Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens rea of “knowingly” in the Ninth Circuit.

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of “knowingly” in the Ninth Circuit.

United States v. Raul Zamorano-Ponce, 2012 WL 5395159 (9th Cir. Nov. 6, 2012), decision available here.

Players: Decision by Judge Graber, joined by Judges Alarcón and Berzon.

Facts: Zamora-Ponce pleaded guilty to illegal reentry. Id. at *1. In 2003, he pleaded guilty to “rape of a child in the third degree,” in violation of Revised Code of Wash. § 9A.44.079. Id. He was removed after his sentence, reentered, and was caught. Id. He pleaded guilty to illegal reentry pursuant to a written plea agreement. Id. Over defense objection, the district court treated the rape prior as a + 16 offense level, categorical “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Issue(s): “The question before us is whether a prior conviction for ‘rape of a child in the third degree,’ in violation of [Washington state law], qualifies as a ‘crime of violence’ for the purpose of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id.

Held: “Reviewing de novo, United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we answer ‘yes’ and, therefore, affirm the sentence.” Id.

Of Note: This is short, but unfortunately potent, opinion. In Zamora-Ponce, Judge Graber distinguishes and thereby limits the Ninth’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). You’ll recall that in the terrific (unanimous!) Estrada-Espinoza opinion, Judge Thomas logically looked towards federal statutes for a definition of the “generic” crime of statutory rape. See blog here. The definition that came out of Estrada-Espinoza required a mens rea of “knowingly” for “generic” statutory rape. 546 F.3d at 1152. 

Not so here, explains Judge Graber. Estrada-Espinoza does not control this appeal, because Estrada-Espinoza discussed stat rape in the context of an agg felony in immigration law. By contrast, at issue in Zamora-Ponce was “crime of violence” in the context of the illegal reentry guideline. 2012 WL 5395159, *3.

Why does that make a difference to the generic federal definition of statutory rape? This is conspicuously not explained, in Zamora-Ponce’s lonely paragraph distinguishing Estrada-Espinoza. Id. 

So what is the Taylor generic definition of statutory rape in the Ninth? Turns out that it depends on whether an immigration agg felony is at issue, or a guideline “crime of violence” is under attack. Two generic definitions for one crime, two different mental states required for one generic offense, two conflicting lines of law, all within one Circuit – an interestingly chaotic state of affairs.

How to Use: The Ninth has also toyed with a four-year age-difference requirement for the definition of statutory rape. See United States v. Gonzalez-Aparcio, 663 F.3d 410, 431 (9th Cir. 2011). Is that age difference part of the generic stat rape definition? Still an unresolved question after Zamora-Ponce. 2012 WL 5395159, *2. The Washington state statute at issue here required the four-year age difference, so that question wasn’t reached by this panel. This means that the age-difference component of the federal definition is still fair game for the defense challenging “crime of violence” guideline enhancements in illegal reentry sentencing.  

                                               

Steven Hubachek

For Further Reading: Sad to report that our friend and colleague Steve Hubachek is leaving the San Diego Federal Defender’s office to go into private practice.

 “Huba” has been in the thick of dozens interesting and novel defense challenge over past couple of decades – from Apprendi and the drug statutes (Buckland), to grand jury instructions (Navarro-Vargas), to the timing of Giglio disclosures (Ruiz), to the formidable Aguila-Montes de Oca litigation now destined for the Supremes. 

Passionate, aggressive, wicked smart and enormously creative, Hubachek has been a great friend of the defense bar and an unflagging champion of our indigent clients. We’ll miss his loud Hawaiian shirts, loud punk music, and loud opinions, and wish him much luck in his new gig. 

For a small taste of the big mischief Steve has wrought, visit the collection of blog postings here.

