CANBY, Senior Circuit Judge:
Anthony L. Lawrence was convicted by a jury of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), following his involvement in a shooting in early 2008. At sentencing, the district court determined that the Armed Career Criminal Act's ("ACCA") fifteen-year mandatory minimum sentence applied in Lawrence's case. Lawrence now appeals his sentence, arguing that the government failed to prove that he had three previous qualifying convictions that would trigger the ACCA's mandatory minimum.
The ACCA provides that a person who is convicted of being a felon in possession of a firearm is subject to a fifteen-year mandatory minimum sentence if that person "has three previous convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The district court found that Lawrence previously had been convicted of not just three, but five, qualifying offenses, including two serious drug offenses and three violent felonies. Because Lawrence now concedes that the two drug convictions qualify as ACCA predicate offenses, we may affirm Lawrence's sentence if we conclude that he was convicted of at least one violent felony.
We review de novo whether a state conviction qualifies as a violent felony under the ACCA. United States v. Ankeny, 502 F.3d 829, 839 (9th Cir.2007). The ACCA defines "violent felony" to include, inter alia, "any crime punishable by imprisonment for a term exceeding one year. . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another."
To determine whether a statute "has as an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i), we first apply the "categorical approach" set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003), overruled on other grounds by Fernandez-Ruiz, 466 F.3d at 1132. Under the categorical approach, we consider only "the fact of conviction and the statutory definition of the prior offense," Taylor, 495 U.S. at 602, 110 S.Ct. 2143, not "the particular facts underlying [the] conviction[ ]," id. at 600, 110 S.Ct. 2143. "If the statute of conviction prohibits only conduct that includes the requisite use, threatened use or attempted use of force, we need not look beyond the fact of conviction to conclude that the prior offense was a crime of violence." Grajeda-Ramirez, 348 F.3d at 1125.
For reasons stated below, we hold that Lawrence's conviction for second-degree assault, in violation of Washington Revised Code section 9A.36.021(1)(a) ("Section 9A.36.021(1)(a)"), categorically qualifies as a violent felony under the ACCA. Thus, we need not decide whether Lawrence's previous Washington convictions for either third-degree assault, Wash. Rev.Code § 9A.36.031(1)(f), or felony riot, Wash. Rev.Code § 9A.84.010(1), (2)(b), qualify as ACCA predicate offenses.
Section 9A.36.021(1)(a) provides that "[a] person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree[,] . . . [i]ntentionally assaults
This is not the first time that we have considered whether Section 9A.36.021(1)(a) requires the use of physical force against the person of another. In United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005), we held that Section 9A.36.021(1)(a) defined a categorical crime of violence within the meaning of U.S.S.G. § 2L1.2. We considered it sufficient that the statute requires the reckless infliction of substantial bodily injury, an element of statutes that we had held were categorical crimes of violence in United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000), and United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir. 2003). See Hermoso-Garcia, 413 F.3d at 1089.
In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), however, the Supreme Court held that the phrase "use of physical force" requires "a higher degree of intent than negligent or merely accidental conduct." Id. at 9, 125 S.Ct. 377. Thus, driving under the influence of alcohol and causing an accidental injury did not qualify as a crime of violence. Id. at 9-10, 125 S.Ct. 377. In Fernandez-Ruiz, we interpreted Leocal also to require more than recklessness, holding that a crime of violence "must involve the intentional use of force against the person or property of another." Fernandez-Ruiz, 466 F.3d at 1132. Fernandez-Ruiz expressly overruled cases such as Ceron-Sanchez that had held that crimes of violence could include offenses requiring only the reckless use of force against someone. Fernandez-Ruiz, 466 F.3d at 1126-27, 1132. By extension, Fernandez-Ruiz has undermined the underlying reasoning of Hermoso-Garcia's holding that Section 9A.36.021(1)(a) requires the use of physical force against someone solely because of its element of reckless infliction of injury.
Nonetheless, Section 9A.36.021(1)(a) differs in an important respect from the statutes at issue in Ceron-Sanchez, Grajeda-Ramirez, and Fernandez-Ruiz. While those statutes all required reckless infliction of injury without any intentional criminal assault,
Because the Washington criminal code does not define assault, the Washington courts look to the common law for a definition. See, e.g., State v. Wilson, 125 Wn.2d 212, 883 P.2d 320, 323 (1994) (en banc). Washington courts recognize three means of accomplishing an assault: "(1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault]." Id. (internal quotation marks omitted) (bracketed alterations in Wilson).
In applying the categorical approach, "we look `at the least egregious end of the state statute's range of conduct.'" United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.2010) (brackets and citation omitted); see also Johnson, 130 S.Ct. at 1269 (looking to "the least [of a state statute's prohibited] acts" to determine whether the defendant was convicted of a violent felony). Here, the "least egregious" of the three assault modalities is the second (unlawful touching with criminal intent), which can be accomplished by merely spitting on another person. See State v. Humphries, 21 Wn.App. 405, 586 P.2d 130, 133 (1978).
An element of "unlawful touching" would not on its own qualify Section 9A.36.021(1)(a) as a categorical violent felony, because the offense would not in all cases punish conduct that is violent in nature. See Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir.2004) (holding that an Oregon harassment statute was not a categorical crime of violence because it may be violated simply by "`causing spittle to land on the person' of another") (citation omitted); see also Suazo Perez v. Mukasey, 512 F.3d 1222, 1226 (9th Cir.2008) (holding that Washington's fourth-degree assault statute was not a categorical crime of violence because it "can be committed by non-consensual
It may be possible to dream up unusual scenarios in which a non-violent act, such as spitting, could thereby result in "substantial bodily injury." The Supreme Court has made it clear, however, that categorical analysis
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). Lawrence does not claim that his own Section 9A.36.021(1)(a) conviction involved non-violent conduct. Lawrence also has pointed to no Washington case applying Section 9A.36.021(1)(a) to non-violent conduct, and we have found no such case on our own.
In addition, because Section 9A.36.021(1)(a) requires an intentional assault, it is of no moment that it requires that substantial bodily harm be inflicted only with recklessness. In Grajeda, we held that a California assault statute was a categorical crime of violence even though the statute did not require that the defendant intended to cause specific injury. Grajeda, 581 F.3d at 1195. We explained that "[w]hile this formulation of the necessary mens rea does not fit neatly with the standard articulated in Fernandez-Ruiz, [the statute's requirement of intentional use of force] satisfies the concerns animating Leocal and Fernandez-Ruiz that the proscribed conduct be `violent' and `active,' and the use of force not merely accidental." Id. at 1195. So, too, here. Section 9A.36.021(1)(a) does not punish accidental conduct, but rather requires an intentional assault so violent as to inflict substantial bodily harm. Grajeda makes clear that, so long as the assault was intentional and substantial bodily injury was likely, no intent to commit the resulting harm is required; it follows a fortiori that a reckless infliction of substantial bodily harm in the course of an intentional assault qualifies as a crime of violence, as recklessness requires a substantial risk of harm.
We accordingly hold that a violation of Section 9A.36.021(1)(a) qualifies as a violent felony under the categorical approach because it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Lawrence's conviction and sentence are