NM Aggravated Assault with Deadly Weapon Is § 2L1.2 COV because No Realistic Probability of Prosecution for Least Culpable Act Argued on Appeal

United States v. Carrasco-Tercero, No. 12-51243 (5th Cir. Mar. 13, 2014) (Jones, Smith, Owen)

Carrasco-Tercero loses his argument that his 1985 New Mexico Aggravated Assault with Deadly Weapon conviction is not a U.S.S.G. § 2L1.2 crime of violence because the panel finds no realistic probability that New Mexico would prosecute someone of the least culpable act criminalized under NMSA § 30-3-2.  The statute defines assault as attempting to commit a battery upon a person; “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery”; or “use of insulting language toward another.”  Carrasco-Tercero argues that the least culpable act under § 30-3-2 would be using insulting language toward another while holding a deadly weapon and that such a crime would not be a crime of violence under the elements clause (because no element of use of force) or under the enumerated offense of aggravated assault (because broader than the generic definition of aggravated assault).

The panel acknowledges that the statute allows for such prosecution, but declines to reach Carrasco-Tercero’s conclusion—and the conclusion reached by the Sixth Circuit in United States v. Rede-Mendez, 680 F.3d 552 (6th Cir. 2012)—that § 30-3-2 is not categorically a crime of violence since the panel finds there is no “realistic probability” that someone would be prosecuted for that least culpable act.  Carrasco-Tercero did not point to any examples of someone being prosecuted in New Mexico for aggravated assault with a deadly weapon because he was yelling insults while holding a deadly weapon, and the New Mexico’s uniform jury instructions do not provide instructions for the charge of aggravated assault based on using insulting language. 

Since Carrasco-Tercero’s sole contention on appeal concerns the “insulting language” arguments, the panel affirms the judgment.  The panel does not consider whether the alternate means of committing aggravated assault under § 30-3-2 would constitute a crime of violence.  So, there may still be valid arguments against § 30-3-2 being a crime of violence under different theories.