Assault with Intent to Commit a Felony is Generic "Aggravated Assault" for COV Purposes

United States v. Rojas-Gutierrez, No. 06-50584 (5th Cir. Dec. 13, 2007) (Garwood, Jolly, Stewart)

Rojas, who pled guilty to illegal reentry, had a prior conviction under Cal. Penal Code § 220(a), which criminalizes assault with the intent to commit certain felonies (mayhem, rape, sodomy, oral copulation, or three other sex offenses). The court characterized § 220(a) as "assault with intent to commit a felony," and then held that to be equivalent to "aggravated assault," an enumerated crime of violence subject to a 16-level enhancment under guideline §2L1.2. In so holding, the court relied principally on LaFave and Black's:

Professor LaFave’s definition of aggravated assault notes that “[i]n all jurisdictions statutes punish, more severely than simple assault, such aggravated assaults as ‘assault with intent to murder’ (or to kill or rob or rape) and ‘assault with a dangerous [or deadly] weapon.’” 2 Wayne R. LaFave, Substantive Criminal Law, § 16.3(d). The definition of aggravated assault provided in Black’s Law Dictionary similarly notes that aggravated assault is a “[c]riminal assault accompanied by circumstances that make it more severe, such as the intent to commit another crime or the intent to cause serious bodily injury, esp. by using a deadly weapon.” Black’s Law Dictionary (8th ed. 2004).

The court also said § 220(a) was essentially the same as the Model Penal Code definition of aggravated assault because, despite minor differences, they both "define aggravated assault as an assault that attempts to cause serious injury to another."

Perhaps recognizing the troubling breadth of this holding, the opinion also contains this qualifier: "We do not decide whether every assault with intent to commit another crime is an aggravated assault under § 2L1.2. That is, we do not hold that an assault with intent to commit some truly insignificant offense would be an aggravated assault."