Case o' The Week: Mathis Path Is Blocked, for Walker - Walker and Proof of ACCA Predicates

  In a previous bout with Mathis, Judge Bybee admitted to being “frustrated with the whole endeavor.” United States v. Martinez-Lopez, 864 F.3d 1034, 1058 (9th Cir. 2017) (Bybee, J., “concurring in part and dissenting in part, but frustrated with the whole endeavor.”)

The Hon. Judge Bybee

   He seems less frustrated, this time around. (Unfortunately).

United States v. Walker, 953 F.3d 577 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith and visiting Judge Melloy. 

  Hard-fought appeal by ED Cal AFPD Peggy Sasso.  

Facts: Walker pleaded guilty to being a felon in possession of a firearm. Id. at *578. He had three prior convictions for “willfully inflicting corporal injury” on a spouse or cohabitant, in violation of California Penal code § 273.5: one in 1998, a second in ’99, and a third in 2014. Id.

  Walker did not admit to having been convicted of these felonies, so the government presented certified copies of the prior judgments. Id. The district court determined that Walker had previously been convicted of three separate violent felonies, triggering a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Id.

Issue(s): Walker “argues that it was error under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), for the district court to have determined that his prior convictions were separate incidents, and that such determination had to be made by a jury.” Id.

  “To get around [Ninth Circuit precedent in] Grisel, Walker claims that the case has been implicitly overruled by Mathis v. United States, . . . 136 S. Ct. 2243, 2253 . . . (2016). Specifically, he points to discussions in Mathis explaining that a ‘non-elemental fact’ cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his prior convictions are non-elemental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.” Id. at 581.

Held: “Context, however, shows that Mathis is not so encompassing as to abrogate Grisel.” Id.

  “With no on-point discussion in Mathis regarding how judges determine the number of prior offenses, Walker fails to show that Grisel “is clearly irreconcilable with [Mathis’s] reasoning or theory.” Miller, 335 F.3d at 893. To the extent that Mathis expresses broader disfavor of factual determinations by sentencing judges, it is not clear whether and how this disfavor extends beyond determining that a given state-law crime is an ACCA predicate . . . Pointing to “’some tension’ between [stray statements in Mathis] and prior circuit precedent” is not enough for the panel to consider Grisel overruled. Lair, 697 F.3d at 1207. In finding that Walker had been convicted of three or more violent felonies, the sentencing judge needed to look no further than the face of the certified judgments to determine these convictions were for distinct acts.” Id. at 581.

Of Note: Judge Bybee’s disappointing reading of the Supreme Court’s decision in Mathis is not the only bad news in this ACCA decision. The Ninth also rejects defense arguments that California D.V. cases under Cal. Penal Code § 273.5 are not crimes of violence. See id. at 579-80.

  A tough decision all around, for those fighting the staggering mand-mins in ACCA cases.

How to Use: Because Ninth precedent confronted Walker at every turn, the leitmotif of his appeal was trumpeting intervening Supreme Court precedent on the categorical approach and ACCA predicates. As a result, Judge Bybee spends much of this short opinion arguing why old Ninth cases dodge new SCOTUS bullets. See, e.g., id. at 580 (discussing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), in context of challenge to Cal. P.C. § 273.5); id. at 581 (discussing Miller in context of Mathis’s limitations of judicial findings for predicate offenses).

  Putting aside the persuasiveness of Walker’s Miller analysis, it is a decision worth a read if you’re urging a three-judge panel to correct bad Ninth law after an intervening Supreme Court opinion.

                                               

For Further Reading: San Francisco’s most iconic symbol, the Golden Gate Bridge, hosted another iconic Bay tradition: a peaceful protest. Yesterday thousands of marchers shut down the bridge, protesting the killing of George Floyd and systemic police racism and violence. See article and video here. 

  Look for more protests by public defenders tomorrow, in the Bay Area and across the country.

