United States of America v. Vincent Sanchez AKA Vincent Sanches, AKA Enrique Sanchez

San Francisco, CA - Criminal defense lawyer represented defendant with being a felon in possession of a firearm, and assault with a semi-automatic firearm charges.

1. We have long held that assaults under other subdivisions of California

Penal Code § 245 are categorically crimes of violence. See United States v. HeronSalinas, 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).

3

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