Sunday, November 29, 2015

Case o' The Week: Something Good Comes of Jersey - Garcia-Jimenez and Federal Generic Aggravated Assault

“In Jersey anything’s legal as long as you don’t get caught.”
  Tweeter and the Monkey Man, Traveling Wilburys (Bob Dylan).

United States v. Garcia-Jimenez, 2015 WL 7292604 (9th Cir. Nov. 19, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges W. Fletcher and Bea. Admirable win for former CD Cal AFPD Davina Chen.

Facts: Garcia-Jimenez got drunk and stabbed a fellow card player. Id. at *1. He pled guilty to New Jersey agg assault. Id. The statute allowed conviction under three prongs: attempting to cause bodily injury, purposely or knowingly causing injury, or recklessly causing such injury. Id. State proceedings did not make clear which of the three prongs Garcia-Jimenez was convicted of violating. Id. He served his time, was deported, reentered, caught, and convicted of illegal reentry. Id. The PSR recommended a +16 OL increase, tagging the N.J. agg assault as a “crime of violence.” Id. The district court agreed, imposed a 46-month term, and added that if the Guideline calc was wrong, it would still find the sentence reasonable. Id. at *2-*3.

Issue(s): “Garcia–Jimenez argues that his prior conviction is not a crime of violence because: (1) contrary to the New Jersey statute, the generic federal offense of aggravated assault requires a mens rea greater than recklessness under circumstances manifesting extreme indifference to the value of human life (‘extreme indifference recklessness’); and (2) New Jersey's definition of ‘attempt,’ an element alternatively incorporated into the statute of conviction, is broader than the federal generic definition of ‘attempt.’” Id. at *1.

Held: “We hold that, for both reasons, the provision of the New Jersey statute under which Garcia–Jimenez was convicted does not qualify as federal generic aggravated assault and therefore is not a ‘crime of violence.’ Because the district court's Guidelines error was not harmless, we vacate the sentence and remand to the district court for resentencing.” Id.

Of Note: The big holding is the Court’s conclusion that a mens rea of extreme indifference recklessness is not sufficient to meet the federal generic definition of aggravated assault. Id. at *4. Judge Berzon surveys state authority, and finds that a substantial majority of jurisdictions require more than this mens rea. Id. at *5. She distinguishes the Ninth’s previous decision in Esparza-Herrera, which did not undertake the required mens rea analysis. Id. at *4; see also fn. 4 (distinguishing Gomez-Hernandez). 

Note that seventeen states do allow agg assault convictions based on this lower mens rea (see fn. 7); keep an eye out for those priors and don’t let them become +16 offense level increases.

Equally interesting is the Court’s protection of generic federal “attempt.” Id. at *6. Because New Jersey law allows an attempt conviction without satisfying the “probable desistance” test, it is broader than the generic definition – again, the prior does not qualify as a federal “aggravated assault.” Id. at *6-*7. Two very useful additions to our “generic definition” arsenal.

How to Use: Yet again the Ninth rejects the sentencing “belt and suspenders” gambit. Here, the court warned it would impose the same 46 six months if it was wrong (despite the fact that the correct guidelines are 10–16 months). Id. at *7. The Ninth ain’t buying it: “the district court’s assurance that it would have imposed a sentence three times the proper Guidelines range if its Guidelines calculation turned out to be wrong cannot, without more, cure the prejudice resulting from its incorrect Guidelines calculation.” Id. at *8. Use Garcia-Jimenez when a court tries to whitewash an incorrect guideline calc with threats of an identical § 3553(a) term.   
For Further Reading: After Johnson, the Sentencing Commission has also been wrestling with the “crime of violence” question. A proposed amendment has been posted for comment - see the pdf here

The comment period ended on Nov. 25: anticipate more news on the amendment soon. 

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

Labels: , , , , , , , ,

Tuesday, November 24, 2015

United States v. Bare, No. 14-10475 (11-24-15)(Tallman with Rosenthal, D.J.; Kozinski dissenting). 
As an editorial note, this is an AZ FPD case. The 9th affirms a sentence and conditions of SR in a felon in possession case.   Some interesting aspects are presented and a dissent by Kozinski regarding overbroad SR conditions.  This case arises from the non-Indian defendant shooting a gun on the Navajo reservation during an altercation with a disgruntled pawn store customer.  The pawn store was run by the defendant from his house and it was not exactly "authorized."  The defendant's sentence was increased because his acts constituted felony disorderly conduct under the state statute.  He argued that because it occurred on the Reservation, it could only be a misdemeanor.  The 9th held the enhancement of +4 was warranted because felon in possession was a general crime, and it included the Reservation; the assimilative crimes act (ACA) also imported state offenses to non-Indians, which the defendant was.
As for SR conditions, the court imposed a "search of computers." The 9th affirmed, holding that the condition only required "some nexus" to the goals set forth in 3553.  The nexus was that the defendant had run a pawn shop, using paper ledgers, but in the future, could use a computer.

