Category: Blog

Categorical Approach Update

Posted on May 1, 2018

Sessions v. Dimaya, 138 S.Ct. 1204 (2018): The Court held that the residual clause of 18 U.S.C. §16’s crime-of-violence definition is unconstitutionally vague in light of Johnson. And because the vagueness doctrine extends to immigration statutes, 8 U.S.C. §1101(a)(43)(F) is also invalid to the extent it defines “aggravated felony” to include a crime of violence under §16(b)’s residual clause. United States v. Stitt, Supreme Court Case No. 17-765 & United States v. Sims, Supreme Court Case No. 17-766: The Court granted cert to address this […]..

Categorical Approach Update

Posted on March 8, 2018

United States v. Studhorse, __ F.3d __, 2018 WL 1122301 (9th Cir. Mar. 2, 2018): The Court held that attempted first-degree murder under Washington law (Wash. Rev. Code Ann. §§9A.28.020(1), 9A.32.030(1)) requires specific intent and has as an element an intentional, threatened, attempted, or actual use of force, so it qualifies as a crime of violence under 18 U.S.C. §16(a) and U.S.S.G. §4B1.2(a). United States v. Adkins, __ F.3d __, Case No. 15-10566 (9th Cir. Mar. 5, 2018): The Court held that the deletion of […]..

Categorical Approach Update

Posted on February 7, 2018

United States v. Walton, __ F.3d __, 2018 WL 650979 (9th Cir. Feb. 1, 2018): The Court held that a conviction for Alabama armed robbery (Ala. Code §13A-8-43(a)) is categorically not an ACCA violent felony because it doesn’t require the use of violent force. And under Dixon, the defendant’s California conviction for second-degree robbery (Cal. Penal Code §211) also didn’t qualify as a violent felony. Solorio-Ruiz v. Sessions, __ F.3d __, 2018 WL 576709 (9th Cir. Jan. 29, 2018): The Court held that a California […]..

Categorical Approach Update

Posted on January 8, 2018

Villavicencio v. Sessions, __ F.3d __, 2018 WL 297186 (9th Cir. Jan. 5, 2018): The Court held that Nevada convictions for conspiracy to possess drugs (N.R.S. §199.480 and §454.351) did not qualify as controlled-substance offenses under 8 U.S.C. §1227(a)(2)(B)(i). First, Nevada’s conspiracy statute, which does not include an overt-act requirement, is broader than generic conspiracy, and the state statute is indivisible. Furthermore, the Nevada drug statute at issue is overbroad to the extent it encompasses controlled substances not covered by the federal Controlled Substances Act, […]..

Categorical Approach Update

Posted on December 13, 2017

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 […]..

Categorical Approach Update

Posted on November 17, 2017

United States v. Solomon, __ Fed.Appx. __, 2017 WL 4966452 (9th Cir. Oct. 27, 2017): The Court held that an assault conviction under California Penal Code §245(a)(4) is a crime of violence for purposes of U.S.S.G. §4B1.2 under existing circuit precedent, which is not clearly irreconcilable with Descamps, Mathis, or Johnson. United States v. O’Connor, __ F.3d __, 2017 WL 4872571 (10th Cir. Oct. 30, 2017): The Court held that Hobbs Act robbery (18 U.S.C. §1951) is categorically not a crime of violence for purposes […]..

Categorical Approach Update

Posted on October 16, 2017

United States v. Slade, __ F.3d __, 2017 WL 4509044 (9th Cir. Oct. 10, 2017): The Court held that a conviction under Washington’s second-degree assault statute (Wash. Rev. Code Ann. §9A.36.021) is categorically not a crime of violence under U.S.S.G. §2K2.1 and §4B1.2. United States v. Knight, __ Fed.Appx. __, 2017 WL 4461085 (9th Cir. Oct. 5, 2017): The Court held that a Louisiana armed-robbery conviction (La. Stat. Ann. §14:64) is a crime of violence for purposes of U.S.S.G. §2K2.1 and §4B1.2. United States v. […]..

Categorical Approach Update

Posted on September 26, 2017

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 […]..

Categorical Approach Update

Posted on August 21, 2017

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 […]..

Categorical Approach Update

Posted on July 20, 2017

United States v. Ochoa, __ F.3d __, 2017 WL 2836820 (9th Cir. July 3, 2017): The Court held that a conviction for conspiring to export defense articles without a license under 18 U.S.C. §371 and 22 U.S.C. §2778 was not categorically a firearms offense providing grounds for deportation (under either 8 U.S.C. §1101(a)(43)(C) or 8 U.S.C. §1227(a)(2)(C)), and the statute was not divisible, so the modified categorical approach could not be used. United States v. Strickland, __ F.3d __, 2017 WL 2723926 (9th Cir. June […]..