Categorical Approach Update

Posted by on December 13, 2017 in Blog

United States v. Valdivia-Flores, __ F.3d __, 2017 WL 6044232 (9th Cir. Dec. 7, 2017): The Court held that a Washington conviction for possession of controlled substance with intent to distribute (Wash. Rev. Code Ann. §§9A.08.010(1)(a), 9A.08.010(1)(b), & 69.50.401) was not categorically an aggravated felony because the state drug trafficking law had a more inclusive mens rea requirement for accomplice liability than its federal analogue. And because the state statute is indivisible, the modified categorical approach cannot be used. Therefore, the alien got relief even though he was convicted as principal and not as accomplice, and the state statute matched its federal analogue with regard to principals.

United States v. Murillo-Alvarado, __ F.3d __, 2017 WL 5986574 (9th Cir. Dec. 4, 2017): Following Martinez-Lopez, the Court held that a conviction under California Health & Safety Code §11351 qualifies as a drug trafficking offense for purposes of the former version of U.S.S.G. §2L1.2 if the modified categorical approach establishes that the defendant pleaded guilty to an offense involving a controlled substance covered by the federal Controlled Substances Act.

United States v. Johnson, __ F.3d __, 2017 WL 5662525 (9th Cir. Nov. 27, 2017): The Court followed precedent holding that a California robbery conviction (California Penal Code §211) is categorically a crime of violence for purposes of U.S.S.G. §4B1.2.

United States v. Molinar, __ F.3d __, 2017 WL 5760565 (9th Cir. Nov. 29, 2017): The Court held that an Arizona conviction for attempted armed robbery (Ariz. Rev. Stat. Ann. §§13-1901(1) & 13-1904(A)) was crime of violence for purposes of U.S.S.G. §4B1.2 because Arizona robbery is a categorical match to generic robbery and Arizona attempt is coextensive with general attempt.

United States v. Hernandez-Jimenez, __ Fed.Appx. __, 2017 WL 5507744 (9th Cir. Nov. 17, 2017): The Court held that Moncrieffe and Johnson did not effectively overrule precedent holding that a conviction under California Penal Code §288(a) is sexual abuse of a minor and thus a crime of violence for purposes of former U.S.S.G. §2L1.2.

Conejo-Bravo v. Sessions, 875 F.3d 890, 891 (9th Cir. 2017): The Court held that a felony hit-and-run conviction under California Vehicle Code §20001(a) was a crime involving moral turpitude under the modified categorical approach.

United States v. Jay, __ Fed.Appx. __, 2017 WL 5897267 (9th Cir. Nov. 30, 2017): The Court held that Moncrieffe did not effectively overrule precedent holding that Hobbs Act Robbery is a crime of violence for purposes of 18 U.S.C. §924(c).

United States v. Yepiz, __ Fed.Appx. __, 2017 WL 5562046 (9th Cir. Nov. 20, 2017): The Court held that, under the modified categorical approach, a conviction under California Health & Safety Code §11351 may qualify as a felony drug offense for purposes of 21 U.S.C. §841.

United States v. Branch, __ Fed.Appx. __, 2017 WL 5562079 (9th Cir. Nov. 20, 2017): In light of Beckles, the Court rejected an argument that the residual clause in U.S.S.G. §4B1.2(a)(2) is unconstitutionally vague under Johnson.