New Mexico Aggravated Assault With a Deadly Weapon is Categorically a Crime of Violence; Sixth Circuit's Contrary Decision Rejected

U.S. v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016): New Mexico aggravated assault with a deadly weapon is categorically a crime of violence under the former version of U.S.S.G. § 2L1.2. N.M.S.A. 1978, § 30-3-2 is divisible because it sets out alternative elements for aggravated assault in three subsections. The defendant was convicted under subsection (A), which prohibits “unlawfully assaulting or striking at another with a deadly weapon.” Both parties agreed that the offense is broader than generic aggravated assault, thus the issue was whether the offense had an element of the use, attempted use, or threatened use of physical force against the person of another. In this context, “physical force” means violent force that is capable of causing pain or injury. The defendant contended his offense did not categorically include an element of use of force. He pointed to N.M.S.A. 1978, § 30-3-1(C), which includes in the definition of “assault” “the use of insulting language toward another impugning his honor, delicacy or reputation,” and argued that assaulting someone by using insulting language while possessing a deadly weapon would qualify as aggravated assault but would lack any element of use of physical force. The panel rejected the argument, relying on New Mexico’s pattern jury instructions on aggravated assault. All the jury instructions require that the deadly weapon be “used.” Aggravated assault with a deadly weapon cannot be committed by insulting someone while possessing a weapon; rather, the weapon itself must be used or employed. “Employing a weapon that is capable of producing death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the use of physical force, i.e., ‘force capable of causing physical pain or injury to another person.’” The Tenth Circuit rejected the contrary decision in U.S. v. Rede-Mendez, 680 F.3d 552, 560 (6th Cir. 2012).