Opinion
Submitted December 15, 2000.
D.C. No. CR 99-510 PCT-RCB
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, District Judge, Presiding.
Before BOOCHEVER, O'SCANNLAIN, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Raymond Martin Sandoval ("Sandoval") appeals the sentence imposed following his guilty plea for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court found that because Sandoval had four prior felony convictions that constituted predicate offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the "ACCA"), he was subject to a statutory maximum sentence of 15 years. We have jurisdiction over Sandoval's timely appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Sandoval argues that his 1988 aggravated assault conviction is not a "violent felony" under the ACCA. The ACCA defines a "violent felony" as "[a]ny crime punishable by imprisonment for a term exceeding one year ... that has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). To determine whether a conviction is a "violent felony" under the ACCA, we "look at the state statutory definition of the crime rather than the underlying factual circumstances...." United States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir.2000).
Sandoval asserts that, based on the facts surrounding his 1988 aggravated assault conviction, "the only subsections of the Arizona Code that could apply are § 13-1203(A)(3) and § 13-1204(A)(3)." Ariz.Rev.Stat. § 13-1203(A)(3) provides that "[k]nowingly touching another person with the intent to injure, insult, or provoke such person" constitutes assault. Ariz. Rev.Code§ 13-1204(A)(3) upgrades assault charges to aggravated assault, if the defendant "commits the assault after entering the private home of another with the intent to commit the assault." Sandoval argues that because neither section contains the elements of "use, attempted use, or threatened use of physical force," the 1988 conviction is not a "violent felony" under the ACCA.
Ariz.Rev.Stat. § 13-1203 establishes the requisite elements for a basic assault charge. If any of the factors appearing in Ariz.Rev.Stat. § 13-1204 are present, the charge is upgraded to aggravated assault.
"Physical force" is defined as "[p]ower, violence, or pressure directed against a person ... consisting in a physical act." BLACK'S LAW DICTIONARY 656 (7th ed.1999). Knowingly touching another person with the intent to injure or provoke constitutes a physical act employed to direct power, violence, or pressure against a person. Therefore, an aggravated assault conviction under § 13-1203(A)(3) is a "violent felony" under the ACCA. Accord United States v. Ceron-Sanchez, 222 F.3d 1169, 1173 (9th Cir.2000) (noting that Ariz.Rev.Stat. § 13-1203(A)(3) is a "crime of violence" under 18 U.S.C. § 16(a) because "[e]ach of the three subsections to Ariz.Rev.Stat. § 13-1203(A) requires either the use, attempted use, or threatened use of force against the person of another").
Because aggravated assault charges must first meet the elements of Ariz.Rev.Stat. § 13-1203(A), a conviction under Ariz.Rev.Stat. § 13-1204(A)(3) meets the definition of a "violent felony" under the ACCA by incorporation. See United States v. Ceron-Sanchez, 222 F.3d 1169, 1173 (9th Cir.2000).
The panel unanimously finds this case suitable for decision without oral argument.
18 U.S.C. § 16(a) defines a "crime of violence" as "an offense that has as an element the use, attempted use or threatened use of force." Although a "violent felony" is not identical to a "crime of violence," see United States v. Riley, 183 F.3d 1155, 1160 n. 16 (9th Cir.1999), because both 18 U.S.C. § 924(e)(2)(B)(i) and 18 U.S.C. § 16(a) employ identical language regarding the element of "use," Ceron-Sanchez is probative in this case.
The sentence imposed by the district court is AFFIRMED.
Because we conclude that Sandoval's 1988 Aggravated Assault conviction constitutes a "violent felony" under the ACCA, it is unnecessary to determine whether his two drug convictions arose from separate criminal episodes because only three predicate offenses are needed under § 924(e).
See Fed. R.App. P. 34(a)(2).