Sunday, February 10, 2008

Case o' The Week: Ninth Categorically Opposed (Sort of) to Expansion of Categorical Analysis, Jennings

An important decision on the categorical/modified categorical analysis reminds us again why we hated to see the Honorable Wallace Tashima take senior status. United States v. Jennings, __ F.3d __, 2008 WL 282366 (9th Cir. Feb. 4, 2008), decision available here.

Players: Decision by Tashima, joined by Berzon; dissent by O’Scannlain.

Facts: Jennings pleaded guilty to being a felon in possession of a gun and was hammered with the fifteen-year mandatory minimum required by 18 USC § 924(e), the Armed Career Criminal Act (“ACCA.”) Id. at *1. Among many other issues, Jennings argued that a prior Washington state conviction for “eluding police” was not a violent felony that could serve as an ACCA predicate and challenged his sentence on appeal.

Issue(s): Can a court go beyond the “categorical” approach to the “modified categorical” analysis to determine whether a prior conviction is a predicate offense, when the statute of conviction is missing an element of the generic crime?

Held: “The modified categorical approach . . . only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that ‘a jury was actually required to find all the elements of’ the generic crime.” Id. at *9. “We thus conclude that Jennings was not convicted of all of the elements of a generic violent felony.” Id. at *10 (remanded).

Of Note: Jennings is the cutting edge of the Ninth Circuit’s categorical/modified categorical jurisprudential goo (if goo has edges). One bad aspect of the case is that the Ninth abandons an old rule that the modified categorical approach can not be used in the “otherwise” or “catchall” clause of § 924(e)(2)(B)(ii). Id. at *7. In plain English, this means that a federal court can now use the modified categorical approach to determine if the conduct in the predicate offense “otherwise involves conduct that presents a serious potential risk of physical injury to another” – a blow for the defense.

The "good" rule in Jennings, however, sparked a strident dissent by Judge O’Scannlain (right). He complains that the particular Washington crime at issue should be a predicate offense. More worrisome is his argument that intervening Supreme Court authority permits the use of the “modified categorical” approach beyond the narrowing limitations found in Tashima’s decision. Id. at *10 (O’Scannlain, C.J., dissenting). Whistle in the graveyard as en banc and cert. ghosts (hopefully) pass by.

How to Use: Identifying (and contesting) predicate offenses is an insanely complex task, and a task that carries huge stakes for our clients. Here’s a quick defense flow chart:

* Read the federal statute defining qualifying predicates, carefully. For example, a “crime of violence” in 18 USC § 16 is very different than a “crime of violence” in 18 § 924(e)(2)(B). Often a valid predicate for one federal statute is not for another, even if the same general “phrase” is used (like “crime of violence.”)

* Apply the categorical approach. Is the statute underlying the prior conviction missing an element of the “generic crime” altogether? If so, stop - you win! Id. at *9. Under Jennings, if the underlying statute is missing an element of the “generic crime” altogether the court cannot move onto the “modified categorical” approach.

* If the underlying offense has all of the elements of the generic crime, but they are “broader than the generic crime,” then move onto the modified categorical approach. Seek shelter in the Ninth’s many strict limitations on the documents that can be used in to modified categorical analysis. See, e.g., United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (discussing limitations on evidence and documents that can be used during the modified categorical analysis).

For Further Reading: Is the Ninth is the only Circuit scratching its collective head in this area? Nope – the Fifth also recently struggled with the categorical/modified categorical two-step. See Fifth Circuit Blog on Gonzalez-Terrazas, here.

Steven Kalar, Senior Litigator. Website at


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