Case o' The Week: End of the Line - Acevedo-De La Cruz and "Crime of Violence" in (the old) Reentry Guidelines

The Hon. Judge Sandra Ikuta

A long era of highly-contested sentencing and appellate litigation ends: the Ninth issues its last illegal reentry sentencing guideline opinion.

  (More or less).

  United States v. Acevedo-De La Cruz, 2017 Westlaw 56299 (9th Cir. Jan. 5, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Bea and DJ Restani.

Facts: Acevedo-De La Cruz was convicted of Cal. Penal Code § 273.6(d), for a violation of a protective order involving an act of violence or credible threat of violence. He was then deported. Id. at *2.

  He reentered the U.S., was convicted of Section 1326(a), and was sentenced in April 2015. (Ed. Note: NB, before the new § 2L1.2 guideline went into effect on Nov. 1, 2016).

  The district court held that the “violation of a protective order” prior was a “categorical crime of violence” warranting the +16 OL hit under the (old) reentry guideline. Id. at *2.

Issue(s): “This appeal raises the question whether a violation of a protective order involving an act of violence or credible threat of violence in violation of section 273.6(d) . . . is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines . . . .” Id. at *1.

Held: “We review de novo the district court’s determination that Genaro Acevedo-De La Cruz’s prior conviction constitutes a crime of violence . . . and we affirm.” Id. at *1 (citation omitted). 

  “While Acevedo-De La Cruz correctly notes that dictionaries have provided other definitions of ‘violence,’ including the expression of vehement feelings, he fails to point us to any ‘cases in which the state courts in fact did apply [section 273.6(d)] in the special (nongeneric) manner for which he argues.’ . . . Nor has he otherwise demonstrated that there is’a realistic probability, not a theoretical possibility’ that California would deem the term ‘violence’ to include rhetorical vehemence, without more, for purposes of aviolation of section 273.6(d) . . . . Therefore, Acevedo-De La Cruz’s contention that the California legislature intended ‘violence’ under section 273.6(d) to mean the expression of vehement feeling without physical force relies on ‘legal imagination.’ . . . . We conclude that ‘a credible threat of violence’ under section 273.6(d) does not criminalize more conduct than the threatened use of physical force for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. We therefore hold that a conviction under section 273.6(d)of the California Penal Code is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. The district court did not err in adding a 16-level enhancement to Acevedo-De La Cruz's sentence.’ Id. at *3.

Of Note: This case is three days old and is already yesterday’s news. After herculean efforts to drag out sentencings past Nov. 1, 2016, all of our § 1326 clients are now in the new § 2L1.2 world. See the new guideline here.

  Acevedo-De La Cruz, by contrast, is interpreting the crime of violence definition of the pre-Nov. 1, 2016 guideline definition. “Crime of violence” remains in the new guideline, but only in the context of misdemeanor crimes of violence. See, e.g. § 2L1.2(b)(2)(E).

  As a new administration (and a new DOJ) ramps up immigration prosecutions, it is worth revisiting the significant changes from the Sentencing Commission to the old reentry guidelines. For a Commission worksheet on how to unpack the new specific offense characteristics of the 11/1/16 reentry guideline, see here. 

How to Use: More interesting than the holding in this opinion is the Court’s approach in concluding that Section 273.6(d) is categorically a “crime of violence” (at least, under the old reentry guideline). Id. at *3. Judge Ikuta’s narrow reading of “violence” is worth cautious consideration for Johnson folks – another piece of the C.O.V. puzzle. Id. at *2-*3.

                                               

For Further Reading: NorCal, god bless her, is admirably rich in sanctuary cities. Can a new administration force our sheriffs to warehouse aliens in local jails until ICE agents mosey over for their (unMirandized) interviews, § 1326 referrals, and federal detainers?

  For an interesting discussion of the federalism and funding fights on the horizon, see a Politico article here.

  Litigation coming soon, to a ND Cal DJ near you . . . .

Image of the Honorable Judge Sandra Ikuta from https://en.wikipedia.org/wiki/Sandra_Segal_Ikuta , By United States Courts - http://news.uscourts.gov/new-chairs-named-judicial-conference-committees, Public Domain, https://commons.wikimedia.org/w/index.php?curid=36109912

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org