United States v. Aguila-Montes De Oca

Steven F. Hubachek and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Mark R. Rehe, Assistant U.S. Attorney, Criminal Division, San Diego, CA, for the plaintiff-appellee.

Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, BARRY G. SILVERMAN, WILLIAM A. FLETCHER, RONALD M. GOULD, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

PER CURIAM Opinion; Opinion by Judge BYBEE; Concurrence by Judge BERZON; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

PER CURIAM:

A majority of the en banc court (Judge Bybee, joined by Judges Rymer, Silverman, Gould, Rawlinson and Callahan) overrules our prior holding in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc), that the modified categorical approach doesn't apply "[w]hen the crime of conviction is missing an element of the generic crime altogether."

A different majority (Judge Bybee, joined by Chief Judge Kozinski and Judges Rymer, W. Fletcher, Berzon, M. Smith and N.R. Smith) overrules our prior decisions to the extent they hold that a conviction under California…

It is common ground — as it of course has to be — that Taylor v. United States, the “grandfather” Supreme Court case on the question of applying federal recidivism statutes to particular prior convictions, instructs sentencing courts assessing a criminal defendant’s prior conviction to employ a “categorical approach.” 495 U.S. 575, 600 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). Under that approach, we are directed to consider the elements of the crime of conviction in general, not the conduct underlying the defendant’s conviction in particular. Id. at 602 , 110 S.Ct. 2143 . The problem we address today arises when those elements and the requirements of the federal recidivist statute in question do not match.

As to that question, Taylor tells us that the categorical approach may be modified, but only “in a narrow range of cases where [the trier of fact] was actually required to find all the elements of [the] generic [crime].” Id. at 602 , 110 S.Ct. 2143 (emphases added). This “modified categorical approach,” must remain categorical, not factual or “circumstance-specific.” Nijhawan v. Holder, — U.S.-, 129 S.Ct. 2294, 2298 , 174 L.Ed.2d 22 (2009); see Taylor, 495 U.S. at 600-02 ,…

I agree with and join Parts I-IV of the majority opinion explaining why we should reverse our prior ruling in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc). However, I respectfully dissent from the balance of the opinion applying the modified categorical approach to the facts of this case.

Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.

In Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), the United States Supreme Court articulated the important goals underlying enhanced sentences for burglary. Congress’ efforts to address the severe problems presented by repeat offenders were “intended to…

PER CURIAM Opinion; Opinion by Judge BYBEE; Concurrence by Judge BERZON; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

OPINION

A majority of the en banc court (Judge Bybee, joined by Judges Rymer, Silver-man, Gould, Rawlinson and Callahan) overrules our prior holding in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc), that the modified categori *917 cal approach doesn’t apply “[w]hen the crime of conviction is missing an element of the generic crime altogether.”

A different majority (Judge Bybee, joined by Chief Judge Kozinski and Judges Rymer, W. Fletcher, Berzon, M. Smith and N.R. Smith) overrules our prior decisions to the extent they hold that a conviction under California Penal Code § 459 qualifies as a generic burglary conviction if the defendant pleaded guilty to entering a building “unlawfully” or a jury found the defendant guilty as charged in an indictment reciting that allegation. This majority concludes that Aguila-Montes’s prior conviction under California Penal Code § 459 cannot be used to enhance his sentence.

The district court’s sentence is VACATED, and the case is REMANDED to the original three-judge panel for…