The U.S. Court of Appeals for the Fifth Circuit held that a conviction for aggravated assault in Arkansas, Ark. Code § 5-13-204(a)(1), is not a crime of violence. United States v. Esparza-Perez, No. 11-50090, slip op. (5th Cir. May 14, 2012) (Garza, Dennis, and Higginson, JJ.). Judge Higginson wrote the panel’s decision.
This case involved an individual convicted of attempted illegal reentry under INA § 276. Had the prior conviction for Arkansas aggravated assault been deemed a crime of violence, Esparza-Perez would have been subject to a sixteen level sentencing enhancement. Esparza-Perez, No. 11-50090, slip op. at 1.
Though the U.S. Sentencing Guidelines’ definition of crime of violence is not identical to the definition used by the INA, there is substantial overlap in a key regard that I will highlight here. The commentary to § 2L1.2 of the Sentencing Guidelines explains that a crime of violence includes “any 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.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). [According to Fifth Circuit precedent, this definition is binding even though it appears in the commentary. Esparza-Perez, No. 11-50090, slip op. at 2 n.3 (discussing United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002)).]
For its part, the INA’s definition of crime of violence—contained at 18 U.S.C. § 16(b)—uses identical language with the exception that the INA definition includes force used against the property of another whereas the Sentencing Guidelines version is limited to force used against the person of another. This is an irrelevant distinction for purposes of this case.
The court decided the case by focusing on the part of the Sentencing Guidelines definition that’s different from the INA definition. Nonetheless, it explained that the Arkansas offense is not a crime of violence under the section that’s almost identical to the INA’s definition because it does not require proof of an assault as that crime is generally defined—i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person. Esparza-Perez, No. 11-50090, slip op. at 7. Accordingly, Arkansas aggravated assault is not a COV under the Sentencing Guidelines clause that uses a definition that is in all relevant parts identical to the INA’s definition.
I should add that the court noted that the Arkansas aggravated assault statute is divisible. Esparza-Perez, No. 11-50090, slip op. at 4. It identified the section under which Esparza-Perez was convicted, however, and only analyzed that provision. Esparza-Perez, No. 11-50090, slip op. at 4.