United States v. Garcia-Jimenez, No. 14-10484 (11-19-15) (Berzon with Fletcher and Bea). 

 

Reversing and remanding a +16 level increase, the 9th Circuit holds that a New Jersey's aggravated assault conviction is not a "crime of violence."  The state statute is broader than the federal generic offense: it includes "extreme recklessness or indifference." In addition, the state "attempt" definition is broader than the federal offense because it embraces solely preparatory steps and rejects the concept of "probable desistance," which means that the act will unequivocally go forward unless independent forces intervene.  The 9th also finds that the error was not harmless.  The court had said that it would sentence the defendant to 46 months, even if the prior was not a categorical COV.  The 9th stated that the length of sentence, three times as long as the guideline range if the prior was not a COV, meant that a reconsideration and resentencing was in order.  A district court's assurance that the sentence would be the same cannot cure the prejudice; cannot make the harm harmless.

 

Congrats to CJA appellate counsel Davina Chen for the win.

The decision is here:

 http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/14-10484.pdf