Categorical Approach Update

Posted by on July 20, 2017 in Blog

United States v. Ochoa, __ F.3d __, 2017 WL 2836820 (9th Cir. July 3, 2017): The Court held that a conviction for conspiring to export defense articles without a license under 18 U.S.C. §371 and 22 U.S.C. §2778 was not categorically a firearms offense providing grounds for deportation (under either 8 U.S.C. §1101(a)(43)(C) or 8 U.S.C. §1227(a)(2)(C)), and the statute was not divisible, so the modified categorical approach could not be used.

United States v. Strickland, __ F.3d __, 2017 WL 2723926 (9th Cir. June 26, 2017): The Court held that an Oregon robbery conviction (Or. Rev. Stat. §164.395(1)) is not a predicate violent felony under ACCA’s force clause.

United States v. Perez-Silvan, __ F.3d __, 2017 WL 2784971 (9th Cir. June 28, 2017): The Court held that a Tennessee aggravated-assault conviction (Tenn. Code Ann. §39-13-101 and §39-13-102) was a crime of violence for purposes of U.S.S.G. §2L1.2 because it required that the offensive touching cause serious bodily injury to another, or use or display of deadly weapon.

United States v. Calvillo-Palacios, __ F.3d __, 2017 WL 2784963 (9th Cir. June 28, 2017): The Court held that Texas aggravated assault committed by use or exhibition of a deadly weapon (Texas Penal Code §22.01 and §22.02) was crime of violence for purposes of U.S.S.G. §2L1.2.

United States v. Chavez-Cuevas, __ F.3d __, 2017 WL 2927635 (9th Cir. July 10, 2017): The Court held that California robbery (California Penal Code §211) is still categorically a crime of violence for purposes of U.S.S.G. §2L1.2 because Descamps and Mathis did not effectively overrule Becerril-Lopez, which held that the conduct covered by the state statute is encompassed by generic robbery and generic extortion.

United States v. Guerrero-Almodovar, __ Fed.Appx. __, 2017 WL 2839512 (9th Cir. July 3, 2017): The Court held that Bercerril-Lopez foreclosed the argument that California robbery (California Penal Code §211) is not a crime of violence for purposes of U.S.S.G. §2L1.2.

United States v. Grant, __ Fed.Appx. __, 2017 WL 2839179 (9th Cir. July 3, 2017): The Court held that precedent establishing that a California conviction for willful infliction of corporal injury on a spouse or cohabitant (California Penal Code §273.5) is a crime of violence for purposes of U.S.S.G. §2L1.2 (which has a force clause identical to that found in former U.S.S.G. §4B1.2) was not undermined by Johnson’s ruling on the residual clause.

Addy v. Sessions, __ Fed.Appx. __, 2017 WL 2817087 (9th Cir. June 29, 2017): The Court held that a California forgery conviction (California Penal Code §470) is categorically a crime relating to forgery and therefore an aggravated felony.

United States v. Stitt, __ F.3d __, 2017 WL 2766326 (6th Cir. June 27, 2017) (en banc): The Court held that a Tennessee conviction for aggravated burglary (Tenn. Code Ann. §39-14-403) does not qualify as a violent felony for purposes of ACCA.

Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017): The Court held that a New York conviction prohibiting the criminal sale of a controlled substance (N.Y. Penal Law §220.31) is categorically not a drug trafficking offense / aggravated felony.

United States v. Bennett, __ F.3d __, 2017 WL 2962897 (7th Cir. July 12, 2017): The Court held that an Indiana conviction for resisting law enforcement (Ind. Code Ann. §35-44-3-3(b)(1)) is not a violent felony for ACCA purposes.

Bennett v. United States, __ F.3d __, 2017 WL 2857620 (1st Cir. July 5, 2017): The Court held that, under rule of lenity, a Maine aggravated-assault conviction (17-A Me. Rev. Stat. §§35(3)(A), 208), which has a mens rea element of mere recklessness, does not constitute a violent felony for purposes of ACCA.

United States v. Reyes-Ochoa, __ F.3d __, 2017 WL 2820932 (5th Cir. June 30, 2017): The Court held that Virginia burglary (Va. Code Ann. §18.2-90) is categorically not a crime of violence for purposes of U.S.S.G. §2L1.2.

United States v. Starks, __ F.3d __, 2017 WL 2802755 (1st Cir. June 28, 2017): The Court held that, for ACCA purposes, Massachusetts convictions for unarmed robbery (Mass. Gen. Laws Ann. ch. 277, §39) and armed robbery (Mass. Gen. Laws Ann. ch. 265, §17) are not violent felonies.

Gordon v. United States Attorney General, __ F.3d __, 2017 WL 2918835 (11th Cir. July 10, 2017): The Court held that a Florida narcotics statute (Fla. Stat. Ann. §893.13(1)(a)) encompasses more conduct than would qualify as a drug trafficking offense / aggravated felony, but the statute is divisible, so the modified categorical approach can be used.