Categorical Approach Update

Posted by on April 14, 2017 in Blog

United States v. Arriaga-Pinon, __ F.3d __, Case No. 16-50188 (9th Cir. Apr. 7, 2017): The Court held that, under the modified categorical approach, the defendant’s conviction under California Vehicle Code §10851(a) (theft and unlawful driving or taking of a vehicle) was not an aggravated felony. The Court therefore did not have to reach the defendant’s argument that its 2013 decision in Duenas-Alvarez holding that §10851(a) is divisible is clearly irreconcilable with Mathis. Concurring, Judge Thomas noted that, because Mathis has altered the legal landscape, the Court should address that issue at the appropriate time. In his opinion, §10851(a) is not divisible.

United States v. Jordan, __ Fed.Appx. __, 2017 WL 975980 (9th Cir. Mar. 14, 2017): The Court held that circuit precedent holding that bank robbery under 18 U.S.C. §2113(a) categorically qualifies as a “crime of violence” under 18 U.S.C. §924(c)(3)(A) has not been so clearly displaced by the Supreme Court’s decisions in Johnson (2010), Johnson (2015), or Mathis as to warrant reversal under the plain-error standard.

United States v. Gutierrez-Flores, __ Fed.Appx. __, 2017 WL 1086313 (9th Cir. Mar. 21, 2017): The Court held that its 2009 decision in Medina-Villa holding that a conviction under California Penal Code §288(a) constitutes “sexual abuse of a minor” was not clearly irreconcilable with subsequent precedent.

Paz-Valadez v. Sessions, __ Fed.Appx. __, 2017 WL 992517 (9th Cir. Mar. 15, 2017): The Court held that a conviction for knowingly possessing a false identification document with intent to defraud the United States under 18 U.S.C. §1028(a)(4) is categorically a crime involving moral turpitude because intent to defraud is an element of the crime.

Ramirez v. Sessions, Fed.Appx. __ 2017 WL 1244901 (9th Cir. Apr. 5, 2017): The Court deferred to an immigration judge’s conclusion that Nevada Revised Statute §205.465 (possession or sale of document or personal identifying information to establish false status or identity) is not a categorical crime involving moral turpitude.

United States v. Faust, __ F.3d __, 2017 WL 1244844 (1st Cir. Apr. 5, 2017): The Court held that the Massachusetts crime of resisting arrest (Mass. Gen. Laws ch. 268, §32B(a)) is categorically not a violent felony for ACCA purposes. Although the crime of assault and battery on a police officer (Mass. Gen. Laws ch. 265, §13A) is not categorically a violent felony, it is divisible in part, so the Court remanded for further proceedings.

United States v. Phillips, __ F.3d __, 2017 WL 1228563 (8th Cir. Apr. 4, 2017): The Court held that Missouri second-degree burglary (Mo. Ann. Stat. §§569.010(2), 569.170.1) is overbroad for ACCA purposes, but the modified categorical approach may be used to determine if a particular conviction is a violent felony.

United States v. King, __ F.3d __, 2017 WL 1173693 (6th Cir. Mar. 30, 2017): The Court held that when determining whether prior offenses were “committed on occasions different from one another” for purposes of ACCA, a court may consult only the evidentiary sources approved by the Supreme Court in Taylor and Shepard.

United States v. Titties, __ F.3d __, 2017 WL 1102867 (10th Cir. Mar. 24, 2017): The Court held that an Oklahoma conviction for pointing a firearm (Okla. Stat. tit. 21 §1289.16) is categorically not an ACCA violent felony.

United States v. Winston, 850 F.3d 677 (4th Cir. Mar. 13, 2017): Virginia common law robbery conviction does not qualify as a violent felony under ACCA.