Monday, April 19, 2010

Case o' The Week: A "Glock"-en-schpeal - Alderman and Crime of Violence after Begay

Does taking someone's car and necklace at gunpoint sound like a violent felony? It does to Judge Kleinfeld (left) in a new categorical analysis decision, United States v. Alderman,__ F.3d __, 2010 WL1490832 (9th Cir. April 15, 2010), decision available here.

Of course, fair to ask why the facts of a prior conviction are floating around a categorical analysis at all . . . .

Players: Decision by Judge Kleinfeld, joined by Judges O'Scannlain and Berzon.

Facts: In a videotaped episode, a man named Montgomery pulled up on Alderman, attacked him, and beat him thoroughly with his fists. Id. at *1. Alderman regrouped, pulled out a Glock, and let nine shots fly at Montgomery and his car – largely missing the assailant, thankfully. Id.

Alderman pleaded guilty to being a felon-in-possession, and at sentencing suffered two enhancements: an upward adjustment of the offense level for having had two previous “crime of violence” convictions, and an upward adjustment for using the Glock in the course of another felony (shooting at Montgomery). Id. The prior conviction at issue was a Washington theft prior.

Despite having pleaded guilty in a plea agreement, Alderman appealed (Seattle, apparently, has an enlightened USAO that allows sentencing appeals from plea agreements – a progressive policy that will hopefully make its way south).

Issue(s): “Alderman argues that his prior theft conviction could not properly be counted as a “crime of violence” under the guidelines, and that shooting at Montgomery could not properly be deemed a felony.” Id. at *1.

Held: “We hold that the first degree theft crime under Washington law of which Alderman was convicted is a ‘crime of violence’ for purposes of the guidelines enhancement, and that the shooting in this case was an assault under Washington law. Id.

Of Note: There were two Ninth Circuit cases essentially on point on the issue of whether the theft prior was a “crime of violence:” Jennings and Wofford. Id. at *2. The real question in the case was whether the Supreme Court’s 2008 decision in Begay narrowed the definition of “violent felony” and thus undermined that authority. Id. at *2.

Sadly, not. Id.

You can see which way the wind is blowing when the Court begins its categorical analysis with a description of Alderman’s prior felony, where he had used a gun to steal a man’s necklace and car at a K.F.C. Id. at *1. Of course, the facts of the prior conviction have precisely nothing to do with the question of whether the Washington theft offense is categorically a crime of violence, but their prominence in the opinion illustrates a common problem: a threshold, sub-silencio (or here, not-so-silencio) exploration of the specific facts of a prior conviction before the objective, “categorical” first step of the Taylor analysis. Add to Alderman a reference to the horrible, recent, and not-final Terrell decision, and the case joins the list of Ninth Circuit decisions that seem to be veering from the Supreme Court’s trend in the analysis of the definition of “crime of violence.”

How to Use: At the Aguila Montes de Oca en banc argument, the judges’ attitudes ranged from bafflement to frustration to conspicuous annoyance when the AUSA arguing the case was not prepared to address the Supreme Court’s recent decision in Johnson – a decision that discusses the crime of violence analysis at length. As Chief Judge Kozinski quipped, “as much as we may want to ignore the Supreme Court, we are, unfortunately, expected to follow its decisions.”

It is deja vu all over again when reading Alderman, which makes not even a passing reference to Johnson. It is a peculiar omission in a new circuit “crime of violence” opinion, as is the failure to identify any statistical support for the Court’s theories on the “risk” associated with the Washington theft crime (data arguably required after Chambers). Keep slugging at these post-Begay challenges: Alderman may warrant a second-look, and Terrell certainly does – the dust hasn’t settled on this area of litigation.

For Further Reading: In a decision that surprised many, the comparatively-young Judge Kleinfeld recently announced that he is taking senior status – permitting the northernmost Obama appellate appointment. See article here.

Image of the Honorable Andrew Kleinfeld from

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


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