Image of the Honorable Judge Bybee from https://www.youtube.com/watch?v=i39zEPuZr7c

Image of Golden Gate Bridge protestors from https://abc7news.com/golden-gate-bridge-march-on-george-floyd-protest/6235202/

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

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Case o' The Week: Congress takes the First Step, Ninth takes the Second -- Valencia-Mendoza and use of state priors as federal sentencing enhancements

The federal government of the United States just entered its longest shutdown in history.

Federal courts will run out of money next week.

Public defenders will soon join their CJA comrades and will be expected to mount vigorous, constitutionally-mandated defenses for our indigent clients – without pay.

  

Great news from the Ninth couldn’t come at a better time.

United States v. Valencia-Mendoza, 2019 WL 149827 (9th Cir. Jan. 10, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judges McKeown and Christen. Huge win for AFD William Miles Pope, Fed. Defenders of Eastern Washington & Idaho.  

Facts: Valencia-Medonza pleaded guilty to illegal reentry. Id. at *1. He received a +4 OL increase under USSG § 2L1.2, because of a prior Washington “felony” conviction. Id. 

  Commentary to § 2L1.2 defines a felony as an offense “punishable by imprisonment for a term exceeding one year.” Id. The stat max for this Washington prior was five years. Based on Ninth precedent, the D.J. imposed the bump. Id. 

  Under Washington’s mandatory sentencing range, however, the actual max that Valencia-Mendoza could have received was six months. Id.  

Issue(s): “We must decide whether Defendant’s state conviction was a ‘felony’ for purposes of the federal Sentencing Guideline. According to the government, the statutory maximum punishment for Defendant’s state offense was five years, so he was convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’ U.S.S.G. § 2L1.2 cmt. n.2. Defendant acknowledges the statutory maximum but argues that, because the maximum sentence that he actually could have received was only six months, he was not convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’” Id. at *3.

Held: “Our precedent required the district court to disregard the maximum term that Defendant actually could have received under state law, in favor of the maximum term that Defendant theoretically could have received if different factual circumstances were present. Reviewing de novo the interpretation of the Sentencing Guidelines . . . we conclude that later Supreme Court decisions are clearly irreconcilable with our precedent on this point. Accordingly, we vacate the sentence and remand for resentencing.” Id. at *1. (citation omitted).

“In sum, the Supreme Court has held that courts must consider both a crime’s statutory elements and sentencing factors when determining whether an offense is ‘punishable’ by a certain term of imprisonment.” Id. at *9.

The Hon. Judge Susan Graber

Of Note: Judge Graber’s terrific decision parts ways with the Ninth’s precedent in Rios-Beltran,361 F.3d 1204, 1208 (9th Cir. 2004). See id. at *4. The Ninth has historically looked at the stat max when evaluating the viability of state priors for federal sentencing. Id. With a nice Miller v. Gammie whammy, the Ninth now comes in line with SCOTUS (and the Fourth, Eighth and Tenth Circuits). Id. at *8. 

  (The decision is also consistent with the government’s position in the Fifth! See id. at *8 & n.4 (a particularly enjoyable footnote)).

  Valencia-Mendoza is a thorough and well-reasoned opinion. The decision also brings the Ninth squarely in line with a solid phalanx of out-of-circuit authority, and the Supreme Court. The government’s p.f.r.e.b. efforts (if it even bothers) should (we hope) die quickly on the vine.

How to Use: California famously used to have mid-range determinate sentencing below the “stat max” – a scheme that got the State sideways with SCOTUS and Apprendi. See Cunningham, 549 U.S. 270 (2007). The State then quickly scrambled for a fix after Cunningham – S.B. 40 and the later Realignment Act re-jiggered the sentencing schemes. See generally summary here. 

  Do Cali’s current “sentencing triads” trigger the same limitations for federal enhancements as the Washington system in Valencia-Mendoza? See generally  sentencing overview here. 

   Yup! (We think). 

  Like Sriracha, Valencia-Mendoza’s spicy bite tastes good on everything. Glop the analysis onto state priors the government tries to assert in USSG § 2L1.2, USSG § 2K2.1, Career Offender, § 922(g) charges, § 924(e)(2)(A) and § 3559(c)(2)(F)(ii) (First Step Act revised) cases, § 851 allegations, ACCA sentences – yum!

