Categorical Approach Update

Posted by on February 7, 2018 in Blog

United States v. Walton, __ F.3d __, 2018 WL 650979 (9th Cir. Feb. 1, 2018): The Court held that a conviction for Alabama armed robbery (Ala. Code §13A-8-43(a)) is categorically not an ACCA violent felony because it doesn’t require the use of violent force. And under Dixon, the defendant’s California conviction for second-degree robbery (Cal. Penal Code §211) also didn’t qualify as a violent felony.

Solorio-Ruiz v. Sessions, __ F.3d __, 2018 WL 576709 (9th Cir. Jan. 29, 2018): The Court held that a California conviction for carjacking (Cal. Penal Code §215(a)), which does not require the use of violent force, doesn’t qualify as an aggravated felony under the crime-of-violence definition. The Court left open the question of whether it might qualify as a theft offense.

United States v. Brown, 879 F.3d 1043 (9th Cir. 2018): The Court held that the conspiracy definition of the Washington Criminal Code—including the provision in RCW §9A.28.040(f) that allows for a conviction when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed—applies to the drug conspiracy offense defined in RCW Title 69. Therefore, the Washington drug conspiracy statute covers conduct that would not be covered under federal law, so it isn’t a categorical match to conspiracy under federal law. There was no dispute that the drug-conspiracy statute is indivisible, so the modified categorical approach could not be used.

United States v. Watson, __ F.3d __, 2018 WL 650990 (9th Cir. Feb. 1, 2018): The Court held that bank robbery under 18 U.S.C. §2113(a)—and, thus, armed bank robbery under §2113(a) & (d)—is categorically a crime of violence for purposes of 18 U.S.C. §924(c) because it has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another.

United States v. Paniagua-Paniagua, __ Fed.Appx. __, 2018 WL 578705 (9th Cir. Jan. 29, 2018): The Court recognized that a drug conviction under Wash. Rev. Code §69.50.401(2)(b) is not an aggravated felony because Washington’s definition of aiding and abetting liability is broader than the generic federal definition; and the implicit nature of aiding and abetting liability in every criminal charge renders §69.50.401 categorically overbroad. The statute is indivisible, which precludes application of the modified categorical approach.

United States v. Donnelly, __ Fed.Appx. __, 2018 WL 634562 (9th Cir. Jan. 31, 2018): The Court granted §2255 relief because the defendant’s Florida robbery convictions (Fla. Stat. §812.13) were no longer ACCA predicates after Johnson.

United States v. Gonzalez-Urena, __ Fed.Appx. __, 2018 WL 495533 (9th Cir. Jan. 22, 2018): The Court rejected the argument that a carjacking conviction under California Penal Code §215 is not a crime of violence under old U.S.S.G. §2L1.2(b).

United States v. Hayes, __ Fed.Appx. __, 2018 WL 387373 (9th Cir. Jan. 12, 2018): The Court held that the modified categorical approach established that the defendant’s conviction under California Health and Safety Code §11351 for possessing crack cocaine with the intent to distribute qualified as a career-offender controlled-substance offense.

United States v. Steed, 879 F.3d 440 (1st Cir. 2018): The Court held that a New York conviction for attempted second-degree robbery (N.Y. Penal Law §160.10(2)(a)) did not qualify as a crime of violence under U.S.S.G. §4B1.2(a)(1).

United States v. Reyes-Contreras, __ F.3d __, 2018 WL 722552 (5th Cir. Feb. 6, 2018): The Court held that a Missouri manslaughter conviction (Mo. Ann. Stat. §565.023) did not categorically qualify as a crime of violence for purposes of old U.S.S.G. §2L1.2, but the statute is divisible so the modified categorical approach may be used.

United States v. Kennedy, __ F.3d __, 2018 WL 524757 (1st Cir. Jan. 24, 2018): The Court held that the Massachusetts crime of assault and battery with a dangerous weapon is divisible as to its two forms—intentional and reckless—and the reckless form cannot qualify as an ACCA violent felony.