Categorical Approach Update

Posted by on August 21, 2017 in Blog

United States v. Martinez-Lopez, __ F.3d __, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc): The Court considered whether California Health & Safety Code §11352, which—like many California drug statutes—criminalizes a variety of activities related to multiple controlled substances, is a drug trafficking for purposes of U.S.S.G. §2L1.2. The Court first held that the statute, which is overbroad with regard to the type of controlled substance, is divisible as to that element such that the modified categorical approach can be used. The Court also held that the statute’s actus reas element (covering “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport” a controlled substance) defines a series of different offenses and is therefore also divisible.

Lozano-Arredondo v. Sessions, __ F.3d __, 2017 WL 3393454 (9th Cir. Aug. 8, 2017): The Court held that an Idaho petty-theft statute (Idaho Code Ann. §§18-2403, 18-2408(3)), which permits a conviction based on temporary taking of property, does not qualify as crime involving moral turpitude. Because the statute is divisible, the Court applied the modified categorical approach. It noted that a rap sheet may form part of the record of conviction, but the rap sheet in that case was not sufficiently reliable, so the record of conviction was inconclusive.

Sandoval v. Sessions, __ F.3d __, 2017 WL 3400955 (9th Cir. Amended Aug. 8, 2017): The Court held that a conviction under Oregon Rev. Stat. §475.992(1)(a) is not a categorical drug trafficking crime / aggravated felony because its definition of “delivery” includes mere solicitation, which is not covered by the federal Controlled Substances Act. And because the statue is indivisible, the modified categorical approach cannot be used.

Sales v. Sessions, __ F.3d __, 2017 WL 3567831 (9th Cir. Aug. 18, 2017): The Court reaffirmed that California’s law on aiding and abetting is consistent with generic aiding and abetting, noting that California law on the matter has not materially changed since the Supreme Court addressed it in Duenas-Alvarez, and the law was not applied in any “special” way in the petitioner’s case.

Lopez-Hurtado v. Session, __ Fed.Appx. __, 2017 WL 3411885 (9th Cir. Aug. 9, 2017): The Court held that a conviction under Nevada Revised Statute §483.530(2) (using false information to obtain a driver’s license) is not categorically a crime involving moral turpitude. The Court remanded for the immigration court to decide whether the statute is divisible.

United States v. Sutton, __ Fed.Appx. __, 2017 WL 3499917 (9th Cir. Aug. 16, 2017): The Court held that assault with a dangerous weapon with intent to do bodily harm (18 U.S.C. §113(a)(3)) is categorically a crime of violence for purposes of 18 U.S.C. §924(c)(3).

United States v. Carlson, __ Fed.Appx. __, 2017 WL 3264032 (9th Cir. Aug. 1, 2017): The Court held that a Washington conviction for sexual contact with children aged twelve and thirteen for purposes of sexual gratification (Wash. Rev. Code §9A.44.086(1) (1992)) categorically qualifies as predicate convictions for an enhanced sentence under 18 U.S.C. §2252A(b)(1) because it “relates to” aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.

United States v. Martinez, __ Fed.Appx. __, 2017 WL 3309937 (9th Cir. Aug. 3, 2017): Applying Martinez-Lopez, the Court rejected a claim that California Health & Safety Code §11379 is categorically not a controlled substance offense.

United States v. Diaz, __ F.3d __, 2017 WL 3159918 (4th Cir. July 31, 2017): The Court held that interference with flight crew members and attendants (49 U.S.C.A. §46504) is categorically not a crime of violence for purposes of 18 U.S.C. §16.

United States v. Jackson, __ F.3d __, 2017 WL 3318833 (7th Cir. Aug. 4, 2017): The Court held that a conviction for sex trafficking of a minor (18 U.S.C. §1591(a)) does not satisfy the force clause of 18 U.S.C. §924(c)(3)(A).

United States v. Yates, __ F.3d __, 2017 WL 3402084 (6th Cir. Aug. 9, 2017): The Court held that Ohio robbery (Ohio Rev. Code Ann. §2911.02(A)(3)), which can be accomplished by a minimal use of force, is categorically not a crime of violence for career-offender purposes under either U.S.S.G. §4B1.2’s force clause or its enumerated-offenses clause (which includes generic robbery).

United States v. Madkins, __ F.3d __, 2017 WL 3389367 (10th Cir. Aug. 8, 2017): The Court held that a Kansas conviction for possession with intent to sell cocaine and marijuana (K.S.A. §§65-4161(a), 65-4163(a)(3)) is not a controlled substance offense for career-offender purposes.

Ildefonso-Candelario v. Attorney General of United States, __ F.3d __, 2017 WL 3298365 (3d Cir. Aug. 3, 2017): The Court held that a Pennsylvania misdemeanor conviction for obstructing the administration of law or other governmental function (18 Pa. Cons. Stat. Ann. §5101) is not categorically a conviction of a crime involving moral turpitude.

Victoria-Faustino v. Sessions, __ F.3d __, 2017 WL 3254918 (7th Cir. Aug. 1, 2017): Illinois crime of obstruction of justice (720 Ill. Comp. Stat. 5/31-4) does not categorically match Immigration and Nationality Act’s definition of obstruction of justice, so it is not an aggravated felony under 8 U.S.C. §1101(a)(43)(S).

United States v. McMillan, 863 F.3d 1053 (8th Cir. July 24, 2017): The Court held that a Minnesota conviction for third-degree riot (Minn. Stat. Ann. §609.71(3)) is not a crime of violence under U.S.S.G. §4B1.2’s force clause.

United States v. Windley, 864 F.3d 36 (1st Cir. July 21, 2017): The Court held that a Massachusetts conviction for assault and battery with a dangerous weapon does not qualify as an ACCA violent felony.

Ming Wei Chen v. Sessions, 864 F.3d 536 (7th Cir. July 20, 2017): The Court held that an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana (720 Ill. Comp. Stat. Ann. 550/5(d)) does not qualify as an aggravated felony.

United States v. Fields, 863 F.3d 1012 (8th Cir. July 20, 2017): The Court held that a Missouri conviction for second-degree assault (Mo. Ann. Stat. §565.052.1(3)) is not a crime of violence for purposes of U.S.S.G. §4B1.2.