US v. Aguila-Montes de Oca, No. 05-50170 (8-11-11) (en banc) (per curiam).

One hundred twenty-three pages of analysis in a per curiam opinion with fractured majorities, reluctant concurrences, strained logic, misreading of precedents, one compelling dissent, another mystifying dissent, snipping amongst the judges, and a mess of the categorical and modified categorical approaches. So what happened?

1. If a prior conviction is missing a generic element, the 9th decides that it can now use a modified categorical approach. The 9th therefore overrules Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). Writing for one majority, Bybee tortures Taylor and Shepard to allow a court to look to facts supposedly necessary for a jury to find to support a missing element for a prior generic conviction.

2. Yet, applying that analysis to California Penal Code 459 and first degree burglary, a different majority overrules precedent that held it is a crime of violence for 2L1.2 purposes if the indictment or jury verdict has the allegation of "unlawful entry." The California statute is broader than the generic definition because its definition of "unlawful" allows for a privileged or consensual entry into a structure with felonious intent. In this case, the defendant's prior cannot be used as a crime of violence in a 2L1.2.

3. Berzon, in a compelling dissent (and concurrence for the burglary overrule), joined by Kozinski, W. Fletcher, M. Smith and N. Smith, writes a treatise on how wrong the majority is to overrule Navarro-Lopez. It is wrong because of Supremes precedent, which seeks to limit judicial fact-finding, and only uses a modified categorical approach in divisible statute matters. It is wrong because it misreads the approaches of other circuits. It is wrong because pragmatically, it creates a mess. It is wrong because it misreads so much.

4. Rawlison, joined by Gould, Silverman and Callahan, join Bybee in overruling Navarro-Lopez, but would go further and find that California's first degree burglary is a crime of violence because unlawful is unlawful. The dissent ends by saying that of course burglaries are violent.

All in all, a very strange opinion that calls out for a super-en banc or Supremes review for allowing a modified categorical approach in a "missing element" conviction.

Congrats to Steve Hubachek and Vince Brunkow of the Federal Defenders of San Diego for winning the case for their client.