U.S. v. Arriaga-Pinon, No. 16-50188 (4-7-17)(Thomas w/Kleinfeld & Nguyen; concurrence by Thomas).  The 9th vacates a 1326 sentence and remands.  The 9th holds that the court erred in applying the modified categorical approach to find Cal Vehicle Code sec. 10851(a) (agg felony theft) an aggravated felony.

The defendant was convicted of a 1326(a) and (b). His prior conviction, the agg felony theft of a car, was deemed an agg felony under the state statute.  At the prior state plea colloquy, the defendant admitted to either unlawful driving or taking the car.   Although the 9th has previously held that this statute is divisible, and therefore the modified categorical approach can be applied to the divisible sections, the defendant argued that under Mathis v. U.S., 136 S. Ct 2243 (2016), the statute must be regarded as indivisible.  Mathis employs approaches to determining whether a statute is regarded as divisible because it lists elements disjunctively or indivisible because it enumerates various factual means.  The 9th sidestepped whether Mathis overturns precedent because, under the facts presented in this case, the defendant had pled nolo, to the statute; he did not describe specific details, and the record is ambiguous.  Finding an agg felony is error.

Concurring, after writing the majority, Thomas states that he regards Mathis as altering the legal landscape, and therefore requiring a reexamination in the appropriate case.

Congrats to Kara Hartzler of the Fed Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/07/16-50188.pdf