Santos Sanchez v. Eric Holder, Jr.

MEMORANDUM

1. Sanchez concedes that conviction under Oregon Revised Statutes section 163.165(l)(e) “does require an intent to injure, and that injury be caused,” but he claims that “even intentional injury[] can be caused without the use of force.” Categorical analysis “requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” United States v. Lawrence, 627 F.3d 1281, 1287 (9th Cir.2010) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 , 127 S.Ct. 815 , 166 L.Ed.2d 683 (2007)). Sanchez has not “point[ed] to ... cases in which the state courts in fact did apply [section 163.165(l)(e) ] in the special (nongeneric) manner for which he argues,” id. (quoting Duenas-Alvarez, 549 U.S. at 193 , 127 S.Ct. 815 ), and we have found none. Indeed, in construing section 163.165(l)(a), the Oregon Supreme Court has defined “causes” to mean “brings about, makes, or effects by force,” State v. Murray, 343 Or. 48 , 162 P.3d 255, 257, 260 (2007) (emphasis added), and we see no reason to define the word differently in section 163.165(l)(e). Therefore, we find “no realistic probability…