For Further Reading: On Friday January 11th, AO Director Duff informed the Judiciary that we are almost out of dough. 

  Furloughs and “work without pay” loom for federal court staff – and for Federal Public Defenders – on the 19th, if the shutdown isn’t resolved next week. See generally article here. 

Image of shutdown graph from https://www.bbc.com/news/world-us-canada-46848435  

Image of the Honorable Judge Susan Graber from https://law.lclark.edu/live/profiles/352-susan-p-graber 

"I heart Sriracha” image from https://shop.theoatmeal.com/products/sriracha-bumper-sticker

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

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Case o' The Week: Ninth Disinclined on Second Werle - Werle and Taylor / Johnson Analysis, "Crimes of Violence" and USSG Sec. 2K2.1

Batting .50 saves client 40. United States v. Justin Werle, 2017 WL 6346659 (9th Cir. Dec. 13, 2017), decision available here.

 Players: Per curiam decision by Judges O’Scannlain, Tallman, and Watford. Dogged appellate advocacy by ED WA AFPD Matt Campbell.

Facts: Werle pled guilty to § 922(g)(1), and possession of an unregistered gun. Id. at *1. The district court found qualifying prior crimes of violence, and deemed Werle subject to the ACCA’s fifteen-year mand-min. Id. 

  In the Ninth’s first Werle, a different panel held that a “riot” prior was not categorically a violent felony (hence no ACCA!), and remanded. Id., see also blog entry here. 

  On remand, the district court hit Werle with a guideline increase under USSG § 2K2.1(a). Id. The court found that prior Washington convictions for “felony harassment via a threat to kill” were crimes of violence, increased the offense level, and imposed a custodial term of 140 months. Id. at *15.

Issue(s): “Werle argues that the district court erred in concluding that his convictions for felony harassment under § 9A.46.020(2)(b)(ii) were crimes of violence.” Id. at *1. “Werle argues that § 9A.46.020(2)(b)(ii) is overbroad because

  (1) it lacks the requisite mens rea to constitute a threatened use of force,

  (2) it includes threats to kill in the distant future, and

  (3) it does not necessarily require threatened violent force.” Id. at *2.

Held: (1): “Werle’s argument is unavailing because § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry under § 4B1.2(a)(1), because requiring the state to prove additional elements only narrows the reach of the crime.” Id. at *3.

  (2) “[W]e find no support for any such immediacy requirement in the language of § 4B1.2(a)(1).” “[Section] 4B1.2(a)(1) does not contain the ‘substantial risk’ language used in § 16(b). Rather, § 4B1.2(a)(1) largely mirrors the language of § 16(a) and only requires a ‘threatened use of physical force,’ regardless of any substantial risk that the force will actually occur . . . . Id. at *3.

  (3) “Werle argues that a threat to kill does not necessarily include a threatened use of violent physical force, as required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), because one could kill someone via the application of poison or other non-forceful means. Werle may have luck with this argument in other circuits . . . but we have categorically rejected it . . . .. By threatening to kill, Werle necessarily threatened violent physical force.” Id. at *4 (citations omitted).

Of Note: Werle (I & II) are poster children for the complexity of the Taylor analysis. As noted above, Werle I was a big defense win. See 815 F.3d. 614 (9th Cir. 2016). In Werle I, the Ninth explained that “felony riot” was not a violent felony triggering the ACCA under Johnson. In Werle II, by contrast, the Ninth is looking at a different prior, and different definition for “crime of violence”: the definition used by USSG § 2K2.1. See Werle II, 2017 WL 6346659 at *3. Different prior, different definition, different outcome. Before despairing at this complexity, consider the results: Taylor and Johnson ultimately meant over three-years knocked off of Mr. Werle’s ACCA term. Well worth the “probe into the undergrowth of [the] . . . convictions,” as this panel put it. Id. at *2.

How to Use: We just touted the reverse use of the ACCA / Guidelines definitional whipsaw, in Rick Allen Jones. See blog entry here. 

