United States v. Chandler, No. 12-10331 (2-20-14)(Per curiam with Tashima and Wood; concurrence by Bybee.)
The 9th affirms an ACCA enhanced sentencing. The prior Nevada felonies were robbery, conspiracy to rob, and kidnapping. The conspiracy analysis under United States v. Mendez, 992 F.2d 1488 (9th Cir. 1992), looks at the object of the conspiracy for COV determination. Concurring, Bybee, joined by the others, questions the validity of Mendez. The categorical approach in 1992 is different than now, and it is illogical to hold the elements to be the same in the two offenses. There is a circuit split on this issue. Thus, Bybee calls for en banc consideration.