2283; United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009). We ask whether the elements of the § 111(a) felony criminalize " a broader swath of conduct" than the conduct covered by § 2L1.2's definition of a crime of violence. Descamps, 133 S.Ct. at 2281. If that's the case, Dominguez-Maroyoqui's § 111(a) felony can't qualify as a crime of violence, even if the facts underlying his own conviction might satisfy § 2L1.2's definition. See id. at 2283. Under the categorical approach, the crime-of-violence determination " function[s] as an on-off switch" : An offense qualifies as a crime of violence " in all cases or in none." Id. at 2287.
The government doesn't contend that the § 111(a) felony matches any of the specifically enumerated offenses in § 2L1.2's definition of a crime of violence. Those offenses include " aggravated assault" --the closest analogue--but the generic version of that offense requires proof of an aggravating factor that the § 111(a) felony does not. See United States v. Gomez-Hernandez, 680 F.3d 1171, 1178 (9th Cir. 2012). The government argues that the § 111(a) felony nonetheless qualifies as a crime of violence because it's an offense that " has as an element the use, ...