Case o' The Week: Ninth Avoids Constitutional Avoidance, Grisel

In an unusual, but welcome, alliance, Judge Graber (Right) authors a good en banc decision joined by Judges Pregerson, Reinhardt (Left), Berzon and others. United States v. Grisel, __ F.3d __, Slip. Op. at 6735 (9th Cir. June 5, 2007) (en banc), decision available here. In Grisel, the Ninth undertakes an exacting analysis of the Taylor definition of burglary, reverses an earlier decision, and holds that Oregon Second Degree burglary is not a categorical predicate for the Armed Career Criminal Act (ACCA). The only dark cloud in this sunny picture is the Ninth's rejection of Steve Sady's attack using the doctrine of constitutional avoidance (more briefing available here).

Players: Judge Graber authors, Judge Bea dissents. Big amicus assist by Oregon Chief Deputy FPD Stephen Sady.

Facts: Grisel pleaded guilty to felon in possession, 18 USC § 922(g)(1). Slip Op. at 6739. At sentencing, he objected to the use of seven prior second degree Oregon burglary convictions. Id. The district court overruled his objections, and sentenced under ACCA to the 180 mand-min term. Id.

Issue(s): 1. “First, Defendant urges that the doctrine of constitutional avoidance required that we not apply the rule of Almendarez-Torres. . . , that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity.”

2. “We took this case en banc primarily to reexamine the validity of United States v. Cunningham . . . In Cunningham, we held that second-degree burglary under Oregon law is a categorical offense under the analysis required by Taylor . . . .” Id. at 6738-39.

Held: 1. [Re: Almendarez-Torres and “doctrine of constitutional avoidance”]: “The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.” Id. at 6741.

2. “[S]econd degree burglary under Oregon law is not a categorical burglary for purposes of the ACCA because it encompasses crimes that fall outside the federal definition of generic burglary. We therefore overrule our contrary holding in Cunningham . . . .” Id. at 6748.

Of Note: Grisel hurts: it essentially avoids the doctrine of constitutional avoidance. Id. at 6739-41. Readers of the Ninth Circuit blog know that this attack has long been Stephen Sady’s crusade. Still worth raising Sady’s excellent challenge? Yep. Remember that Olano plain error is what clobbered many of our post-conviction clients in the immediate wake of Apprendi. Little harm in preserving this objection in open-plea cases: who knows if and when the other Almendarez-Torres shoe will drop?

How to Use: Grisel helps in categorical-analysis cases. The dissent (Judges Bea, Kleinfeld and Tallman) complain that this analysis is just “technicalities” – the Supreme Court, and Congress, would want Grisel’s Oregon priors to count as ACCA predicates. Id. at 6750 (A worrisome red cape before the Supreme Court bull, this dissent).

In any event, the majority opinion is useful because it refuses to second-guess Congressional intent: it reads the Supreme Court’s exact definition of burglary in Taylor, and (correctly) finds that Oregon’s definition is broader – too broad, in fact. Demand this same depth of analysis in your next categorical challenge to a state prior at sentencing.

For Further Reading: It is rumored that Ninth Circuit judges have referred to the categorical/modified-categorical goo of jurisprudence as a “judicial crisis.” The Court seems to have decided to do something about the mess, if recent slip ops are any indication. The day after Grisel, Judge Beezer authored United States v. Navaraez-Gomez, Slip. Op. 6845 (9th Cir. June 6, 2007), decision available here. In that case, the Ninth concludes Cal Penal Code § 245 – shooting a gun at an inhabited house or dwelling – is not a categorical crime of violence because it can include reckless conduct. Id. at 6857.

In United States v. Beltran-Munguia, Slip. Op. 6873 (9th Cir. June 7, 2007), decision available here, decided two days after Grisel, Judge Berzon explained that Oregon Second Degree sexual abuse is not a categorical crime of violence under USSG § 2L1.2 [the illegal reentry guideline]. Id. at 6884.

In sum, the defense bar was 3-0 last week (even in the Ninth, we rarely have weeks that good -- when we do, they're worth of noting).

The N.D. Cal. FPD has put together a chart of the jumble of Ninth Circuit categorical holdings, for California state offenses and ACCA, § 2L1.2 and § 4B1.2. We’ll be distributing this chart at our June 16 CJA conference; defense counsel who don’t attend can contact our office for a copy.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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