Categorical Approach Update

Posted by on March 8, 2018 in Blog

United States v. Studhorse, __ F.3d __, 2018 WL 1122301 (9th Cir. Mar. 2, 2018): The Court held that attempted first-degree murder under Washington law (Wash. Rev. Code Ann. §§9A.28.020(1), 9A.32.030(1)) requires specific intent and has as an element an intentional, threatened, attempted, or actual use of force, so it qualifies as a crime of violence under 18 U.S.C. §16(a) and U.S.S.G. §4B1.2(a).

United States v. Adkins, __ F.3d __, Case No. 15-10566 (9th Cir. Mar. 5, 2018): The Court held that the deletion of the residual clause in the career offender guideline (U.S.S.G. § 4B1.2(a)) was a substantive rather than clarifying amendment, so the residual clause still applied to the defendant, who was sentenced prior to the amendment. The Court also held that the defendant’s prior Hawaii convictions for unlawful imprisonment in the first degree (Haw. Rev. Stat. §707-721) and burglary in the first degree (Haw. Rev. Stat. Ann. §708-810) qualified as crimes of violence under the residual clause.

Torres-Revilla v. Sessions, __ Fed.Appx. __, 2018 WL 1007756 (9th Cir. Feb. 22, 2018): The Court held that Martinez-Lopez foreclosed the argument that California Health & Safety Code §11352(a) is not divisible.

Castro v. Sessions, __ Fed.Appx. __, 2018 WL 991066 (9th Cir. Feb. 21, 2018): The Court held that an alien was removable for an offense relating to a controlled substance where a minute order read in conjunction with a complaint showed his conviction under California Health and Safety Code §11379(a) involved methamphetamine.

United States v. Middleton, __ F.3d __, 2018 WL 1056944 (4th Cir. Feb. 26, 2018): The Court held that South Carolina involuntary manslaughter is not an ACCA violent felony because it can be committed by reckless conduct and the word “use” in ACCA’s force-clause definition of a violent felony requires a higher degree of mens rea than recklessness.

Cintron v. U.S. Attorney General, __ F.3d __, 2018 WL 947533 (11th Cir. Feb. 20, 2018): The Court held that a Florida statute prohibiting trafficking in illegal drugs (Fla. Stat. Ann. §893.135) is categorically overbroad and indivisible, so it cannot qualify as an aggravated felony or disqualify an alien from cancellation of removal.

United States v. Herrold, __ F.3d __, 2018 WL 948373 (5th Cir. Feb. 20, 2018): The Court held that Texas’s burglary statute (Tex. Penal Code Ann. §30.02(a)) is broader than generic burglary, and because the statute is indivisible, a conviction under it cannot serve as an ACCA predicate.

Higdon v. United States, __ F.3d __, 2018 WL 827534 (6th Cir. Feb. 13, 2018): The Court held that the North Carolina offense of discharging firearm into occupied structure (N.C. Gen. Stat. Ann. §14-34.1) did not qualify as an ACCA violent felony.