Image of Janus from http://www.redstate.com/2012/02/27/with-obama-endorsement-machinists%E2%80%99-union-bosses-declare-love-for-janus%E2%80%A6/

Image of Steve Hubachek from http://www.oyez.org/sites/default/files/imagecache/300px_wide_profile_image_v2/advocates/h/s/steven_f_hubachek/steven_f_hubachek.jpg

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

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Case o' The Week: Ninth Uses Federal Statute for Federal Definition - and Government Objects, Estrada-Espinoza

Judge Sidney Thomas (left) authors a characteristically thoughtful opinion in an important en banc decision on the jurisprudential goo of the categorical / modified categorical sentencing analysis: United States v. Estrada-Espinoza v. Mukasey, __ F.3d __, 2008 WL 4615681 (9th Cir. Oct. 20, 2008), decision available here. In Estrada-Espinoza, a unanimous en banc Court holds that four different California statutory rape offenses are not aggravated felonies under 8 USC § 1001(a)(43)(A). This will be a lead decision for immigration practice and for illegal reentry cases. It is also, however, a particularly notable opinion for its approach on how to divine the "generic" federal definition of an offense.

Players: Decision by Judge Sidney R. Thomas – no dissents.

Facts: Estrada-Espinoza, 20 years old, courted Sonia, who was 15 or 16. Id. at *1. With both parents’ blessings, the pair eventually moved-in together. Id. He worked to support the couple and, eventually, the child they raised together. Id.

Three years later, he was convicted of several California statutory rape offenses. Id. The Department of Homeland Services tried to remove him; Estrada-Espinoza lost his challenges before the I.J. and the B.I.A. on the theory that the stat rape convictions were “aggravated felonies” under 8 USC § 1101(a)(43)(A). Id. at *1-*2. A three-judge Ninth panel denied review, and the case went en banc. Id. at *2.

Issue(s): “[W]e consider whether a conviction under any of four California statutory rape provisions – California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h) – constitutes the aggravated felony ‘sexual abuse of a minor’ within the meaning of 8 USC § 1101(a)(43).” Id. at *1.

Held: “We conclude that each statute defines conduct that is categorically broader than the generic definition of ‘sexual abuse of a minor’ and grant the petition for review.” Id.

Of Note: While an important result, the Court’s ultimate holding that these California statutes do not meet the generic definition of “sexual abuse of a minor” is really a foregone conclusion, and takes a small corner of the opinion. Id. at *8. The case was really decided earlier in the opinion, with the far more interesting question of how the Court determines the “generic definition” to be used.

Recall that courts using the Taylor categorical approach typically look to federal common law to glean the “generic definition” of an offense. In Estrada-Espinoza, however, Congress “fortunately” defined the term at issue – “sexual abuse of a minor” – in another federal statute. Id. at *2-*3.

There’s nothing remarkable about turning to a federal statute for a definition, right? Right, except the statute used here is 18 USC § 2243 – the federal “sex abuse of a minor” offense. That’s a distinct federal crime; a crime that has nothing to do with the immigration statute at issue here, 8 USC § 1101(a)(43). This is precisely what the government hollered, when the Court adopted the elements of the § 2243 as the “generic” definition of “sexual abuse of a minor.” Id. at *5. As the government correctly observed, Section 1101(a)(43) turns to federal statutes for some definitions, and doesn’t for others (like "sex abuse of a minor"). Because “sex abuse of a minor” isn’t defined by cross-reference to another statute in § 1101(a)(43), the government claimed, the Court couldn’t troll the federal code fishing for a statutory definition of the “generic” crime. Id. at *6.

Au contraire, explains Judge Thomas – and hence the new rule. Section 1101(a)(43) has two categories of agg felony crimes. Id. The first category of agg felonies refer to a broad range of offenses. This category of agg felonies refers to other federal statutes for clarification.

The second category refers to specific crimes, already defined in criminal law. These have no need for enumerated cross-references. Id. Because “statutory rape” is in the second, “specific crime” category of aggravated felonies, there’s no bar to using other federal statutes for a definition. Id.

How to Use: This new approach bears some thought. Here, the “two category” approach to § 1101(a)(43) was critical, because the fed’s statutory definition of “sexual abuse of a minor” is narrower than the Cal Penal Code provisions. Does this approach impact other crimes labeled as agg felonies? How about “lewd and lascivious” offenses? See Cal. Penal Code § 288(a).

