United States v. Vincent Sanchez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50236
Plaintiff-Appellee, D.C. Nos.
5:19-cr-00283-RGK-1
v. 5:19-cr-00283-RGK
VINCENT JAMES SANCHEZ, AKA
Vincent Sanches, AKA Enrique Sanchez, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted November 17, 2021
Pasadena, California
Before: WARDLAW, PARKER,** and HURWITZ, Circuit Judges.
Vincent Sanchez was convicted for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). In sentencing, the district court found that
Sanchez’s prior conviction for assault with a semi-automatic firearm under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
California Penal Code § 245(b) was a “crime of violence” under U.S.S.G.
§ 4B1.2(a)(1). Sanchez challenges that finding, but we affirm the sentence.
1. We have long held that assaults under other subdivisions of California
Penal Code § 245 are categorically crimes of violence. See United States v. Heron-
Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (involving assault with a firearm in
violation of California Penal Code § 245(a)(2)); United States v. Grajeda, 581 F.3d
1186, 1197 (9th Cir. 2009) (involving assault with a deadly weapon other than a
firearm in violation of California Penal Code § 245(a)(1)). Under those cases,
assault with a semi-automatic firearm in violation of § 245(b) is plainly also a crime
of violence. See People v. Martinez, 208 Cal. App. 4th 197, 199 (2012) (explaining
that the elements necessary for conviction under § 245(b) are the same as § 245(a)(2)
except that subsection (b) requires the weapon to be a “semiautomatic firearm,”
while (a)(2) includes any “firearm”).
2. Sanchez argues, however, that the Supreme Court’s recent decision in
Borden v. United States, 141 S. Ct. 1817 (2021), abrogates our precedent. We
disagree. Borden held that a criminal offense is not a violent felony under the Armed
Career Criminal Act (“ACCA”)1 “if it requires only a mens rea of recklessness—a
less culpable mental state than purpose or knowledge.” Id. at 1821–22. The Borden
1
The “violent felony” elements clause of the ACCA is identical to the elements
clause of the “crime of violence” Guidelines provision at issue here. Compare 18
U.S.C. § 924(e)(2)(B)(i), with U.S.S.G. § 4B1.2(a)(1).
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plurality explained that this requirement is rooted in the definition of the generic
federal crime provision that requires force be used “against” a person in a targeted
way that is “opposed to or directed at another.” Id. at 1827. Conviction for assault
under California law requires proof that a defendant’s conduct was targeted or
directed at the person of another with a mens rea greater than recklessness. See Cal.
Penal Code § 240 (“An assault is an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.”); People v. Williams, 26 Cal.
4th 779, 790 (2001) (requiring “an intentional act and actual knowledge of those
facts sufficient to establish that the act by its nature will probably and directly result
in the application of physical force against another”). Borden does not require more.
See Amaya v. Garland, 15 F.4th 976, 983 (9th Cir. 2021) (quoting Borden, 141 S.
Ct. at 1826) (noting that, under Borden, the ACCA definition of a violent felony
“covers purposeful and knowing acts,” and rejecting the argument that a crime of
violence requires proof of specific intent).
AFFIRMED.
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