Sunday, May 31, 2015

Case o' The Week: Ninth Nod re: Overbroad - Martinez and Taylor Analysis

Forget the finches: for proof of evolution, study the Ninth’s Taylor analysis.  
  United States v. Martinez, 2015 WL 3406178 (9th Cir. May 28, 2015), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges William Fletcher and (visiting) Tenth Circuit Judge Ebel. Big win for AFD Rebecca Pennell, Federal Defenders of Eastern Washington & Idaho.

Facts: Martinez was convicted of third-degree child molestation in violation of Wash. Rev. Code. § 9A.44.089. Id. He was later ordered removed by an I.J. Id. A decade later, Martinez was indicted for being found in the U.S. after removal, in violation of 8 U.S.C. § 1326. Id. Martinez moved to dismiss the indictment, on the theory that the Washington statute was broader than the generic offense of sexual abuse of a minor “because it criminalized sexual contact involving the touching of a minor over clothing.” Id. The state offense was thus not an agg felony, argued the defense. Id. The district court relied on Jimenez-Jimenez and denied the motion, holding the Washington offense was a categorical match because the act of sexual touching of a 14 or 15 year old, by a defendant 48 months older, was “maltreatment of a child” and was therefore categorically “abuse.” Id.

Issue(s): “[ ] Martinez challenges the district court’s denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326. Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev. Code § 9A.44.089 (2001) was not aggravated felony.” Id. at *1.

Held: “Because recent developments in the law support Martinez’s claim, we reverse the district court’s denial of Martinez’s motion to dismiss the indictment.” Id. “We conclude that Martinez’s conviction for third-degree child molestation does not categorically qualify as an aggravated felony.” Id. at *3.

Of Note: What, actually, did Martinez do with the minor to merit the Washington state conviction? Who knows? The facts of the Prior are (appropriately) not discussed in the opinion, because Judge Rawlinson correctly refuses to go down the road of the modified categorical analysis. Id. at *4 (quoting Descamps). The government can’t muck about with the underlying conviction facts, because the state statute at issue “has a single, indivisible set of elements and is missing elements of the generic definition of sexual abuse of a minor.” Id. at *4 (quotations and citations omitted). Offense facts and the modified categorical analyses are generally steps we like to avoid when doing the Taylor dance. This Martinez discussion of “indivisible” is a good addition to the complex Taylor compendium.

How to Use: What is the generic definition of “sexual abuse of a minor?” Judge Rawlinson works through “a series of opinions” that have articulated “an evolving generic definition of this offense.” Id. at *2 -*3. “Evolving” is a good description – since the 2008 Estrada-Espinoza en banc decision, the Ninth (with some welcome guidance from the Supremes in Descamps) has defined and redefined this particularly tricky offense. Judge Rawlinson provides a clear and brief history of this changing area of law: a useful starting point when delving into a Section 1326 or sentencing challenge to the categorical use of a state prior.
For Further Reading: Martinez illustrates what we all know: priors are often the issue in a federal case. That’s particularly true when the government tries to throw a prior into the gooey mess of the ACCA’s residual clause. Whether that residual clause survives constitutional muster is very much a live issue right now, as the Supreme’s take another bite at Johnson. For a good summary of Johnson and its current status, see Paul Rashkind’s excellent Supreme Court update here
   Object and object encore if the residual clause is at issue in your case – this term may bring welcome news.

Image of Finch evolution from

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


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Anonymous Jordan said...

A very interesting case here indeed. I'd say both lawyers did an excellent job on this and it makes a very intriguing thing to study. Thanks for sharing this!

Monday, June 01, 2015 7:00:00 AM  

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