Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG § 2L1.2, Aguila-Montes de Oca

A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG § 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan. 20, 2009), decision available here.

Players: Big win for San Diego AFPD Vince Brunkow, with assist by Steve Hubachek. Decision by Judge Thompson, (brief) dissent by Judge Gould.

Facts: After trial Aguila-Montes was sentenced 120 months for illegal reentry. Id. at *1. That whopping sentence was triggered by a +16 offense level increase for a California first degree burglary conviction (Penal Code § 459), characterized by the district court as a “crime of violence.” Id.

In the first panel decision, Judge Thompson wrote that this § 459 conviction qualified for the +16 OL bump under the “modified categorical approach.” 523 F.3d 1071, 1078 (2008) (withdrawn). Aguila-Montes petitioned for rehearing: the January 20th decision that is the subject of this memo is the revised decision.

Issue(s): “Aguila-Montes argues that because this 1988 state conviction could have been based upon criminal liability for conduct not included within the definition of burglary of a dwelling in section 2L1.2 of the Guidelines, the district court erred in applying the sixteen-level sentence enhancement.” Id. at *1.

Held: “Because California Penal Code section 459 does not require that an entry in the burglary context be ‘unlawful or unprivileged,’ the California statute lacks an element included in the generic definition of burglary of a dwelling incorporated into the Guidelines. Using a categorical approach, the two offenses do not ‘match.’ The modified categorical approach may not be applied to establish the missing element, and as a result, Aguila-Montes’s state conviction of first degree residential burglary is not a prior conviction of a crime of violence under section 2L1.2(b)(1)(A) of the Guidelines.” Id. at *4.

Of Note: The San Diego Defender deserves recognition for this victory, and for its aggressive litigation strategy on this issue. Attorneys in that office have been hanging tough on cases that involve a California burglary as a +16 OL specific offense adjustment – and are now being rewarded with better offers or great prospects on appeal. It is interesting to speculate how much custody time this decision will save illegal reentry defendants in border districts: many, many decades, safe to say.

How to Use: The important new rule of Aguila-Montes de Oca is that California burg convictions can never be +16 OL “violent” felonies in illegal reentry cases. The decision is also important, however, for its solid endorsement of the broader Navarro-Lopez rule: in the Ninth Circuit, if a state conviction doesn’t include the elements of the “generic” crime in the Taylor categorical analysis a court can’t move on to the modified categorical analysis. See blog here on Navarro-Lopez.

That broader Navarro-Lopez principle is a welcome rule far beyond the illegal reentry context; it is a limitation that squarely applies in Career Offender, ACCA, and 2K2.1 (felon in possession) cases as well.

For Further Reading: This win was a long time coming, and was presaged by Judge Milan Smith in his dissent in Snellenberger. See blog here.

Is the victory safe? Appellate guru Steve Hubachek thinks so: he notes that the Ninth unanimously relied on Navarro-Lopez’s reading of Taylor in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. Oct. 20, 2008) (en banc). The application of Taylor and Navarro-Lopez in the immigration context may remain controversial (see the cert. grant in Nijhawan v. Mukasey, blog summary here) but the dust has now settled on the Navarro-Lopez rule for criminal cases (at least in the Ninth).


Image of California Penal Code from http://upload.wikimedia.org/wikipedia/commons/b/b5/Californiapenalcode.jpg

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


NB: On February 3, 2010, the Ninth Circuit granted the government's petition for rehearing en banc on Aguila-Montes de Oca:

02/03/2010

FILED ORDER FOR PUBLICATION (ALEX KOZINSKI) UPON THE VOTE OF A MAJORITY OF NONRECUSED ACTIVE JUDGES, IT IS ORDERED THAT THIS CASE BE REHEARD EN BANC PURSUANT TO CIRCUIT RULE 35-3. THE THREE-JUDGE PANEL OPINION SHALL NOT BE CITED AS PRECEDENT BY OR TO ANY COURT OF THE NINTH CIRCUIT.[7218682] (RP)

Be sure to check the status of this opinion before citing it.

~SGK

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