Gomez-Hernandez

Miguel Angel Gomez-Hernandez (“Gomez-Hernandez”) appeals the forty-one-month sentence imposed by the district court following his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326 (a), enhanced by 8 U.S.C. § 1326 (b)(2). He challenges the district court’s determination that his prior Arizona state court conviction for attempted aggravated assault is a crime of violence, and the resulting sixteen-level sentencing enhancement under the U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A)(ii).

Gomez-Hernandez’s principal contention on appeal is that his attempted aggravated assault conviction is not a crime of violence because completed aggravated assault under Arizona law encompasses a lesser mens rea than the generic definition of aggravated assault (ordinary recklessness rather than extreme indifference recklessness). But he was convicted of attempted aggravated assault and, under Arizona law, attempted aggravated assault cannot be based on this lesser mens rea. In essence, Gomez-Hernandez would have us ignore his crime of conviction and, instead, consider each statute underlying his conviction in isolation.

The Supreme Court has rejected…