FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUBEN SAHAGUN-GALLEGOS, AKA

Ruben Gallegos Sahagun, AKA

Ruben Sahugun-Gallegos,

Defendant-Appellant.

No. 13-10095

D.C. No.

4:12-cr-01649-

DCB-DTF-1

OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

March 13, 2015—San Francisco, California

Filed April 10, 2015

Before: John T. Noonan, William A. Fletcher,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 UNITED STATES V. SAHAGUN-GALLEGOS

SUMMARY*

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which the defendant pleaded guilty

to illegal re-entry in violation of 8 U.S.C. § 1326.

As agreed by the parties, the panel held that remand is

required because, in light of a post-sentencing amendment to

the application notes to U.S.S.G. § 3E1.1, the Government

improperly withheld a motion for a third-level reduction for

acceptance of responsibility.

Because the issue will reoccur at resentencing, the panel

addressed the applicability of a 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii) in order to provide guidance on

remand. The panel wrote that a sentencing court conducting

the modified categorical approach may not, consistent with

Descamps v. United States, 133 S. Ct. 2276 (2013), rely on a

defense attorney’s statement of the factual basis for a guilty

plea and use the process of elimination to determine which

subsection of a divisible statute the defendant pleaded guilty

to violating. The panel wrote that it was therefore error for the

district court to apply the enhancement on the ground that the

defendant’s prior conviction for aggravated assault with a

deadlyweapon in violation of Arizona Revised Statutes § 13-

1204(A)(2) was a “crime of violence,” in reliance on the

defense attorney’s statement of the factual basis for the guilty

plea, where the documents submitted by the Government do

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SAHAGUN-GALLEGOS 3

not establish that the defendant pleaded guilty to the elements

of A.R.S. § 13-1203(A)(2), the one subsection of the Arizona

statute defining “assault” that is a match to the generic “crime

of violence.”

COUNSEL

Davina T. Chen (argued), Law Office of Davina T. Chen,

Glendale, California, for Defendant-Appellant.

Robert A. Fellrath (argued), Assistant United States Attorney,

John S. Leonardo, United States Attorney, Robert L. Miskell,

Appellate Chief, and Christina M. Cabanillas, Assistant

United States Attorney, United States Attorney’s Office,

Tucson, Arizona, for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

We consider in this case whether, consistent with

Descamps v. United States, 133 S. Ct. 2276 (2013), a

sentencing court conducting the modified categorical

approach may rely on a defense attorney’s statement of the

factual basis for a guilty plea and use the process of

elimination to determine which subsection of a divisible

statute the defendant pleaded guilty to violating. We

conclude that it may not, and we vacate and remand for

resentencing.
4 UNITED STATES V. SAHAGUN-GALLEGOS

BACKGROUND

Ruben Sahagun-Gallegos was deported to Mexico in

2006. He returned to the United States, and in 2008 he

pleaded guilty in Pima County Superior Court to aggravated

assault with a deadly weapon in violation of Arizona Revised

Statutes (A.R.S.) § 13-1204(A)(2). Shortly after his prison

term began, he was released to the custody of Immigration

and Customs Enforcement, convicted of illegal re-entry in

federal court, and deported.

Sahagun-Gallegos again returned to the United States. In

August 2012, he was indicted in federal court for illegal reentry in violation of 8 U.S.C. § 1326 (enhanced by 8 U.S.C.

§ 1326(b)(1)). He pleaded guilty to the indictment without a

plea agreement.

Before sentencing, a probation officer prepared a

presentence investigation report (PSR). The PSR determined

Sahagun-Gallegos’s base offense level under the Sentencing

Guidelines was 8. The PSR recommended a 16-level

enhancement based on its conclusion that Sahagun-Gallegos’s

aggravated assault conviction qualified as a felony “crime of

violence.” After a 2-level deduction for acceptance of

responsibility, the PSR calculated the total offense level as

22. According to the PSR, “[t]he government indicated a

motion for the third-level reduction for acceptance of

responsibility will be made if the defendant waives his appeal

rights.”

The Government submitted three documents pertaining to

Sahagun-Gallegos’s aggravated assault conviction in support

of the 16-level enhancement: the plea agreement, the plea

hearing transcript, and the grand jury transcript. Neither
UNITED STATES V. SAHAGUN-GALLEGOS 5

Sahagun-Gallegos nor the Government filed objections to the

PSR.

