Sunday, January 05, 2014

Case o' The Week: Taylor Failure -- Caceras-Olla and Taylor Analysis, Sec. 2L1.2

Hon. Marsha S. Berzon

  This picture, from a Harvard Law Moot Court competition, labels Ninth Circuit Judge Marsha Berzon as “Justice.”
   Has a nice ring. See old article on J. Stevens' replacement here
United States v. Caceras-Olla, 2013 WL 6847127 (9th Cir. Dec. 23, 2013), decision available here.

Players: Decision by Judge Berzon, joined by Judge Paez. Concurring opinion by Judge Fernandez. Victory for AFPDs M. Edith Cunningham and Christopher Kilburn, D. Az. FPD.

Facts: Caceras-Olla pleaded guilty to unlawful reentry. Id. at *1. He had a prior Florida felony conviction for “lewd or lascivious battery.” Id. Over defense objection, the district court held that this qualified under USSG § 2L1.2(b)(1)(A)(ii) as a “crime of violence,” triggering a sixteen-level offense level adjustment. Id.

Issue(s): “This case presents the question whether a prior felony conviction under Florida Statutes section 800.04(4)(a) for lewd or lascivious battery qualifies as a ‘crime of violence’ for purposes of the Guidelines.” Id. at *1.

Held: “We hold that it does not, because the crime does not constitute a ‘forcible sex offense’ or ‘statutory rape’ within the meaning of the applicable Guideline.” Id.

Of Note: Judge Berzon provides a thoughtful statutory analysis – discussing “the familiar ejusdem generis canon” – of the meaning and necessity of “consent” for a forcible sex offense under Guideline 2L1.2. Id. at *3. (“Esjusdem generis” is “of the same kind, class, or nature.”). The Court isn’t buying the government’s attempt to label all stat rape crimes as “forcible sex offenses” – expressly endorsing Judge Tashima’s righteous dissenting analysis in United States v. Gonzalez-Aparicio, 663 F.3d 419, 437 n.5 (9th Cir. 2011) (Tashima, J., dissenting). Id.; see also blog entry on J. Tashima dissent here
   Judge Berzon also reads the statutory rape language of the guideline closely, rejecting the government’s attempt to salvage the sentence because the Florida statute does not include the necessary age difference. Id. at *5. A good decision with helpful analysis for use outside of the narrow context of this relatively rare (in the Ninth) Florida prior.

How to Use: Tucked away in Caceras-Olla is a great little jewel for appellate attorneys. In the opening brief, the defense argued that this Florida offense wasn’t a “sexual abuse of a minor” – another enumerated Guideline offense that would trigger the +16 OL increase. Was it? The panel didn’t need to get there: “The government did not respond to this argument, and so has waived reliance on that ‘crime of violence’ variant.” Id. at *1 n.1. Grab and cite this great footnote for the not-infrequent occasions when the government doesn’t bother to address arguments in its appellate brief.
For Further Reading: “Crime of Violence.” That slippery term can have huge sentencing ramifications, and morphing interpretations of “crime of violence” can produce radically disparate (and unjust) sentences. In Caceras-Olla, the Ninth addresses the meaning of “crime of violence” in the context of the illegal reentry guideline. On January 15, 2014, the Supreme Court will hear argument on the meaning of “misdemeanor crime of domestic violence” in the context of a federal gun statute: 18 USC § 922(g)(9). See Cornell entry here. (discussing United States v. Castleman). 
   The narrow issue is federal criminal liability for possessing a gun after a misdemeanor domestic violence conviction. See SCOTUS entry here (“Whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).”) 
   The broader issue is how the Court will define the violent force requirement – using definitions from the Armed Career Criminal Act, or using common law definitions. It will be another wrinkle in the ongoing tussle over the meaning of “violence” in state predicates – an argument worth following.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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