Case o' The Week: Godot Arrives (and We'd Rather Have Kept Waiting) - Aguila Montes de Oca En Banc

Seventeen months after oral argument, the Ninth Circuit has finally delivered its en banc decision in Aguila-Montes de Oca. Judge Berzon gives us a candid summary of the long-awaited majority decision.

"In adopting its fact-based approach, the majority overrules our circuit’s controlling precedent; dismisses as 'dicta' and 'illustrative' the Supreme Court’s clear guidance on this very question, . . . misinterprets Taylor and Shepard; ignores the constraints of the Sixth Amendment, as developed in the Apprendi line of cases; misapprehends several essential characteristics of our nation’s institutions of criminal justice; and refuses to follow the limited modified categorical approach adopted by every circuit that has addressed the question since the Supreme Court made the proper approach lucidly clear in the last few years—in particular, since Johnson and Nijhawan."

United States v. Aguila Montes de Oca, 2011 WL 3506442 (9th Cir. Aug. 11, 2011) (en banc), *28 (Berzon, J., concurring in judgment). Decision available here.


Players: Hard-fought victory for the client of San Diego AFD’s Steve Hubachek and Vince Brunkow. Majority decision by Judge Bybee (below right), dissent by Judge Berzon (above left).

Facts: Aguila was convicted of burglary in California. Id. at *25. Unlike the “generic” federal definition of burglary, the California offense does not require “unlawful or unprivileged” entry into the dwelling. Id. at *26. He was later convicted of illegal reentry, and given a ten year sentence. Id. at *2. The district judge held that the burg conviction qualified as a “crime of violence” under the guidelines, and increased the sentence by 16 offense levels. Id.

The Ninth (ultimately) reversed, holding that its decision in Navarro-Lopez meant that California burgs were categorically barred as “crimes of violence,” because the state statute was missing an element of the generic offense. Id. at *3. The case went en banc, and was argued (beautifully, by Mr. Hubachek) in March of 2010.

Issue(s): “We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez . . . , to govern application of the modified categorical approach . . . . In Navarro-Lopez, we stated that the modified categorical approach applies when the particular elements in the crime of conviction are broader than the generic crime. We then declared: ‘When the crime of conviction is missing an element of the generic crime altogether, we can never find that a jury was actually required to find all the elements of the generic crime.’” Id. at *1 (citations omitted).

Held: “[W]e conclude that Navarro-Lopez’s ‘missing element” rule is not required by the Supreme Court’s modified categorical approach established in Taylor.’” Id. at *2. “In sum, Navarro-Lopez’s ‘missing element’ rule is overruled, as are any subsequent cases to the extent that they relied on that rule and are inconsistent with the revised modified categorical approach discussed here. In any case requiring the application of Taylor’s categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id. at *21.

Of Note: A one-vote majority killed the great Navarro-Lopez rule and line of cases. Judge Berzon’s "dissent" (one vote shy), is a masterpiece that – shall we say, “takes issue” – with Judge Bybee’s majority view. Id. at *27. With great detail, Judge Berzon shows why controlling Supreme Court authority (and the law of other circuits) precludes the majority’s novel rule. See id. at *29-*32 (discussing Supreme’s Nijhawan and Johnson cases). We predict another white quill for Hubachek: if the Ninth doesn’t correct this decision with super en banc review, watch for a cert. grant soon.

How to Use: The defense bar lost the war (for now), in Aguila Montes de Oca, but read the opinion closely – Aguila won his own battle. Id. at *21-*27. Applying the modified categorical analysis to Aguila’s burg, a different majority concludes that it does not qualify as a generic burglary. Id. at *26. (In fact, we predict that precious few Cal burgs will qualify under this modified categorical analysis).

This point bears much emphasis: Aguila Montes de Oca does not hold that a Cal burg, or statutory rape, or kidnaping, or escape, any other state offense now automatically qualifies as a federal generic crime. The en banc decision instead holds that the district court must now undertake a modified categorical analysis for a certain class of state convictions. This new analysis will use a novel standard created by Judge Bybee (“what facts the conviction necessarily rested on”) that cries out for defense challenge and mischief-making. Let’s oblige.

For Further Reading: As wisely crooned by Mr. Garcia, “lately it occurs to me what a long, strange trip it’s been.”

For a survey of the Ninth’s strange Taylor trip, hit this link for years of sentencing summaries on the categorical and modified categorical analysis. (Practice tip: This compilation is a useful flag for the many future Aguila Montes de Oca battles that we’ll be fighting).


Image of Godot poster from http://www.rangzen.net/2010/03/19/waiting-for-mangtso-iii/

Image of the Honorable Judge Marsha Berzon from http://www.c-spanvideo.org/marshaberzon

Image of the Honorable Judge Jay Bybee from http://abovethelaw.com/stephen-reinhardt/

Image for the Grateful Dead T-Shirt from http://www.allposters.com/-sp/Grateful-Dead-GD-Truckin-Posters_i3443450_.htm


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



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