At sentencing, the district court inquired whether

Sahagun-Gallegos’s counsel had looked carefully at the 16-

level enhancement. Counsel responded that she believed,

based on the plea hearing transcript from the 2008 conviction,

that Sahagun-Gallegos’s aggravated assault conviction

qualified as a “crime of violence” under the Sentencing

Guidelines. Counsel also stated that Sahagun-Gallegos was

not waiving his appeal rights in exchange for a third-level

reduction for acceptance of responsibility.

The district court accepted the PSR’s Guidelines

calculation. Based on a total offense level of 22 and a

criminal history category of IV, the court determined the

Guidelines range was 63 to 78 months’ imprisonment. The

court varied the sentence downward and imposed a sentence

of 48 months’ imprisonment, followed by a three-year term

of supervised release. The court explained that after serving

this sentence, Sahagun-Gallegos would be deported.

Sahagun-Gallegos timely appealed his sentence, but his

attorney filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and requested permission to withdraw.1

A panel of our court conducted an independent review of the

record and identified two potentially arguable issues for

direct appeal: (1) whether the district court plainly erred by

1

In Anders, the Supreme Court held: “[I]f counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw. That request must,

however, be accompanied by a brief referring to anything in the record

that might arguably support the appeal.” 386 U.S. at 744.
6 UNITED STATES V. SAHAGUN-GALLEGOS

applying the 16-level enhancement based on SahagunGallegos’s aggravated assault conviction; and (2) whether the

Government improperly withheld a motion for a third-level

reduction for acceptance of responsibility on the ground that

Sahagun-Gallegos refused to waive his appeal rights. The

panel granted the motion to withdraw, but directed that a new

attorney be appointed for Sahagun-Gallegos.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a). We review de novo the district court’s

interpretation of the Sentencing Guidelines. United States v.

Swank, 676 F.3d 919, 921 (9th Cir. 2012). “We have

previously noted an intracircuit conflict as to whether the

standard of review for application of the Guidelines to the

facts is de novo or abuse of discretion.” Id. at 921–22. We

need not resolve that conflict here because, as in Swank,

“[t]he choice of standard . . . does not affect the outcome of

this case.” See id. at 922.

DISCUSSION

I. Remand is required because the Government

improperly withheld a motion for a third-level

reduction for acceptance of responsibility.

Under § 3E1.1(a) of the Sentencing Guidelines, a

defendant is entitled to have his total offense level decreased

by 2 if he “clearly demonstrates acceptance of responsibility

for his offense.” Section 3E1.1(b) provides:

If the defendant qualifies for a decrease under

subsection (a), the offense level determined
UNITED STATES V. SAHAGUN-GALLEGOS 7

prior to the operation of subsection (a) is level

16 or greater, and upon motion of the

government stating that the defendant has

assisted authorities in the investigation or

prosecution of his own misconduct by timely

notifying authorities of his intention to enter

a plea of guilty, thereby permitting the

government to avoid preparing for trial and

permitting the government and the court to

allocate their resources efficiently, decrease

the offense level by 1 additional level.

The district court reduced Sahagun-Gallegos’s offense

level by 2 because he clearly demonstrated acceptance of

responsibility. The PSR indicated the Government would

have moved for a third-level reduction if Sahagun-Gallegos

had waived his appeal rights.

While Sahagun-Gallegos’s appeal was pending, the

application notes to § 3E1.1 were amended to clarify that

“[t]he government should not withhold [a motion for a thirdlevel reduction] based on interests not identified in § 3E1.1,

such as whether the defendant agrees to waive his or her right

to appeal.” U.S. Sentencing Guidelines Manual § 3E1.1 cmt.

n.6 (2014). The Government acknowledges that this revision

applies retroactively to defendants whose cases were pending

on direct appeal, and that Sahagun-Gallegos’s “sentence

should be vacated and remanded so that the district court can

assess whether [he] should receive a third point [for]

acceptance of responsibility.” We therefore vacate SahagunGallegos’s sentence and remand for resentencing.
8 UNITED STATES V. SAHAGUN-GALLEGOS

II. Applicability of the 16-level enhancement based on

Sahagun-Gallegos’s aggravated assault conviction.

Section 2L1.2(a) of the Sentencing Guidelines calls for a

base offense level of 8 for a defendant convicted of illegal reentry. Section 2L1.2(b) calls for a 16-level enhancement if

the defendant has a prior felony conviction for “a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of

violence” is defined to include “any . . . offense under federal,

state, or local law that has as an element the use, attempted

use, or threatened use of physical force against the person of

another.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt.

n.1(B)(iii) (2014).