In United States v. Baron-Medina, 187 F.3d 1144, 1145 (9th Cir. 1999), the Ninth held that § 288(a) is an aggravated felony. In Baron-Medina, however, the three-judge panel expressly rejected Chapter 109A (18 U.S.C. §§ 2241-2248) of the federal code as a definition limiting the term, “sexual abuse of a minor.” Id. at 1146. Now, an en banc Ninth Circuit Court has expressly adopted the definition from within Chapter 109A as a generic definition that limits the term, “sex abuse of a minor.” Doesn’t the en banc Estrada-Espinoza opinion overrule the three-judge Baron-Medina decision?

For Further Reading: For a collection of our blogs on the Ninth’s “categorical” law, click on or copy and paste this into your browser:

http://circuit9.blogspot.com/search/label/Categorical%20analysis


Picture of Judge Sidney R. Thomas from http://www.ca9.uscourts.gov/ca9/Documents.nsf/judgewallace?OpenPage

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Taylor-Made Analysis -- Castro and Cal Penal Code Sec. 288(c)(1)

A slow week in the Ninth lets us reach back to discuss the strong decision by Judge Goodwin in United States v. Castro, __ F.3d __, 2010 WL 1135786 (9th Cir. Mar. 26, 2010), decision available here.

(Note: decision by sitting Judge Goodwin, not by (we sincerely hope) future Judge Goodwin (Liu), above (getting some pointers from Justice Breyer)).

Players: Decision by Judge Goodwin, joined by Judges Canby and Fisher.

Facts: Castro was convicted of attempted illegal reentry and was hit with the +16 offense level increase for having a prior “crime of violence” conviction before removal. Id. at *1. The prior was for California Penal Code § 288(c)(1), “which criminalizes lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child.” Id. He was sentenced to 46 months. Id.

Issue(s): “Castro argues that a conviction under section 288(c)(1) does not constitute a ‘crime of violence’ warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A).” Id.

Held: “We hold that a conviction under California Penal Code section 288(c)(1) categorically constitutes neither ‘sexual abuse of a minor’ nor ‘statutory rape’ and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro's sentence and remand for resentencing.”Id. at *1.

Of Note: On March 25 San Diego AFPD Steve Hubachek did an masterful job defending the important Aguila-Montes de Oca decision in a Ninth Circuit en banc argument. At issue was far more than the status of California burglaries in illegal reentry sentencing: the Court is clearly looking at its own Navarro-Lopez rule barring the use of state priors that are missing an element of the “generic” federal definition of a crime. See blog describing case here.

How does Aguila-Montes de Oca relate to Judge Goodwin’s Castro decision? At the en banc argument Judge W. Fletcher’s only questions pressed Hubachek on the impact of the Navarro-Lopez rule on the line of California sex-crime decisions. The en banc argument made it clear that the Ninth is in the midst of a fight over its Taylor approach, the most important sentencing issue since Booker. Hopefully the Estrada-Espinoza line of sex-crime cases (including Castro) will survive whatever the Court decides in Aguila-Montes de Oca.

How to Use: Castro is the latest in a line of admirable Ninth Circuit decisions undertaking an intellectually-honest categorical analysis in an admittedly difficult context: sex crimes involving minors. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Judge Goodwin’s opinion is a good example of the “first step” of the Taylor analysis, carefully comparing the California statute to both the generic offense of “sexual abuse of a minor” and to “statutory rape.” Castro, 2010 WL 11135786, *3. It is a good, short, clean and well-written case to read and cite as a primer on how to undertake this “first step” of the Taylor analysis: the categorical approach. (Though note that the Castro opinion does not involve the Navarro-Lopez “missing element” question at issue in Aguila-Montes de Oca).

For Further Reading: Interestingly, during the Aguila-Montes de Oca en banc argument even a very strong panel of judges were occasionally as confused as us mere mortals as they wrestled with this complicated area of law. One example was some judges' worry that Aguila-Montes de Oca would “immunize” California burglaries from use in any federal sentencing statute.

