Saturday, June 18, 2011

Case o' The Week: Ninth Holds Park Burglary a C.O.V. -- Park, Cal Burgs, and Crime of Violence

Still no word, yet, on whether a California first degree burglary conviction is a "crime of violence" for the illegal reentry guideline -- still waiting for both Aguila Montes de Oca and Godot.

This week did, however, bring unfortunate clarity on whether a Cal burg is a "crime of violence" for the Career Offender definition.
United States v. Park,__ F.3d __, 2011 WL 2418906 (9th Cir. June 17, 2011), decision available here.

Players: Decision by Judge Wallace (left) , joined by Judge Graber and visiting D.J. Richard Mills.

Facts: Park pleaded guilty to being a felon in possession. Id. at *1. At sentencing, the district court found that his prior California burglary felony was not a “crime of violence” that increased his guideline range under § 2K2.1. Id.

To define “crime of violence,” the gun guideline (§ 2K2.1) turns to the definition used for Career Offender in USSG § 4B1.2(a). Id. That definition characterizes conduct as a “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that – [is an enumerated offense],. . . or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.

The government appealed.

Issue(s): “The only question raised in this appeal is whether California first-degree burglary categorically falls within section 4B1.2(a)(2)’s ‘residual clause,’ in that it ‘involves conduct that presents a serious potential risk of physical injury to another.’” Id. (quoting USSG § 4B1.2(a).

Held: “A violation of California’s first-degree burglary statute is a ‘crime of violence’ under U.S.S.G. § 4B1.2(a)’s residual clause.” Id. at *5.

Of Note: Judge Wallace let no moss grow on the Supreme Court’s latest Taylor opinion, Sykes v. United States, 2011 WL 2224437 (S. Ct. June 9, 2011). Sykes’s is cited throughout Park, which came out just eight days later.

Unfortunately, Sykes is a lousy decision which holds that a felony “flight by offender” conviction is categorically a “crime of violence” offense for the Armed Career Criminal Act (ACCA). Justice Scalia’s critique of Sykes applies, perhaps, with equal force here in Park:

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.”

Sykes, 2011 WL 2224437, *17 (Scalia, J., dissenting).

If you’re confused and secretly irritated by the many conflicting standards from the Taylor categorical analysis of the “crime of violence” definition, take heart: you’re not the only one.

How to Use: June has been a bad month for our poor lads with – colorful – pasts. Park makes California burglary a “crime of violence” for the federal gun guideline, Section 2K2.1 – cranking up the guideline’s base offense levels. Hate to concede it, but Park also almost certainly means that a Cal burg is a "crime of violence" for Career Offender – the same defining guideline is used for both Section 2K2.1 and the Career Offender guideline (USSG § 4B1.2(a)). As noted above, Sykes makes felony “flight by offender” a crime of violence for the ACCA. And, as Judge Wallace explains in Park, ACCA “crime of violence” precedent weighs heavily in the Career Offender analysis. In short, defense counsel should re-work their red flag cheat sheets and maybe revisit some sentencing advisement letters.

For Further Reading: Daniel Hyun Park’s guideline range has now probably doubled thanks to this case: luckily, on remand his district judge can and should Do The Right Thing and § 3553(a) right back down to a three-year sentence.

Unfortunately, ACCA defendants don’t get that shot at a just sentence – picayune parsing of their crime of violence definitions can trigger fifteen-year mandatory minimum sentences. As the good Prof Berman observes, “detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.”

For Berman’s (and a guest contributor’s) full take on the systemic injustice of Sykes and the Taylor categorical approach generally, see his blog on the opinion here.

Image of the Honorable Judge Clifford Wallace from

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


Labels: , , , , ,


Post a Comment

<< Home