Case o' The Week: Ninth Resistant to Resisting - Flores-Cordero, Taylor Analysis, and Descamps
In 2009, Judge Milan Smith first (correctly) explained important limitations of the modified categorical analysis when examining a state burglary prior. See Aguila Montes de Oca blog, here.
Four years, an en banc decision, and a Supreme Court reversal later, the Ninth is now back on Judge Smith’s track.
|The Hon. Mary Schroeder|
United States v. Flores-Cordero, 2013 WL 3821604 (9th Cir. July 25, 2013), decision available here.
Players: Decision by Judge Schroeder, joined by Judge Callahan and District Judge Vance.
Facts: Flores-Cordero pled guilty to illegal reentry. Id. The district court held that an Arizona prior for “resisting arrest” was a “crime of violence” under the illegal reentry guideline. Id.
Issue(s): “The issue in this sentencing appeal is whether the defendant’s prior Arizona conviction for resisting arrest is a ‘crime of violence’ that authorized a sixteen-level increase to the base offense level under United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2.” Id. at *1.
Held: “On the basis of decision of the Arizona courts that we must follow in ascertaining the scope of the Arizona criminal statute, we hold that the prior conviction was not categorically a crime of violence and therefore vacate the sentence and remand for resentencing.” Id.
Of Note: Judge Schroeder pens a thoughtful decision, first explaining that controlling Supreme Court authority requires “force capable of inflicting pain or causing serious injury” for a prior to constitute a “crime of violence” under this guideline. Id. at *2-*3 (discussing Johnson v. United States, 559 U.S. 133 (2010)). She also explains that “the nature of a prior state conviction is determined by state law.” Id. at *2 (emphasis added). In Arizona, it is possible to resist arrest by getting into a minor scuffle while being handcuffed. Id. at *3 (discussing State v. Lee, 217 Ariz. 514 (Ariz. Ct. App. 2008). Because Arizona doesn’t require “pain or serious injury” to sustain a conviction for resisting arrest, a “conviction of ‘resisting arrest’ under Arizona law is not categorically a crime of violence within the meaning of federal law.” Id. at *4. The coup de grace? Judge Schroeder invokes the handy Miller v. Gammie principle, finds that Johnson has changed the rules of the game, and discards (as a three-judge panel) previous Ninth precedent. Id. Great case, great illustration of how to carefully dissect the complicated Taylor analysis of sentencing priors.
How to Use: Not long ago, the win above would have only been halfway home. Under the Ninth’s controversial and novel Aguila-Montes de Oca approach, the Court would have then had to wade into a confusing modified categorical morass.
No more. Id. at *4.
Judge Schroeder trumpets (well, notes) the Supreme Court’s reversal of AMdO in Descamps v. Unites States, 133 S.Ct 2276 (2013). Id. (“The Supreme Court, however, has decided Descamps and has held that the modified categorical approach should not be applied when the statute of prior conviction is indivisible.”) Judge Schroeder catches the government agreeing to the subsection of this statute in the PSR – and because that subsection is not a “divisible statute with alternative elements,” Descamps means the government gets no second bite with a modified categorical apple. Flores-Cordero shows Descamps in action – for a great primer on this great Supreme Court decision, visit Steve Sady’s helpful Q&A on Descamps here .
For Further Reading: Last Tuesday ED Va Federal Defender Michael Nachmanoff testifiedhere .
Image of the Honorable Judge Mary Schroeder from http://www.law.asu.edu/images/Administration/Communication/News/2008/schroeder250.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org