US v. Baldon, No. 18-10411 (4-21-20)(Bennett, Lee, & Piersol). This is a categorical guidelines decision involving California’s carjacking statute, 215. The defendant pled guilty to being a prohibited felon with a firearm. The sentencing court enhanced upwards for a prior COV: the state carjacking. The 9th found it was not a COV, but held a prior precedent was abrogated.

In Stokeling v. US, 139 S. Ct 544 (2019), the Supremes revisited Johnson and clarified that “any force” is force enough for a COV if it will overcome a victim’s resistance. Prior 9th precedent, Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), is irreconcilable with this holding and so is abrogated.

However, the state statute is still not a categorical COV for a different reason.  The state statute is overbroad.  It criminalizes “threat to property” in carjacking and not simply threat to the person. The state defines its carjacking more broadly than 4B1.2(a)(1) by not limiting fear solely to persons. The state jury instructions so define the act. And, there is a state court decision. It is not beyond the realm of imagination, as the government argues.  The offense is also not a match with the enumerated offenses.

Substantively, the 9th finds sufficient evidence that the defendant possessed the gun or knew of its presence.

The sentence is vacated and remanded.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/21/18-10411.pdf