Judge Kozinski (left) sits on two panels last week, with two disappointing results for the Taylor categorical analysis of state statutes. Nonetheless, former San Diego Community Assistant Defender Ben Coleman gives the panel a run for their money in an admirable challenge. See United States v. Gomez-Mendez, __ F.3d __, Slip. Op. 5651 (9th Cir. May 14, 2007), decision available here.
Players: Creative and aggressive challenge by Buckland counsel Ben Coleman (formerly of the San Diego Community Defender).
Facts: Gomez-Mendez pleaded guilty to illegal reentry. Slip. op. at 5655. He had suffered a conviction under Cal. Penal Code §261.5(d), for unlawful sex with a minor. Id. At sentencing, the court imposed a sixteen offense-level specific offense adjustment, treating this conviction as a “crime of violence” under USSG § 2L1.2. Id. Moreover, the government refused to move for the reduction of the third offense level for acceptance at sentencing: the district court made no findings about this refusal. Id.
Issue(s): 1. “We are asked to decide whether a defendant’s prior California conviction for unlawful sexual intercourse with a minor qualifies as a ‘crime of violence’ under the federal Sentencing Guidelines.” Id. at 5654.
2. “[W]e consider Gomez-Mendez’s argument that the district court erred in failing to apply an additional one-level reduction for timely acceptance of responsibility under U.S.S.G. § 3E1.1(b) because the government improperly refused to file a motion under that provision.” Id. at 5665 (footnote omitted).
Held: 1. “[W]e affirm the district court’s determination that Gomez-Mendez’s prior conviction for unlawful sexual intercourse by a person at least twenty-one years old with a minor under sixteen years old under Cal. Penal Code § 261.5(d) qualifies as a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id. at 5666.
2. “We remand this case to the district court for further proceedings to determine whether the government improperly refused to file a motion under U.S.S.G. § 3E1.1(b).” Id. at 5666.
Of Note: This is one of a pair of disappointing decisions on the Taylor categorical analysis decided last week. See also United States v. Carson, Slip Op. 5743 (9th Cir. May 15, 2007) (finding Washington assault statute categorically a “crime of violence” for § 4B1.2), decision available here. While both cases are defense losses (and thus neither can be commended), Gomez-Mendez presents a far better explanation of the Taylor categorical analysis.
One troubling aspect of the Carson decision is its eagerness to switch the burden on the defense. Specifically, Carson requires the defense to establish that a statute is overbroad, and thus cannot serve as a categorical predicate. Carson, slip. op. at 5748 (citing Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815, 822 (2007)). Keep on eye on this troubling trend, sparked by Justice Breyer in the Duenas “theft offense” decision earlier this year.
The silver lining? The Court in Gomez-Mendez remands for factual findings on that safe-haven of the lazy prosecutor: the government’s refusal to move for the third acceptance point despite an open plea. When Espinoza-Cano was decided a year ago, we promised AUSAs would abuse this inane guideline: unfortunately, we were right.
How to Use: Pit bull Coleman shows how it is done in Carson. In a “dead” § 1326 case, he challenges the categorical characterization six ways from Sunday, including the lack of an affirmative defense to “sex with a minor.” Gomez-Mendez, Slip op. at 5659. Note Kozinski leaves open the possibility that a lack of affirmative defenses can derail a categorical categorization of a state crime as a “generic offense.” Id. at 5661.
To top it off, Ben revives the old Apprendi challenge to § 1326, arguing that the statute had changed since previous cases rejecting that attack. Id. at 5663. Want a defense primer on how to mount a no-holds barred attack on a categorical approach to a state crime? Gomez-Mendez, and Ben’s briefing, is the place to start.
For Further Reading: DOJ has proposed a new guideline for “acceptance of responsibility.” A defendant who pleads open, but files motions, gets no reduction. An open plea with no litigation gets one offense-level off. A pre-indictment plea earns a two-offense level reduction. If the defendant pleads before indigent counsel is appointed (thus saving government resources), she earns the three-level reduction. To read this proposed amendment in its entirety, visit the DOJ website here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org