Categorical Approach Update

Posted by on September 26, 2017 in Blog

United States v. Geozos, __ F.3d __, 2017 WL 3712155 (9th Cir. Aug. 29, 2017): The Court held that a Florida robbery conviction (Fla. Stat. Ann. §790.07(2) & §812.13) categorically isn’t a violent felony for ACCA purposes because the crime can be committed with non-violent force. The opinion also includes helpful language concerning what qualifies as a “Johnson claim.”

United States v. Ocampo-Estrada, __ F.3d __, 2017 WL 3707900 (9th Cir. Aug. 29, 2017): The Court held that the government failed to meet its modified-categorical-approach burden to prove that the defendant’s conviction under California Health & Safety Code §11378 involved a federal controlled substance where no judicially-noticeable documents from the state-court record established that the guilty plea was predicated on methamphetamine. It was irrelevant that the defendant admitted in the current federal case that his prior offense involve methamphetamine.

United States v. Robinson, No. 16-30096, 2017 WL 3648524 (9th Cir. Aug. 25, 2017): The Court held that a Washington second-degree assault conviction (Wash. Rev. Code Ann. §9A.36.021(1)(e)) is categorically not a crime of violence as defined in U.S.S.G. §4B1.2.

Marinelarena v. Sessions, No. 14-72003, 2017 WL 3611589 (9th Cir. Aug. 23, 2017): The Court held that California’s conspiracy statute (California Penal Code §182(a)(1)) punishes a broader range of conduct than either 8 U.S.C. §1182(a)(2)(A)(i)(II) or 8 U.S.C. §1227(a)(2)(B)(i) because a defendant can be convicted under the state statue for any criminal conspiracy, whether or not it relates to a controlled substance. But the state statute is divisible because California requires jurors to unanimously agree on the object of the conspiracy, so the modified categorical approach can be used. Here, the target offense was a drug offense under California Health & Safety Code §11352, which is itself divisible and subject to the modified categorical approach. The Court also held that Young v. Holder, under which an alien suffers the consequences of ambiguity in the prior-conviction record, remains good law because it is not clearly irreconcilable with Moncrieffe and Descamps. Judge Tashima, dissenting, disagreed with that.

Cornejo-Villagrana v. Sessions, __ F.3d __, 2017 WL 4051705 (9th Cir. Sept. 14, 2017): The Court held that a misdemeanor conviction for domestic-violence assault (Ariz. Rev. Stat. §§13-1203 & 13-3601) does not categorically qualify as a generic “crime of domestic violence” for purposes of 8 U.S.C.A. §1227(a)(2)(E) because it encompasses reckless conduct. But the statute is divisible, so the modified categorical approach can be used.

United States v. Barragan, __ F.3d __, 2017 WL 3927273 (9th Cir. Sept. 8, 2017): The Court held that a California robbery conviction (California Penal Code §211) is categorically a crime of violence for career-offender purposes. It also held that the defendant’s drug conviction under California Health & Safety Code §11379 qualified as a predicate prior under the modified categorical approach.

United States v. Ryncarz, __ Fed.Appx. __, 2017 WL 3775298 (9th Cir. Aug. 31, 2017): The Court held that Washington second-degree assault convictions (Wash. Rev. Code §9A.36.021) cannot serve as ACCA predicates.

Valdivia-Rodriguez v. Sessions, __ Fed.Appx __, 2017 WL 3971461 (9th Cir. Sept. 8, 2017): The Court held that an Arizona assault conviction (Ariz. Rev. Stat. §13-1203(A)(1)) qualified as a crime of domestic violence for immigration purposes under the modified categorical approach.

United States v. Biddles, __ Fed.Appx. __, 2017 WL 3912737 (9th Cir. Sept. 7, 2017): The Court held that a robbery conviction under California Penal Code §211 is categorically a crime of violence, and thus a Grade A supervised-release violation, because it satisfies the definition in U.S.S.G. §4B1.2. In a separate opinion, Judge Reinhardt expressed serious doubts about the inclusion of robbery in the crime-of-violence definition by means of commentary when the only possible basis for its doing so appears to have been its reliance on the now-removed residual clause.

United States v. Powell, __ Fed.Appx. __, 2017 WL 3971465 (9th Cir. Sept. 8, 2017): The Court held that Washington second-degree robbery categorically qualifies as a crime of violence for purposes of U.S.S.G. §4B1.2.

United States v. Reyes, __ Fed.Appx. __, 2017 WL 3971467 (9th Cir. Sept. 8, 2017): The Court held that a Wyoming drug-conspiracy conviction (Wyo. Stat. §35-7-1042 & §35-7-1031(a)(ii)) categorically qualifies as a controlled substance offense for career-offender purposes.

United States v. Torres, __ Fed.Appx. __, 2017 WL 3888024 (9th Cir. Sept. 6, 2017): The Court held that a conviction under California Health & Safety Code §11378 qualified as a felony drug offense for purposes of 21 U.S.C. §841(b) under the modified categorical approach. In a footnote, the Court wrote: “Though both parties argue that the categorical approach applies when determining whether a prior conviction is a ‘felony drug offense’ under §841, we have never held in a published opinion that it applies in this context. Though we need not reach the issue, we note that the categorical approach may be a poor fit for sentencing determinations under 21 U.S.C. §851, which sets up a statutory, trial-like procedure for determining whether the defendant has a prior conviction for a ‘felony drug offense.’”

United States v. Perlaza-Ortiz, __ F.3d __, 2017 WL 3614193 (5th Cir. Aug. 23, 2017): The Court held that the Texas crime of deadly conduct (Tex. Penal Code §22.05(b)), which can be committed by discharging a firearm towards a habitation, building, or vehicle, categorically does not qualify as a crime of violence for purposes of U.S.S.G. §2L1.2.

Mateo v. Attorney General of the United States, __ F.3d __, 2017 WL 3881943 (3d Cir. Sept. 6, 2017): The Court held that the INA’s definition of “aggravated felony” is unconstitutionally vague to the extent it incorporates 18 U.S.C. §16(b)’s residual clause.

Moore v. United States, __ F.3d __, 2017 WL 4021654 (1st Cir. Sept. 13, 2017): The Court granted an application to file a second or successive §2255 motion because the defendant made sufficient showing of possible merit of his claim that career offender sentencing guideline’s residual clause was unconstitutionally vague.

In re Hoffner, __ F.3d __, 2017 WL 3908880 (3d Cir. Sept. 7, 2017): The Court granted an application to file a second or successive §2255 motion because the defendant made prima facie showing that Johnson was rule on which his claim relied challenging his sentence as career offender.