Categorical Approach Update

Posted by on October 21, 2016 in Blog


Lynch v. Dimaya, Case No. 15-1498 (Sept. 29, 2016): The Supreme Court granted review to address this question: “Whether 18 U.S.C. §16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.”

United States v. Martinez-Lopez, Case No. 14-50014 (9th Cir. Sept. 26, 2016): The Court ordered rehearing en banc in this illegal-reentry case to apply the categorical approach to California Health & Safety Code §11352. The case presents two issues: (1) whether the type of drug is an element of §11352 (and similar state drug laws); and (2) whether the statute’s conduct alternatives (sells, transports, furnishes, etc.) are means or elements. The case will be argued in January.

United States v. Sanchez-Fernandez, __ Fed.Appx. __, 2016 WL 5404056 (9th Cir. Sept. 28, 2016): The Court held that a conviction for possession of narcotics for sale in violation of Arizona Revised Statute §13-3408(A)(2) is not a drug trafficking offense for purposes of U.S.S.G. §2L1.2. The state crime is not a categorical match with the federal generic definition because it criminalizes possession for sale of certain substances that are not federally controlled.

United States v. Vail-Bailon, __ F.3d __, 2016 WL 5403582 (11th Cir. Sept. 28, 2016): The Court held that a Florida conviction for felony battery (Fla. Stat. Ann. §784.041) did not qualify as crime of violence under U.S.S.G. §2L1.2. The state offense could have been committed by mere touching and contained no requirement that the offender intentionally or knowingly caused bodily harm.

United States v. Walker, __ F.3d __, 2016 WL 6080792 (8th Cir. Oct. 18, 2016): The Court held that a Minnesota burglary conviction (Minn. Stat. Ann. §609.582(3)) was divisible between crimes that did and did not qualify as violent felonies under ACCA, so the district court should have applied the modified categorical approach.

United States v. Uribe, __ F.3d __, 2016 WL 5724779 (5th Cir. Oct. 3, 2016): The Court held that a Texas burglary conviction (Tex. Penal Code Ann. §30.02(a)) was divisible between crimes that did and did not qualify as crimes of violence under U.S.S.G. §2L1.2.

United States v. Prickett, __ F.3d __, 2016 WL 5799691 (8th Cir. Oct. 5, 2016): The Court held that Johnson does not render the crime-of-violence definition in 18 U.S.C. §924(c)(3)(B) (“an offense that is a felony and … that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”) unconstitutionally vague.