Sahagun-Gallegos argues his 2008 aggravated assault

conviction does not qualify as a “crime of violence,” but he

did not make this argument before the district court. Under

these circumstances, this court’s review ordinarily would be

for plain error. United States v. Guzman-Mata, 579 F.3d

1065, 1068 (9th Cir. 2009). “Plain error is ‘(1) error, (2) that

is plain, and (3) that affects substantial rights.’” Id. (quoting

United States v. Rodriguez-Lara, 421 F.3d 932, 948 (9th Cir.

2005)).2 But because we vacate Sahagun-Gallegos’s sentence

for the reasons discussed in the previous section, and because

the applicability of the 16-level enhancement is an issue that

will reoccur at resentencing, we address the applicability of

the enhancement in order to provide guidance to the district

court on remand.

 

2

If a court finds plain error it “may only reverse if the error ‘seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.’” Guzman-Mata, 579F.3d at 1068 (quotingRodriguez-Lara,

421 F.3d at 948–49).
UNITED STATES V. SAHAGUN-GALLEGOS 9

A. The statute of conviction is overbroad and

divisible.

We employ the “categorical approach” set forth in Taylor

v. United States, 495 U.S. 575 (1990), to determine whether

a prior state court conviction qualifies as a “crime of

violence” under the Sentencing Guidelines. Under the Taylor

framework, we determine whether the statute of conviction is

categorically a “crime of violence” by comparing the

elements of the statute of conviction with the generic federal

definition. United States v. Caceres-Olla, 738 F.3d 1051,

1054 (9th Cir. 2013). If the statute of conviction is broader

than the generic federal definition, we must determine

whether the statute of conviction is divisible. Alvarado v.

Holder, 759 F.3d 1121, 1126 (9th Cir. 2014). A divisible

statute is one that “‘comprises multiple, alternative versions

of the crime,’ at least one of which ‘correspond[s] to the

generic offense.’” Id. (alteration in original) (quoting

Descamps, 133 S. Ct. at 2284–85).

If the statute of conviction is divisible, then under the

“modified categorical approach” we may examine a limited

class of judiciallynoticeable documents to determine whether

the alternative corresponding to the generic offense was the

basis of the conviction. United States v. GonzalezMonterroso, 745 F.3d 1237, 1241 (9th Cir. 2014). When a

defendant’s conviction was based on a guilty plea, such

documents include the “charging document, written plea

agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). 

The documents must show that the defendant “necessarily

admitted [the] elements of the generic offense.” Id. at 26; see
10 UNITED STATES V. SAHAGUN-GALLEGOS

also United States v. Marcia-Acosta, No. 13-10475, — F.3d

—, 2015 WL 1283771, at *4–5 (9th Cir. Mar. 23, 2015).

In this case, Sahagun-Gallegos was convicted of violating

A.R.S. § 13-1204(A)(2). A.R.S. § 13-1204(A)(2) provides:

“A person commits aggravated assault if the person commits

assault as prescribed by § 13-1203” and “the person uses a

deadly weapon or dangerous instrument.” A.R.S. § 13-

1203(A) defines “assault” as follows:

A person commits assault by:

1. Intentionally, knowingly or recklessly

causing any physical injury to another

person; or

2. Intentionally placing another person in

reasonable apprehension of imminent

physical injury; or

3. Knowingly touching another person with

the intent to injure, insult or provoke such

person.

The parties agree that A.R.S. § 13-1203(A) is overbroad

because the definition of “assault” in subsection

(1) encompasses acts done with ordinary recklessness,

whereas a “crime of violence” requires a mens rea of at least

heightened recklessness. See United States v. GomezHernandez, 680 F.3d 1171, 1175 (9th Cir. 2012). The parties

also agree that A.R.S. § 13-1203(A) is divisible. See United

States v. Cabrera-Perez, 751 F.3d 1000, 1004–05 (9th Cir.
UNITED STATES V. SAHAGUN-GALLEGOS 11

2014).3 Finally, the parties agree that, under Cabrera-Perez,

an aggravated assault predicated on A.R.S. § 13-1203(A)(2)

is a “crime of violence,” specifically, an offense “that has as

an element the use, attempted use, or threatened use of

physical force against the person of another.”4

B. The documents submitted by the Government in

support of the 16-level enhancement do not show

that Sahagun-Gallegos admitted the elements of

A.R.S. § 13-1203(A)(2).

The parties dispute whether the three documents

submitted by the Government in support of the 16-level

enhancement are sufficient to establish that Sahagun-Gallegos

pleaded guilty to aggravated assault predicated on A.R.S.

