Categorical Approach Update

Posted by on January 8, 2018 in Blog

Villavicencio v. Sessions, __ F.3d __, 2018 WL 297186 (9th Cir. Jan. 5, 2018): The Court held that Nevada convictions for conspiracy to possess drugs (N.R.S. §199.480 and §454.351) did not qualify as controlled-substance offenses under 8 U.S.C. §1227(a)(2)(B)(i). First, Nevada’s conspiracy statute, which does not include an overt-act requirement, is broader than generic conspiracy, and the state statute is indivisible. Furthermore, the Nevada drug statute at issue is overbroad to the extent it encompasses controlled substances not covered by the federal Controlled Substances Act, and because a state jury need not be unanimous as to the underlying controlled substance, that statute is not divisible.

United States v. Jones, 877 F.3d 884 (9th Cir. 2017): Applying Molinar (see December 11 Update), the Court held that a conviction under Arizona’s armed robbery statute (A.R.S. §13-1904) does not categorically qualify as a violent felony under ACCA’s force clause because the state statute punishes conduct that does not involve violent force.

United States v. Werle, 877 F.3d 879 (9th Cir. 2017): The Court held that a Washington conviction for felony harassment (Wash. Rev. Code Ann. §9A.46.020(2)(b)(ii)) categorically qualifies as a crime of violence for purposes of U.S.S.G. §4B1.2 because the state statute necessarily requires a threatened use of physical force against the person of another.

United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017): The Court held that the federal offense of carjacking (18 U.S.C. §2119) is a predicate crime of violence for purposes of 18 U.S.C. §924(c) because, to be guilty of carjacking “by intimidation,” the defendant had to take the motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails a threatened use of violent physical force.

Arazola-Galea v. United States, 876 F.3d 1257 (9th Cir. 2017): The Court held that Mathis did not establish a new rule of constitutional law allowing the filing of a second or successive §2255 motion.

United States v. Crumble, __ F.3d __, 2018 WL 258433 (8th Cir. Jan. 2, 2018): The Court held that Minnesota convictions for second- and third-degree burglary (Minn. Stat. Ann. §609.582(2)(a), (3)) are categorically not ACCA crimes of violence.

United States v. McKibbon, __ F.3d __, 2017 WL 6614572 (10th Cir. Dec. 28, 2017): The Court held that a conviction under a Colorado statute governing unlawful distribution, manufacturing, dispensing, or sale of a controlled substance (Colo. Rev. Stat. Ann. §18-18-405(1)(a)) did not qualify as a controlled substance offense for career-offender purposes because the state statute encompasses mere offers to sell, even without an intent to actually complete the sale.

United States v. Oscar, __ F.3d __, 2017 WL 6513995 (11th Cir. Dec. 20, 2017): The Court held that Florida burglary (Fla. Stat. §810.02(1)(b)(1) and §810.011(2)) does not constitute a violent felony under the ACCA.

United States v. Abeyta, 877 F.3d 935 (10th Cir. 2017): Applying the categorical approach, the Court held that a prior conviction under a city ordinance was not necessarily a violation of state law, so it could not be used to assess criminal-history points.

United States v. Gil, __ Fed.Appx. __, 2017 WL 6349142 (9th Cir. Dec. 13, 2017): The Court held that a California burglary conviction (Cal. Penal Code §459) qualifies as a crime of violence under old U.S.S.G. §4B1.2’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another.

United States v. Chong, __ Fed.Appx. __, 2017 WL 6349274 (9th Cir. Dec. 13, 2017): The Court held that a California robbery conviction (Cal. Penal Code §211) qualifies as a crime of violence under old U.S.S.G. §4B1.2(a).

United States v. Guevara, __ Fed.Appx. __, 2017 WL 6617067 (9th Cir. Dec. 28, 2017), and United States v. Hernandez-Fuentes, __ Fed.Appx. __, 2017 WL 6603512 (9th Cir. Dec. 27, 2017): Applying Murillo-Alvarado (see December 11 Update), the Court held that California Health and Safety Code §11351 is divisible and subject to the modified categorical approach.

United States v. Vega, __ Fed.Appx. __, 2017 WL 6525193 (9th Cir. Dec. 21, 2017): Applying Ocampo-Estrada (see September 19 Update), the Court held that California Health and Safety Code §11378 is divisible and subject to the modified categorical approach.

Arias v. Sessions, __ Fed.Appx. __, 2017 WL 6507779 (9th Cir. Dec. 20, 2017): The Court held that a conviction for possession of marijuana for sale under California Health and Safety Code §11359 is categorically an aggravated felony.

Heredia v. Sessions, __ Fed.Appx. __, 2017 WL 6617026 (9th Cir. Dec. 28, 2017): The Court held that although California Penal Code §273.5(a) is not categorically a crime involving moral turpitude, it’s a divisible statute for which a conviction under one portion of the statute (corporal injury against a spouse) will so qualify, so a court may apply the modified categorical approach to ascertain if the defendant was convicted of spousal abuse.

Zavala-Virelas v. Sessions, __ Fed.Appx. __, 2017 WL 6507839 (9th Cir. Dec. 20, 2017): The Court held that the BIA properly determined, using the modified categorical approach, that an Arizona conviction for aggravated assault (A.R.S. §13-1203(A)(2) and §13-1204(A)(2)) was a crime of violence.

United States v. Turner, __ Fed.Appx. __, 2017 WL 6330874 (9th Cir. Dec. 12, 2017): The Court held that a Nevada drug statute (N.R.S. §453.321) is not categorically a controlled substance because it covers substances not contained in the federal Controlled Substances Act. The Court remanded for the district court to determine whether the state statute is divisible.

Ochoa-Huerta v. Sessions, __ Fed.Appx. __, 2017 WL 6507798 (9th Cir. Dec. 20, 2017): The Court held that the BIA did not err in determining that a Nevada conviction for attempted fraudulent use of a credit card (N.R.S. §205.760 and §193.330) is categorically a crime involving moral turpitude.