Saturday, August 30, 2008

Case o' The Week: 9th + § 211 = +16, Becerril-Lopez and Categorical analysis

An order amending a June decision (and, unfortunately, denying rehearing en banc) gives us an opportunity to reach back a bit in this slow August week in the Ninth Circuit. See United States v. Becerril-Lopez, __ F.3d __, 2008 WL 3982507, ord. (9th Cir. Aug. 29, 2008), decision available here.

Players: Hard-fought appeal by San Diego Assistant Federal Defender Stephanie J. Lacambra. Opinion by Judge Hall (left), joined by Judges Pregerson and Hawkins.

Facts: Becerril-Lopez was convicted of illegal reentry after trial and sentenced to 100 months. Id. at *1. His sentence was enhanced 16 offense levels because he had a robbery conviction, under California Penal Code § 211. Id. He appealed.

Issue(s): “Among other claims, Becerril-Lopez argues that his prior conviction under . . .§ 211 does not qualify as a ‘crime of violence’ under the sentence enhancement provision for illegal re-entry crimes.” Id. at *1.

Held: “[W]e approach the issue as a question of first impression.” Id. at *5. “We hold that it does, and we affirm.” Id. at *1. “[W]e hold that a conviction under Cal. Penal Code § 211 could only result from conduct that constitutes a ‘crime of violence’ for purposes of U.S.S.G. § 2L1.2.” Id. at *8.

Of Note: The sixteen-level specific offense adjustment at issue in this case applies if a deported alien had been convicted of a “crime of violence.” Id. at *5. The question, thus, is whether California Section 211 robbery is a “crime of violence” (a question that had been unresolved in the Ninth).

Note that Section 211 had been deemed a “crime of violence” under the Career Offender Guideline, USSG § 4B1.2. Id. at *5 (citing United States v. McDougherty, 920 F.2d 569 (9th Cir.1990)). That holding does not, however, control this analysis – which hinges on the definition of “crime of violence” in the illegal reentry guidelines, § 2L1.2.

Becerril-Lopez well-illustrates a particularly tricky area of federal practice: different definitions of the same term can have a profound impact on sentencing exposure. For example, because of inconsistent federal definitions the term “crime of violence” can mean different things depending on the statute at issue – 18 USC § 16, the Career Offender guidelines, the illegal reentry guideline – even the Bail Reform Act! A predicate conviction can often qualify as a “crime of violence” under one of these statutes, but not qualify under another.

Don’t be cowed by a P.O. or AUSA that touts Career Offender authority in support of a specific offense adjustment in the illegal reentry context. The analyses are as like as cheese and chalk – a fact often lost on our Worthy Opposition.

How to Use: Though the San Diego Defender didn’t win (in this case), the decision reveals how that office is methodically attacking California priors that trigger the whopping specific offense adjustments. Here, Assistant Defender Lacambra attacked Section 211 as over broad in six different ways. Id. at *6. The attacks didn’t win for this particular statute, but might for another . . . like burglary.

As we’ve noted before, San Diego Chief Appellate Attorney Steve Hubachek is taking on the California burglary statute as overbroad, because unlike the “generic” federal definition California Penal Code Sections 459 and 460 do not contain an “unprivileged entry” element. Cf. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 852-53 (9th Cir. 2005) (discussing Cal. Penal Code § 459). That issue (in a Defender amicus) was argued before an en banc court of the Ninth Circuit on June 25th of this year. See United States v. Snellenberger, C.A. 06-50169.

The beauty of the admirably aggressive San Diego approach is that the Penal Code is often amended – as are the guideline definitions of predicate convictions. Each new iteration presents a new opportunity to take this issue back up again. Hundred-month sentences for illegal reentry defendants (as happened here) should come with a litigation price.

For Further Reading: How does Justice feel about all this “categorical approach” litigation? Un-enthused (un-surprisingly). See DOJ Comments to United States Sentencing Commission, available here.

Photograph of Judge Hall from

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


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