State's Label Is Not Determinative of Whether Prior Conviction is COV

U.S. v. Gastelum-Laurean, 2010 WL 1242804 (4/1/10) (unpub'd) - A USSG § 2L1.2-crime-of-violence victory with the help of a government concession of error: The district court erred when it held that an Arizona aggravated assault was a crime of violence based solely on the aggravated-assault label. To be a generic aggravated assault the offense must have as an element either the causing of serious bodily injury or the use of a dangerous weapon. Arizona aggravated assault can be committed without those elements, e.g. while the victim is physically restrained or her/his capacity to resist substantially impaired, causing any physical injury or placing the person in reasonable apprehension of physical injury or touching with the intent to injure, insult or provoke. The government conceded it could not prove the offense had as an element the use, attempted use or threatened use of force, presumably [it wasn't explained] because the assault could be committed by a limited amount of force or by causing injury with only reckless mens rea or causing fear-apprehension without threatening force.