10th Foregoes Categorical Analysis of "Enumerated" Crime in Reentry Case

US v. Machado-Delgado, No. 06-2303, 4/3/08 - 16-level enhancement for reentry defendant who had previously been deported following his Arizona conviction for aggravated assault affirmed because prior 10th precedents establish that since aggravated assault is an enumerated crime of violence under USSG Sec. 2L1.2, n. 1(B)(iii), which are always classified as crimes of violence, regardless of whether they have as an element the use, attempted use or threatened use of physical force against the person of another.

Such a conclusion would seem to be contrary to the analysis of the Supreme Court's decisions in Taylor and Shepard. Taylor made it clear that just because a state calls something "burglary," it ain't necessarily so for federal criminal law purposes. Rather, the elements of the offense need to be analyzed to determine whether they include the elements of generic burglary, considering such sources as common law and the Model Penal Code. The Tenth's decision shortcuts this analysis and erroneously accepts the state's designation of the offense at face value. This is an issue ripe for cert.