  In Werle II, however, the Court rejects that approach in the context of § 16(b) and USSG § 4B1.2(a)(1) definitions. Id. at *3. 

  Tricky business, this: take care in the definitional analogues used when attacking a “violent crime” or “crime of violence” definition.

                                               

For Further Reading: 2018 may be a year of change, for the Ninth.

  Seven of twenty-nine (24%) of Ninth Circuit judgeships are now or will be open in 2018, awaiting appointments by President Trump and Senate confirmations. See Ninth Circuit report here. 

Image of edited holiday greetings from https://stjohnslegalenglishdotcom.files.wordpress.com/2016/12/img_0922.jpg?w=584

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: A Present in the Johnson Stocking - Jones, Arizona Armed Robbery, and ACCA "Crime of Violence"

 Merry Christmas, and Happy New Year, Mr. Jones.

United States v. Rick Allen Jones, 2017 WL 6395827 (9th Cir. Dec. 15, 2017), decision available here.

Players: Per curiam decision with Judges M. Smith, Motz, and Nguyen. 

  Big win for AFPD Keith Hilzendeger, District of Arizona.

Facts: Jones pleaded guilty to 18 USC § 922(g)(1). Id. at *1. The court found he had been convicted of at least three violent felonies, and sentenced him under the ACCA. Id. 

  After the Supreme Court’s 2015 Johnson decision and Welch, Jones filed a § 2255 motion attacking these priors. Id. 

  The district court denied the motion.

Issue(s): “Of Jones’s five prior felony convictions, three were for armed robbery under Arizona Revised Statutes § 13-1904. Therefore, whether Jones is subject to the ACCA’s fifteen-year mandatory minimum sentence depends on whether these convictions qualify as violent felonies.” Id. (footnotes omitted).  

Held: “We conclude that [the holding in United States v. Molinar, 2017 WL 5760565 (9th Cir. Nov. 29, 2017)] applies equally to the question of whether Arizona armed robbery is a “violent felony” under the ACCA's force clause. The ACCA’s force clause is identical to the Sentencing Guidelines’ force clause, and we see no reason to analyze these provisions differently. . . . .The fact that Johnson I specifically defined “physical force” with respect to the ACCA's force clause (which definition was extended by Molinar to the Sentencing Guidelines' force clause) further bolsters our conclusion. See Johnson I, 559 U.S. at 135. Therefore, we hold that Arizona armed robbery does not categorically qualify as a violent felony under the ACCA's force clause.” Id. at *2.

Of Note: The holding above was the first half of this admirable win: Arizona armed robbery not a C.O.V. under the ACCA’s force clause. What about the “enumerated felonies” clause, and the wacky government theory that “generic extortion” is the same as “generic robbery?” Another defense win: “Arizona armed robbery also does not qualify as a violent felony under the ACCA’s enumerated felonies clause.” Id. at *3.

  A clean Ninth sweep makes for a great Christmas for Mr. Jones, and a Happy New Year resentencing.  

How to Use: Jones reverses that damnable whipsaw that has long sliced against our clients. 

  After years of suffering adverse guideline decisions extended to the ACCA, and vice versa, the Court now flips that approach and extends a favorable Johnson guideline analysis to our benefit, in the context of the ACCA. Id. at *2 ("The ACCA's force clause is identical to the Sentencing Guidelines' force clause, and we see no reason to analyze these provisions differently.") 

  Jones is a good reminder to mine both veins of law - Guidelines and ACCA - when mounting a Johnson challenge.

                                               

For Further Reading: The big shoe yet to drop in the Johnson saga is Dimaya.

 You’ll recall that great Ninth decision applied Johnson to a civil statute – 18 USC § 16(b) – that defines “crime of violence” in the context of immigration. Judge Reinhardt persuasively explained that the same due process principles that drove the vagueness analysis in Johnson applied with equal force to this important immigration definition, in Dimaya. See blog entry here. 

  The SCOTUS case was carried over onto Court’s October 2017 term, to give Justice Gorsuch a chance to weigh in. As of this writing, we’re waiting anxiously for the decision (note at least one veteran observer reads the tea leaves favorably). See SCOTUS blog here. 

