Carlos Rendon v. Eric Holder, Jr.

dissenting from the denial of rehearing en banc:

Judge Graber’s dissental provides many excellent reasons why this case should have been reheard en banc. I write only to suggest an alternative reading of Descamps ’s footnote 2, one that I believe better reconciles the footnote’s text with the rest of the Court’s opinion.

In my view, footnote 2 indicates that, when confronted with a statute phrased in the disjunctive, we should look to the Shepard documents for the limited purpose of determining what that statute’s elements are. Footnote 2 states, “Whatever a statute lists (whether elements or means), the [Shepard ] documents ... reflect the crime’s elements.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2285 , 186 L.Ed.2d 438 (2013) (emphasis added). It also says, “When a state law is drafted in the alternative, [a] court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.” Id. (emphasis added). These sentences clearly indicate that the Court believed a crime’s elements can be discerned from the Shepard documents, and that we are permitted to look to them for that purpose.

This does not mean, however, that…

ORDER

The panel has voted to deny the petition for panel rehearing.

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R.App. P. 35. The sua sponte en banc call is rejected.

*467 Judge Kozinski’s dissent from denial of rehearing en banc and Judge Graber’s dissent from denial of rehearing en banc are filed concurrently with this Order.

I respectfully but emphatically dissent from the denial of rehearing en banc. When applying the modified categorical approach, what must we do when we confront a textually disjunctive statute and are uncertain which statutory alternative underlies a previous conviction? The Supreme Court has answered that question in no uncertain terms: in the face of a disjunctive statute, we consult the documents of conviction, also known as the “Shepard documents,” to learn whether what the jury actually found, or what the defendant actually pleaded to, matches the federal definition of the relevant crime. The Court even told us what not to do: we need not parse state law to determine whether the statutory alternatives…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO RENDON, No. 10-72239 Petitioner, Agency No. v. A092-080-719

ERIC H. HOLDER, JR., Attorney General, ORDER Respondent.

Filed April 2, 2015

Before: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges.

Order; Dissent by Judge Graber; Dissent by Judge Kozinski SUMMARY*

Immigration

The panel filed an order denying a petition for panel rehearing and, on behalf of the court, rejecting a sua sponte en banc call.

In its opinion filed August 22, 2014, the panel granted Carlos Alberto Rendon’s petition for review from the Board of Immigration Appeals’ decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary, in violation of California Penal Code § 459. The panel held that under Descamps v. United States, 133 S. Ct. 2276 (2013), § 459 is indivisible and its use of disjunctive language did not render it divisible. The panel held that determining whether a disjunctively worded statute is divisible…