New Jersey Third Degree Aggravated Assault Not a § 2L1.2 Crime of Violence
United States v. Martinez-Flores, No. 11-41375 (June 19, 2013) (Stewart, Benavides, Higginson) (per curiam)
The difference between New Jersey Third Degree Assault, N.J. Stat. Ann. § 2C:12-1b(7), and aggravated assault under the Model Penal Code is the injury. The New Jersey statute only requires "significant bodily injury," something that does not arise to serious bodily injury and could include an eye injury only lasting a few days. In contrast, the MPC requires "serious bodily injury," defining that as "bodily injury which creates a substantial risk of death or causing serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." The panel determined that the New Jersey statute was broader than the MPC definition of aggravated assault because the New Jersey statute included injuries that did not meet the MPC definition of "serious bodily injury." Thus, the conviction was not categorically a crime of violence under § 2L1.2, and the panel vacated the judgment and remanded for sentencing.
Other things to note:
The Fifth Circuit previously held, in a published decision, that it was not plain error for the district court to determine that New Jersey Third Degree Assault was a crime of violence under § 2L1.2. United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). Nevertheless, Martinez-Flores’ attorney objected to the sentencing enhancement and won on de novo review before the Fifth Circuit. So, be sure to distinguish between plain error and de novo review decisions when deciding whether an issue is foreclosed by precedent.
Also, the panel stated in a footnote that the new plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), does not apply to determining whether an aggravated assault conviction is an enumerated offense. To support this proposition, the panel cites footnote 17 of the Rodriguez opinion. While that footnote states that precedent regarding "aggravated assault" remains intact, the premise is that offense categories defined at common law remain intact. Whether or not aggravated assault is an offense defined at common law may be a trickier question than the Fifth Circuit opinions have led us to believe thus far, so feel free to keep that line of argument open as well.
The difference between New Jersey Third Degree Assault, N.J. Stat. Ann. § 2C:12-1b(7), and aggravated assault under the Model Penal Code is the injury. The New Jersey statute only requires "significant bodily injury," something that does not arise to serious bodily injury and could include an eye injury only lasting a few days. In contrast, the MPC requires "serious bodily injury," defining that as "bodily injury which creates a substantial risk of death or causing serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." The panel determined that the New Jersey statute was broader than the MPC definition of aggravated assault because the New Jersey statute included injuries that did not meet the MPC definition of "serious bodily injury." Thus, the conviction was not categorically a crime of violence under § 2L1.2, and the panel vacated the judgment and remanded for sentencing.
Other things to note:
The Fifth Circuit previously held, in a published decision, that it was not plain error for the district court to determine that New Jersey Third Degree Assault was a crime of violence under § 2L1.2. United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). Nevertheless, Martinez-Flores’ attorney objected to the sentencing enhancement and won on de novo review before the Fifth Circuit. So, be sure to distinguish between plain error and de novo review decisions when deciding whether an issue is foreclosed by precedent.
Also, the panel stated in a footnote that the new plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), does not apply to determining whether an aggravated assault conviction is an enumerated offense. To support this proposition, the panel cites footnote 17 of the Rodriguez opinion. While that footnote states that precedent regarding "aggravated assault" remains intact, the premise is that offense categories defined at common law remain intact. Whether or not aggravated assault is an offense defined at common law may be a trickier question than the Fifth Circuit opinions have led us to believe thus far, so feel free to keep that line of argument open as well.
Labels: 1326, 2L1.2, Taylor/Shepard
posted by Kristin (Connor) Kimmelman at 12:00 PM
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