Sadly (for us) a Taylor analysis for a state crime as to one federal guideline or statute does not necessarily control the result for a different federal guideline or statute. The illegal reentry guideline, for example, is a different beast than the Career Offender guideline because the latter has a “residual clause” – hence a conviction that isn’t a “crime of violence” for illegal reentry may be for Career Offender (or other federal offenses). Beware of that unfortunate reality when advising clients about sentencing exposure – a good decision like Castro may not travel well. For a recap of the Ninth’s struggle with the categorical approach, hit the link here.


Image of Justice Breyer and Professor Liu from http://berkeley.edu/news/berkeleyan/2009/04/16_breyer.shtml

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Nod re: Overbroad - Martinez and Taylor Analysis

Forget the finches: for proof of evolution, study the Ninth’s Taylor analysis.  

  United States v. Martinez, 2015 WL 3406178 (9th Cir. May 28, 2015), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges William Fletcher and (visiting) Tenth Circuit Judge Ebel. Big win for AFD Rebecca Pennell, Federal Defenders of Eastern Washington & Idaho.

Facts: Martinez was convicted of third-degree child molestation in violation of Wash. Rev. Code. § 9A.44.089. Id. He was later ordered removed by an I.J. Id. A decade later, Martinez was indicted for being found in the U.S. after removal, in violation of 8 U.S.C. § 1326. Id. Martinez moved to dismiss the indictment, on the theory that the Washington statute was broader than the generic offense of sexual abuse of a minor “because it criminalized sexual contact involving the touching of a minor over clothing.” Id. The state offense was thus not an agg felony, argued the defense. Id. The district court relied on Jimenez-Jimenez and denied the motion, holding the Washington offense was a categorical match because the act of sexual touching of a 14 or 15 year old, by a defendant 48 months older, was “maltreatment of a child” and was therefore categorically “abuse.” Id.

Issue(s): “[ ] Martinez challenges the district court’s denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326. Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev. Code § 9A.44.089 (2001) was not aggravated felony.” Id. at *1.

Held: “Because recent developments in the law support Martinez’s claim, we reverse the district court’s denial of Martinez’s motion to dismiss the indictment.” Id. “We conclude that Martinez’s conviction for third-degree child molestation does not categorically qualify as an aggravated felony.” Id. at *3.

Of Note: What, actually, did Martinez do with the minor to merit the Washington state conviction? Who knows? The facts of the Prior are (appropriately) not discussed in the opinion, because Judge Rawlinson correctly refuses to go down the road of the modified categorical analysis. Id. at *4 (quoting Descamps). The government can’t muck about with the underlying conviction facts, because the state statute at issue “has a single, indivisible set of elements and is missing elements of the generic definition of sexual abuse of a minor.” Id. at *4 (quotations and citations omitted). Offense facts and the modified categorical analyses are generally steps we like to avoid when doing the Taylor dance. This Martinez discussion of “indivisible” is a good addition to the complex Taylor compendium.

How to Use: What is the generic definition of “sexual abuse of a minor?” Judge Rawlinson works through “a series of opinions” that have articulated “an evolving generic definition of this offense.” Id. at *2 -*3. “Evolving” is a good description – since the 2008 Estrada-Espinoza en banc decision, the Ninth (with some welcome guidance from the Supremes in Descamps) has defined and redefined this particularly tricky offense. Judge Rawlinson provides a clear and brief history of this changing area of law: a useful starting point when delving into a Section 1326 or sentencing challenge to the categorical use of a state prior.

                                               

For Further Reading: Martinez illustrates what we all know: priors are often the issue in a federal case. That’s particularly true when the government tries to throw a prior into the gooey mess of the ACCA’s residual clause. Whether that residual clause survives constitutional muster is very much a live issue right now, as the Supreme’s take another bite at Johnson. For a good summary of Johnson and its current status, see Paul Rashkind’s excellent Supreme Court update here. 

   Object and object encore if the residual clause is at issue in your case – this term may bring welcome news.

Image of Finch evolution from http://www.zo.utexas.edu/courses/bio301/chapters/Chapter7/fig7.4.jpg

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

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Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG § 2L1.2, Aguila-Montes de Oca

A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG § 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan. 20, 2009), decision available here.