  When will we know the outcome? “Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard.” See Suorene Court website here. 

  Last Spring the Court handed its final decisions at the end of June.  See article here.  Pundits predict a 5-4 decision in Dimaya, which takes a little longer to write, but the Court also had this case the previous term – so it has had much time to start hammering on an earlier draft.

   Punchline? Look for the decision sometime in the next 195 days . . .

Image of Santa Barrister from https://i.pinimg.com/originals/ee/19/bc/ee19bcaff7b313a5bb4b3950fe35d972.jpg

Image of whipsaw from https://openclipart.org/image/2400px/svg_to_png/19727/wasat-Whipsaw.png 

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Strickland Effective Assistance of Counsel - Purse Snatching Does not a C.O.V. Make

  For Judge Owens, getting to a guideline answer is as complicated as the calculations based upon the Staff of Ra.

 (Though for Indy -- and Judge Kozinski -- getting it right seems pretty easy).

United States v. Strickland, 2017 WL 2723926 (9th Cir. June 26, 2017), decision available here.

Players: Decision by Judge Kozinski, joined by Judges Fisher and Watford. Admirable win for R&W Attorney Elizabeth Daily and Chief Deputy FPD Steve Sady, District of Oregon FPD.  

Facts: Strickland pleaded guilty to being a felon in possession of a gun. Id. at *1. That § 922(g)(1) offense made him an Armed Career Criminal, in the view of the district court. Id. 

  Strickland objected to the ACCA-predicate characterization of one of the three priors – an Oregon third degree robbery – arguing that it did not qualify as a “Crime of Violence” for the ACCA. Id.

Issue(s): “He appeals, arguing that he should be resentenced.” Id. “The government argues that we should nevertheless affirm Strickland’s sentence because his third degree robbery conviction is a predicate offense under the force clause. We thus examine whether the state offense satisfies the force clause’s requirements.” Id. “Our question is whether the term ‘physical force’ as used in the Oregon statue is coextensive with the term’s use in the ACCA.” Id. at *2.

Held: “We hold that it is not, so a conviction for third degree robbery under Oregon law is not a predicate offense under the ACCA. State cases show that Oregon doesn’t require physically violent force . . . [Oregon] state cases demonstrate that state courts don’t interpret the Oregon statute as requiring the use or threatened use of violent force. Therefore, Oregon’s third degree robbery statute is not a categorical match to the force clause.” Id. at *2.

Of Note: Oregon purse snatching does not a violent offense make. So says Judge Kozinski in Strickland. Id. at *2. And, last year, so said Judge Watford in United States v. Parnell,818 F.3d 974, 979 (9th Cir. 2016). (Albeit a little reluctantly -- see id. at 982, Watford., J., concurring: “I join the court's opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a “violent felony,” as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn't qualify as a violent felony seems even more absurd. But, as the court's opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.”)

  Interesting that Judge Watford was, at one time, a Ninth Circuit clerk, working for his colleague that is now the author of the Strickland decision.

  For a big Circuit, it is a small world.

How to Use: Johnson warrior Liz Daily has observed that the Oregon third degree robbery statute is similar to that of many other states. 

  The Strickland win certainly undermines the C.O.V. dangers of Oregon Robbery II (ORS 164.405(1)(b), and gives us a welcome boost attacking the robbery convictions of other states as well.

                                               

For Further Reading: Last week Judge Owens complained that guideline sentencing is “more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of Souls.” United States v. Perez-Silvan, 2017 WL 2784971, *7 (9th Cir. June 28, 2017). 

   An apt analogy, the Federal Sentencing Guidelines and the Well of Souls: dank places infested with dangers, threatening permanent entombment with the slightest misstep.

  Judge Owens continues to “urge the Commission to simplify the Guidelines.” Id. Simplification, however, can be dangerous business. At least one prominent Sentencing Commissioner seems keen on simplifying the guidelines to the point of becoming presumptive (read, “mandatory.”) See Remarks of Judge William Pryor, May 17, 2017 at Scalia Law School, George Mason University, available here.

