Sunday, November 29, 2015

Case o' The Week: Something Good Comes of Jersey - Garcia-Jimenez and Federal Generic Aggravated Assault

“In Jersey anything’s legal as long as you don’t get caught.”
  Tweeter and the Monkey Man, Traveling Wilburys (Bob Dylan).

United States v. Garcia-Jimenez, 2015 WL 7292604 (9th Cir. Nov. 19, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges W. Fletcher and Bea. Admirable win for former CD Cal AFPD Davina Chen.

Facts: Garcia-Jimenez got drunk and stabbed a fellow card player. Id. at *1. He pled guilty to New Jersey agg assault. Id. The statute allowed conviction under three prongs: attempting to cause bodily injury, purposely or knowingly causing injury, or recklessly causing such injury. Id. State proceedings did not make clear which of the three prongs Garcia-Jimenez was convicted of violating. Id. He served his time, was deported, reentered, caught, and convicted of illegal reentry. Id. The PSR recommended a +16 OL increase, tagging the N.J. agg assault as a “crime of violence.” Id. The district court agreed, imposed a 46-month term, and added that if the Guideline calc was wrong, it would still find the sentence reasonable. Id. at *2-*3.

Issue(s): “Garcia–Jimenez argues that his prior conviction is not a crime of violence because: (1) contrary to the New Jersey statute, the generic federal offense of aggravated assault requires a mens rea greater than recklessness under circumstances manifesting extreme indifference to the value of human life (‘extreme indifference recklessness’); and (2) New Jersey's definition of ‘attempt,’ an element alternatively incorporated into the statute of conviction, is broader than the federal generic definition of ‘attempt.’” Id. at *1.

Held: “We hold that, for both reasons, the provision of the New Jersey statute under which Garcia–Jimenez was convicted does not qualify as federal generic aggravated assault and therefore is not a ‘crime of violence.’ Because the district court's Guidelines error was not harmless, we vacate the sentence and remand to the district court for resentencing.” Id.

Of Note: The big holding is the Court’s conclusion that a mens rea of extreme indifference recklessness is not sufficient to meet the federal generic definition of aggravated assault. Id. at *4. Judge Berzon surveys state authority, and finds that a substantial majority of jurisdictions require more than this mens rea. Id. at *5. She distinguishes the Ninth’s previous decision in Esparza-Herrera, which did not undertake the required mens rea analysis. Id. at *4; see also fn. 4 (distinguishing Gomez-Hernandez). 

Note that seventeen states do allow agg assault convictions based on this lower mens rea (see fn. 7); keep an eye out for those priors and don’t let them become +16 offense level increases.

Equally interesting is the Court’s protection of generic federal “attempt.” Id. at *6. Because New Jersey law allows an attempt conviction without satisfying the “probable desistance” test, it is broader than the generic definition – again, the prior does not qualify as a federal “aggravated assault.” Id. at *6-*7. Two very useful additions to our “generic definition” arsenal.

How to Use: Yet again the Ninth rejects the sentencing “belt and suspenders” gambit. Here, the court warned it would impose the same 46 six months if it was wrong (despite the fact that the correct guidelines are 10–16 months). Id. at *7. The Ninth ain’t buying it: “the district court’s assurance that it would have imposed a sentence three times the proper Guidelines range if its Guidelines calculation turned out to be wrong cannot, without more, cure the prejudice resulting from its incorrect Guidelines calculation.” Id. at *8. Use Garcia-Jimenez when a court tries to whitewash an incorrect guideline calc with threats of an identical § 3553(a) term.   
For Further Reading: After Johnson, the Sentencing Commission has also been wrestling with the “crime of violence” question. A proposed amendment has been posted for comment - see the pdf here

The comment period ended on Nov. 25: anticipate more news on the amendment soon. 

Steven Kalar, Federal Public Defender N.D. Cal. Website at

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