CA5 on crime of violence: USA v. Esparza-Perez

CA5 on crime of violence: USA v. Esparza-Perez

"Esparza-Perez’s conviction [Ark. Code § 5-13-204 (2003) agg. assault] does not constitute a crime of violence as the enumerated offense of “aggravated assault” for essentially the same reason the government concedes it does not, under existing precedent, constitute a crime of violence under the residual clause. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (“‘Crime of violence’ means . . . any . . . offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another”). Assault, as commonly understood, by its nature requires proof of the use, attempted use, or threatened use of offensive contact against another person. Esparza-Perez was not convicted of “aggravated assault” for sentencing enhancement purposes because his crime of conviction lacks proof of an underlying assault. Because the government has not shown that such error was harmless under our precedent, Esparza-Perez’s sentence is VACATED and we REMAND this case for resentencing." - USA v. Esparza-Perez, May 14, 2012.