Players: Big win for San Diego AFPD Vince Brunkow, with assist by Steve Hubachek. Decision by Judge Thompson, (brief) dissent by Judge Gould.

Facts: After trial Aguila-Montes was sentenced 120 months for illegal reentry. Id. at *1. That whopping sentence was triggered by a +16 offense level increase for a California first degree burglary conviction (Penal Code § 459), characterized by the district court as a “crime of violence.” Id.

In the first panel decision, Judge Thompson wrote that this § 459 conviction qualified for the +16 OL bump under the “modified categorical approach.” 523 F.3d 1071, 1078 (2008) (withdrawn). Aguila-Montes petitioned for rehearing: the January 20th decision that is the subject of this memo is the revised decision.

Issue(s): “Aguila-Montes argues that because this 1988 state conviction could have been based upon criminal liability for conduct not included within the definition of burglary of a dwelling in section 2L1.2 of the Guidelines, the district court erred in applying the sixteen-level sentence enhancement.” Id. at *1.

Held: “Because California Penal Code section 459 does not require that an entry in the burglary context be ‘unlawful or unprivileged,’ the California statute lacks an element included in the generic definition of burglary of a dwelling incorporated into the Guidelines. Using a categorical approach, the two offenses do not ‘match.’ The modified categorical approach may not be applied to establish the missing element, and as a result, Aguila-Montes’s state conviction of first degree residential burglary is not a prior conviction of a crime of violence under section 2L1.2(b)(1)(A) of the Guidelines.” Id. at *4.

Of Note: The San Diego Defender deserves recognition for this victory, and for its aggressive litigation strategy on this issue. Attorneys in that office have been hanging tough on cases that involve a California burglary as a +16 OL specific offense adjustment – and are now being rewarded with better offers or great prospects on appeal. It is interesting to speculate how much custody time this decision will save illegal reentry defendants in border districts: many, many decades, safe to say.

How to Use: The important new rule of Aguila-Montes de Oca is that California burg convictions can never be +16 OL “violent” felonies in illegal reentry cases. The decision is also important, however, for its solid endorsement of the broader Navarro-Lopez rule: in the Ninth Circuit, if a state conviction doesn’t include the elements of the “generic” crime in the Taylor categorical analysis a court can’t move on to the modified categorical analysis. See blog here on Navarro-Lopez.

That broader Navarro-Lopez principle is a welcome rule far beyond the illegal reentry context; it is a limitation that squarely applies in Career Offender, ACCA, and 2K2.1 (felon in possession) cases as well.

For Further Reading: This win was a long time coming, and was presaged by Judge Milan Smith in his dissent in Snellenberger. See blog here.

Is the victory safe? Appellate guru Steve Hubachek thinks so: he notes that the Ninth unanimously relied on Navarro-Lopez’s reading of Taylor in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. Oct. 20, 2008) (en banc). The application of Taylor and Navarro-Lopez in the immigration context may remain controversial (see the cert. grant in Nijhawan v. Mukasey, blog summary here) but the dust has now settled on the Navarro-Lopez rule for criminal cases (at least in the Ninth).


Image of California Penal Code from http://upload.wikimedia.org/wikipedia/commons/b/b5/Californiapenalcode.jpg

Steven Kalar, Senior Litigator N.D. cal. FPD. Website at www.ndcalfpd.org


NB: On February 3, 2010, the Ninth Circuit granted the government's petition for rehearing en banc on Aguila-Montes de Oca:

02/03/2010

FILED ORDER FOR PUBLICATION (ALEX KOZINSKI) UPON THE VOTE OF A MAJORITY OF NONRECUSED ACTIVE JUDGES, IT IS ORDERED THAT THIS CASE BE REHEARD EN BANC PURSUANT TO CIRCUIT RULE 35-3. THE THREE-JUDGE PANEL OPINION SHALL NOT BE CITED AS PRECEDENT BY OR TO ANY COURT OF THE NINTH CIRCUIT.[7218682] (RP)

Be sure to check the status of this opinion before citing it.

~SGK

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