Sunday, February 02, 2014

Case o' The Week: Deja vu all over again, again - Aguilar-Turcios and Taylor approach after Decamps

  Living well is the best revenge.
  Being vindicated by the Supreme Court? A close second. United States v. Aguilar-Turcios, 2014 WL 241868 (9th Cir. Jan. 23, 2014), decision available here.

Players: Decision by Judge Paez, joined by Judges Fletcher and Bybee. Amicus support from (former) San Diego Assistant Federal Defender Steve Hubachek.

Facts: Aguilar-Turcios, a Honduran national and LPR, was court-martialed after downloading child porn while a U.S. Marine. Id. at *1. More specifically, he pleaded guilty to violating a Department of Defense directive that prohibited using a government computer for an “unauthorized purpose.” Id. “Unauthorized purposes” include “uses involving pornography.” Id. He also pleaded guilty to a charge of wrongfully possessing images of “minors engaging in sexually explicit conduct.” Id. Later, the government tried to remove Aguilar-Turcios by alleging that these offenses were “aggravated felonies” because they were conduct involving child pornography. Id. The IJ found that one offense was an agg felony and ordered removal; Aguilar-Turcios appealed. Id. at *2. There followed a series of decisions, tangled up with the developments of the “missing elements” rule and Aguila-Montes de Oca. Id. at *2. The Supreme Court then rejected Aguila, adopted Decamps,  and the case returned to the Ninth. Id. at *3.

Issue(s): Did the Article 92 UCMJ Article 92 conviction qualify as an aggravated felony, after Decamps?

Held: “Aguilar-Turcios’s Article 92 conviction, predicated on a violation of section 2-301(a), is not categorically an aggravated felony.” Id. at *4. Moreover, the statute at issue is “missing this element altogether” [an essential element of visual depiction of a minor engaged in sexual explicit conduct]. Id. at *5. “The modified approach thus has no role to play in this case.” Id. “We have jurisdiction over this case, and we grant the petition for review and remand to the BIA with instructions for the agency to vacate the removal order against the petitioner.” Id.

Of Note: Fantastic! Aguilar-Turcios’ removal order is vacated! Life for this former Marine in the United States is finally secure, after nearly a decade of litigation. Except . . . “[w]hile Aguilar-Turcios’s appeal was pending before this court, and an order was in place staying his removal, the government mistakingly removed Aguilar-Turcios to Honduras.” Id. at *2 & n.6.

How to Use: Decamps is now settled law, but it always helps to have a clear explanation in a home Circuit decision on how that opinion really works. And Judge Paez takes great pains to explain it clearly – noting his original Aguilar-Turcios decision, Judge Bybee’s dissent, then Judge Bybee’s Aguila Montes de Oca en banc decision – and Decamps, rejecting Judge Bybee’s AMdO approach and endorsing Judge Paez’s (and the Ninth’s) limitations on the use of the modified categorical approach. It isn’t quite crowing, but Judge Paez is particularly deliberate while explaining the long battle over this Taylor approach – and which side was the victor. The result is a clean explanation with nice sharp edges on when the modified categorical approach is appropriate – and when it is not.
For Further Reading: After Moneyball, Nate Silver, and the last Presidential elections, stats are where it’s at. Or  not. In a very thoughtful article, Felix Salmon carefully explains, “Why Quants Don’t Know Everything.” See Turns out that professional baseball and the stock market learned the hard way that models based solely on statistics aren’t quite the paradises promised by bean-counters. This Wired magazine article is a must read for any employee of any Federal Defender organization, as the Administrative Office of the US Courts starts our short collective voyage towards a Workload Staffing formula by Fiscal Year 2016.

Image of the Honorable Judge Richard Paez from  Image of Statistics t-shirt from

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


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Blogger Michael Drake said...

Psst — the case name is Aguilar-Turcios v. Holder.

Monday, February 03, 2014 9:33:00 AM  

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