Sunday, November 02, 2008

Case o' The Week: One Minute (Order) Means Years, Snellenberger

Only in California can one burgle an outhouse (though why one would remains a mystery). United States v. Snellenberger, __ F.3d __, 2008 WL 4717190, *1 (9th Cir. Oct. 28, 2008) (en banc), decision available here. California Penal Code § 459 burglary is broader than the federal "generic" definition (limited to residences), so it is a frequent question as to whether a prior burglary conviction qualifies as a "crime of violence" for federal sentencing enhancements (like Career Offender).

In Snellenberger, the en banc Court held
that a clerk's minute order can be used during the modified categorical analysis to determine whether a prior California burglary conviction qualifies as a crime of violence.

The bigger question, however, goes unanswered in Snellenberger: why does the extraordinarily broad California burglary crime ever qualify as a "generic" federal "crime of violence?"

Players: Per curiam decision. Dissent by Judge M. Smith, joined by C.J. Kozinski and Judges Reinhardt and Thomas.

Concurrence by Judge Graber, joined by Judges Rymer, Kleinfeld, Hawkins, Gould, and Tallman.

(Interestingly, only one judge joined neither the concurrence or dissent: Judge W. Fletcher. His vote is one to watch if -- or rather, when -- Aguila Montes de Oca goes en banc).

Facts: Snellenberger robbed a bank and got hit with Career Offender. Id. at *1. One prior “crime of violence” was a California burglary. Id. at *1. For that prior conviction, he had been charged with: Count One, burglary of a residence, and Count Two, burglary of a vehicle. Id. at *2. The former can be a “generic” crime of violence (Ed. note: actually not, but more on that below), the latter can not. Id. The only evidence that Snellenberger had pleaded guilty to the first count – and not the second – was a clerk’s minute order. Id. at *1.

The late, great Judge Ferguson held for a three-judge panel that the federal sentencing court could not rely on a minute order when applying the modified categorical approach. The case went en banc.

Issue(s): “We must decide whether a court may consider a clerk’s minute order when applying the modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990).” Id. at *1.

Held: “We . . . hold that district courts may rely on clerk’s minute orders that conform to the essential procedures described above in applying the modified categorical approach.” Id. at *3.

Of Note: Doubling a sentence hinges on a clerk’s minute order? A minute order? J&C Orders, sure, and transcripts, yes: the former is reviewed by the sentencing judge and defense counsel, and with the latter, court reporters are trained to be accurate and know their transcripts are critical. But minute orders? Turns out that checking the accuracy of a clerk’s minute order “presumably . . . is part of every criminal defense lawyer’s professional obligation.” Id. at *2. Want a cite for that remarkable proposition? So do we – you won’t find one in the opinion.

How to Use: Snellenberger’s Big (Unanswered) Question is, “why is a California burglary a federal, generic crime of violence in the first place?” As Judge Milan Smith persuasively explains in dissent, it ain’t: California has been creative with its view of “burglary,” and the California offense is now (considerably) broader than the generic federal definition. See id. at *4 (Smith, J., dissenting). The Ninth’s new rule in the en banc Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) is “plain and clear:” “the modified categorical approach never applies when the crime of conviction is missing an element of the generic crime altogether.” Id. at *4.

Why, then, didn’t Snellenberger win – clerk’s minute order or no? Because, the concurring judges opine, this issue wasn’t raised in the opening brief, and doesn’t rise to plain error. Id. at *3 (Graber, J., concurring).

Does this seem a bit of an artful dodge by the concurrence? The dissenters think so – and particularly when one considers that the Ninth invited supplemental briefing on the Navarro-Lopez issue during this appeal!

Hope remains, however. The indefatigable crew at the San Diego Defender have a petition for rehearing pending in United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. 2008). In Aguila-Montes de Oca, the burglary issue is squarely before the Court – and a 28(j) letter is now in route, trumpeting Judge Smith’s thoughtful dissent.

In sum, if you have an illegal reentry, § 922(g)(1), Career Offender, or Armed Career Criminal sentence that hinges on a California Penal Code § 459 conviction being a “crime of violence,” object! There’s a good chance that Cal. burglary priors, like Cal. stat-rape priors, will soon fall “categorically” outside of generic federal definitions. See United States v. Estrada-Espinoza, __ F.3d __, 2008 WL 4615681 (9th Cir. Oct. 20, 2008) (en banc).

For Further Reading: Do these memos seem bogged down in the jurisprudential goo of the categorical / modified categorical analysis? Think how the Ninth must feel. The Court’s attempts to distill this jurisprudential swamp is progressing – but is far from over. For a thoughtful article on the complicated analysis, see Jonathan D. Montag, The Taylor Analysis and Taylor Modified Categorical Approach - When does the crime fit the removal ground? available here.

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


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