§ 13-1203(A)(2), as opposed to A.R.S. § 13-1203(A)(1) or

(3).

3 After Cabrera-Perez was decided, our court clarified that under the

Supreme Court’s decision in Descamps, courts “determine whether a

disjunctively worded state statute is divisible or not by looking to whether

the state treats the parts of the statute on opposite sides of the ‘or’ as

alternative elements or alternative means.” Rendon v. Holder, 764 F.3d

1077, 1088 (9thCir. 2014). Arizona treats the subsections of A.R.S. § 13-

1203(A) as three different crimes, each comprised of different elements. 

See State v. Freeney, 219 P.3d 1039, 1042 (Ariz. 2009) (en banc); State

v. Delgado, 303 P.3d 76, 82–83 (Ariz. Ct. App. 2013).

4 At oral argument, the Government argued that A.R.S. § 13-1203(A)(2)

is a general intent crime, and therefore it is sufficient for a conviction that

a defendant intended to point the weapon, as opposed to “[i]ntentionally

placing another person in reasonable apprehension of imminent physical

injury.” See Ariz. Rev. Stat. § 13-1203(A)(2). This argument was not

included in the Government’s briefing, but Sahagun-Gallegos’s attorney

correctly responded that if A.R.S. § 13-1203(A)(2) were a general intent

crime, application of the enhancement would fail because the statute

would be overbroad.
12 UNITED STATES V. SAHAGUN-GALLEGOS

The plea agreement provides that on or about November

1, 2007, Sahagun-Gallegos committed assault with a firearm,

in violation of A.R.S. § 13-1204(A)(2) (the aggravated

assault statute). It does not specify which subsection of

A.R.S. § 13-1203(A) was violated.

At the 2008 state court change of plea hearing, SahagunGallegos confirmed that he was pleading guilty to

“aggravated assault, a class 3 felony.” The superior court

then asked Sahagun-Gallegos’s attorney to provide a factual

basis for the plea, and Sahagun-Gallegos’s attorney

responded:

Around this time period Mr. Sahagun was

having marital problems with his wife and

began drinking heavily. And around

November 1st of last year here in Pima

County he was going through the drive-thru of

a fast-food restaurant and had during his

drunken state pointed a gun at the lady who

was the cashier who was present. . . . And

that was the basis of the [aggravated assault

count].

Sahagun-Gallegos’s attorney also agreed that the superior

court could consider the grand jury transcript as part of the

factual basis for the plea.5

5

In his briefing before this court, Sahagun-Gallegos notes that “the

[2008] plea agreement incorporated the grand jury transcript within the

factual basis.” He does not contest whether the 2008 grand jury transcript

is Shepard compliant.
UNITED STATES V. SAHAGUN-GALLEGOS 13

At the grand jury proceeding, a Tucson police detective

testified that Sahagun-Gallegos admitted in an interview to

pulling his car up to the drive-through window of a Jack In

The Box restaurant and pointing a sawed-off shotgun at the

employee working there.

None of the three documents submitted by the

Government cites a specific subsection of A.R.S. § 13-

1203(A) or quotes the elements of a specific subsection. The

Government suggests the court may examine the factual basis

provided by Sahagun-Gallegos’s attorney at the change of

plea hearing and use the process of elimination to deduce that

Sahagun-Gallegos pleaded guilty to A.R.S. § 13-1203(A)(2). 

More specifically, the Government argues the factual basis

does not support a conviction under A.R.S. § 13-1203(A)(1)

or (3) because those types of assault require physical injury

or touching—i.e., conduct that was not part of the factual

basis provided by Sahagun-Gallegos’s attorney.

We reject the Government’s argument for two reasons. 

First, both this court and the Supreme Court have held that

the factual basis for a plea must be assented to by the

defendant for a sentencing court to rely on it when conducting

the modified categorical approach, see Shepard, 544 U.S. at

26; Alvarado, 759 F.3d at 1132, and there is no indication in

the plea hearing transcript that Sahagun-Gallegos assented to

the factual basis provided by his attorney, much less to the

police detective’s grand jury testimony.