Image of Indy with the Staff of Ra. identifying the Well of Souls from http://earnthis.net/wp-content/uploads/2013/12/raiders-of-the-lost-ark-staff-of-ra-egypt-tomb.jpg

Image of Indy in the Well of Souls from http://i53.tinypic.com/2yuavz5.jpg 

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

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Case o' The Week: Ninth Gives Taylor Sentencing a Werle - ACCA Violent Felonies in United States v. Werle

  Complicated, complex, tricky, technical – wonderful.

  The Ninth’s latest Taylor decision is a riot.

United States v. Werle, 2015 WL 828132 (9th Cir. Mar. 3, 2016), decision available here.

 Players: Decision by N.D. Cal Senior (and former Chief) D.J. Claudia Wilken, joined by Judges Fletcher and Fisher. Big win for ED Cal AFPD Matthew Campbell.

Facts: Werle entered a conditional plea to being a felon in possession, after a suppression hearing. Id. at *1. The PSR claimed Werle fell within the ACCA, triggering a fifteen-year mandatory minimum sentence. Id. Werle had a number of convictions for Washington State “felony riot.” Without those riot priors he would have not qualified for the ACCA mand-min. Id.

Over defense objection the district court held that the riot statute was overinclusive, but divisible. Id. The district court then conducted a modified categorical analysis, examined charging docs and plea agreements from the riot priors, and concluded that they qualified as ACCA predicate “violent felonies.” Id. Werle appealed.

Issue(s): “In this case, we consider whether a conviction for felony riot under a Washington state statute is a violent felony for purposes of the ACCA sentencing enhancement.” Id. at *1.

[Ed. Note: Specifically, the issue was whether the riot prior qualified as a ‘violent felony’ under the “force” clause of the ACCA, 18 U.S.C. § 924(e)(2)(B).]

Held: “We hold that is not, because it is overinclusive indivisible with respect to the term, ‘force.’ Accordingly, we reverse and remand for resentencing.” Id.

Of Note: “Limited, limited, limited” – sweet music to our ears. Judge Wilken carefully explains that the scope of Taylor categorical inquiry is “limited.” Id. at *3. The application of the modified categorical approach is “even more limited.” Id.

Why is the government so constrained, when it tries to establish predicates for sentencing enhancements? The Court explains these limitations are “rooted in the ACCA’s statutory language, the Sixth Amendment’s requirement that facts that increase a defendant’s maximum penalty be proven to a jury beyond a reasonable doubt, and practical concerns.” Id. Judge Wilken then goes on to elaborate on why each of those concerns mandate the “limited” inquiry for the Taylor analysis.

The paragraph at *3, headnote [9] of Werle is one of the cleanest, most-accessible explanations of how -- and why -- Taylor sentencing law works as it does: well worth a close read and heavy citation (or cribbing wholesale into the Johnson Section 2255 motions being frantically drafted in the Ninth).

How to Use: The core holding of Werle is this: if a statute is overinclusive as to any element, and indivisible as to that element, there is no modified categorical analysis. Id. at *4. Here, everyone agreed that the statute was both overinclusive AND divisible as to one element of the riot statute. Id. at *4 (person or property target of force). However, the Ninth holds that the statute was also overinclusive and indivisible as to another element (the degree of force). Id. at *5. Use Werle to force the government through the many, many hoops necessary before modified-categorical-land.

(And don’t overlook the Court’s rejection of the government’s argument regarding “armed with a deadly weapon” – analysis ripe for exportation to other “armed” felonies in our Johnson saga. Id. at *5) (“[T]he fact that an individual is armed does not necessarily mean that he or she has used the weapon in any way.”)          

                                   

For Further Reading: The San Francisco hearings of the CJA Committee concluded last week. All written testimony from these hearings can now be found here. 

Videos of the testimony will be up soon –make a point to watch Panel Six (five fearless CJA Reps, very literally “speaking truth to power.”) 

Image of “Riot” from http://images2.fanpop.com/image/photos/9500000/riot-paramore-9530294-1024-503.jpg

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

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