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