Second, even if Sahagun-Gallegos had assented to the

factual basis provided by his attorney, the Supreme Court

emphasized in Descamps that the modified categorical

approach “retains the categorical approach’s central feature:

a focus on the elements, rather than the facts, of a crime.” 
14 UNITED STATES V. SAHAGUN-GALLEGOS

133 S. Ct. at 2285; see also Marcia-Acosta, 2015 WL

1283771, at *4 (“Consideration of only the elements of the

crime of conviction is the pivotal concept in applying the

modified categorical analysis.” (internal quotation marks

omitted)). When conducting the modified categorical

approach, we may not examine a transcript “to try to discern

what . . . a plea proceeding revealed[] about the defendant’s

underlying conduct.” Descamps, 133 S. Ct. at 2288. Rather,

we are limited to assessing whether the defendant

“‘necessarily admitted’” the elements of the particular

statutory alternative that is a categorical match to the generic

federal offense. See id. at 2284 (quoting Shepard, 544 U.S.

at 26).

Here, the documents submitted by the Government do not

demonstrate that Sahagun-Gallegos admitted the elements of

A.R.S. § 13-1203(A)(2), most notably the “intent” element. 

The Government argues this does not matter because

Sahagun-Gallegos’s conduct, as detailed by his attorney,

“could only have violated § 13-1203(A)(2), which, in turn,

required intentional conduct.” But the Government’s

argument asks us to adopt an approach that Descamps

expressly forbids, namely, to “discover what [SahagunGallegos] actually did,” and then use the facts, as opposed to

the elements, of his prior conviction to determine whether he

committed a “crime of violence.” See id. at 2287–88.

The fact-based inquiry advocated by the Government is

particularly inappropriate in the plea bargaining context. 

Descamps cautioned that statements of fact made during a

change of plea hearing may be “downright wrong” because a

defendant “often has little incentive to contest facts that are

not elements of the charged offense.” Id. at 2289. “[W]hen

a defendant pleads guilty to a crime, he waives his right to a
UNITED STATES V. SAHAGUN-GALLEGOS 15

jury determination of only that offense’s elements; whatever

he says, or fails to say, about superfluous facts cannot license

a later sentencing court to impose extra punishment.” Id. at

2288. We recently reiterated these principles in MarciaAcosta, and held that a defense attorney’s factual-basis

statement that the defendant acted “intentionally” in violating

A.R.S. § 13-1203(A)(1) was insufficient to show that the

defendant pleaded guilty to the mens rea element of generic

aggravated assault. 2015 WL 1283771, at *5–6, 9.6

6

In Marcia-Acosta, the parties agreed the defendant was convicted of

violating A.R.S. § 13-1203(A)(1), which prohibits intentionally,

knowingly, or recklessly causing physical injury. Because the defendant

waived any argument that A.R.S. § 13-1203(A)(1) is not divisible, we

analyzed that subsection under the modified categorical approach. 2015

WL 1283771, at *4. We observed that the defense attorney’s statement

that the defendant acted intentionally was extraneous to the conviction. 

Id. at *6. We also indicated that there may be circumstances in which a

factual-basis statement “negates all possible statutory alternatives” and is

therefore sufficient to establish that a defendant pleaded guilty to the

generic crime. Id. at *9 & n.10. As an example, we hypothesized a

situation in which “a defendant pleading guilty to burglary stated, as part

of his factual basis, that he ‘entered a house, not a boat.’” Id. at *9 n.10.

In a letter filed pursuant to Rule 28(j) of the Federal Rules of

Appellate Procedure, the Government argues Sahagun-Gallegos’s

attorney’s factual-basis statement negates all possible statutory

alternatives, and therefore the Government’s suggested approach is

consistent with Marcia-Acosta. If Sahagun-Gallegos had personally

assented to the elements of A.R.S. § 13-1203(A)(2), as in the MarciaAcosta burglary example, we might agree with the Government. But

because Sahagun-Gallegos did not assent to the factual basis provided by

his attorney, and because the factual basis did not affirmatively set forth

the mens rea element of A.R.S. § 13-1203(A)(2), the Government’s

argument is contrary to Descamps’s and Marcia-Acosta’s clear direction

to focus on the elements, as opposed to the facts, of the underlying

conviction.
16 UNITED STATES V. SAHAGUN-GALLEGOS

Because the modified categorical approach does not

permit courts to substitute “a facts-based inquiry for an

elements-based one,” Descamps, 133 S. Ct. at 2293, we

conclude it was error for the district court to apply the 16-

level enhancement based on Sahagun-Gallegos’s aggravated

assault conviction. The documents submitted by the

Government do not establish that Sahagun-Gallegos pleaded

guilty to the elements of A.R.S. § 13-1203(A)(2), the

statutory alternative that is a match to the generic “crime of

violence.”

CONCLUSION

For the foregoing reasons, we VACATE SahagunGallegos’s sentence and REMAND for resentencing.