Kozinski dissented from this affirmance of the SR conditions.  He basically said "come on!"  He argues that the condition allows the probation officer to search computers for some reason or no reason, despite the fact that the offense did not require a computer, the defendant did not own a computer, and the so-called nexus is really no nexus, as anyone, at any time, could use a computer to do some offense.  Kozinski also states that the majority misuses memorandum decisions for precedent, and that the decision itself runs counter to other precedent.
The decision is here:


Sunday, November 22, 2015

Case o' The Week: The 411 on 211 - Cal Robberies not Violent Felonies for ACCA - Dixon

The Hon. Judge Carlos T. Bea

  In Anderson, the California Supreme Court upheld a robbery conviction under California Panel Code Section  211 – even though the use of force was accidental, and not intentional.  A good decision for D.A.s. 

  Not so hot, it turns out, for AUSAs.

United States v. James Dixon, No. 14-10318 (9th Cir. Nov. 20, 2015), decision available here.

Players: Decision by Judge Bea, joined by Judges W. Fletcher and Berzon.

Facts: Dixon, who had nine prior felonies, plead guilty to Section 922(g)(1) (“felon in possession.) Id. at 4. 

The district court found that three convictions were “violent felonies” under the ACCA: two of those were California Penal Code (“CPC”) § 211 robberies. Id. 

Dixon was sentenced to the mand-min 15-year sentence. Id.

Issue(s): “Dixon appeals only his sentence, claiming, as he did in the district court, that he did not have three ‘violent felony’ convictions, as defined by the ACCA, and thus does not qualify for the mandatory minimum sentence.” Id.

Held:We conclude that CPC § 211 is not a categorical match because it criminalizes conduct not included within the ACCA’s definition of ‘violent felony.’” Id. at 7. 

“[W]e turn next to whether CPC § 211 is divisible into violations that meet the ACCA’s definition of ‘violent felony’ and others that do not. We have little trouble finding that CPC § 211 is not divisible.” Id. at 10. 

“Because CPC § 211 criminalizes conduct not included in the ACCA’s definition of ‘violent felony’ and is not divisible, a conviction for violating CPC § 211 cannot serve as a predicate ‘violent felony’ conviction for the application of a mandatory minimum sentence under the ACCA . . . . As a result, we vacate the district court’s imposition of the mandatory minimum sentence and remand this case to the district court for resentencing.” Id. at 12.

Of Note: Dixon is an admirably clear, textbook analysis of a state statute’s viability as a “violent felony” under Johnson. Judge Bea first determines that this is not a categorical match, distinguishing precedent in the context of other guidelines with different definitions. Id. at 7-8. He looks at state law, and finds California permits § 211 robbery convictions beyond the key and core limiting requirements of Johnson: (i) Johnson-eligible priors must involve the use of violent force, or force capable of causing physical pain or injury, and must involve (ii) the intentional use of force. Id. at *9. 

Judge Bea then examines the divisibility of CPC § 211, correctly observing that the disjunctively worded phrases in this statute describe alternative means, not alternative elements. Id. at 11. 

Read Dixon for the very welcome outcome, but also take a close look at this blueprint for mounting Johnson attacks on other state priors.

How to Use: Unfortunately, CPC § 211 priors may still count as a “crime of violence” under the current illegal reentry guideline, USSG § 2L1.2(b)(1)(A)(ii). See id. at 7 (discussing the different definition in the reentry

guideline and Ninth authority holding that § 211 qualified as “crime of violence” in that context). 

Notably, however, the identical ACCA definition of “violent felony” is used in the Career Offender guideline, USSG § 4B1.2(a)

And that Career Offender definition is then incorporated by reference into the “gun” guideline, USSG § 2K2.1 comment. n.1

The punchline? 

After Johnson and Dixon, it is all but certain that CPC § 211 “Cal robbery” priors are not “crimes of violence” triggering Career Offender exposure, or generating those big offense level jumps for felon-in-possession cases (up to Offense Levels 20 – 26). Invoke Dixon and contest Cal Robbery priors as “crimes of violence” for those guideline provisions.  
For Further Reading: The timing of Dixon is impeccable. Just three days before the Ninth’s decision, the District Court, Northern District of California, presumptively appointed the Federal Public Defender and the CJA panel to handle Johnson habeas litigation. See Misc. Order 2015.11.17, available here.

The FPD has received and is reviewing lists of (hundreds) of potentially eligible candidates from the Sentencing Commission – NorCal folks should look for updates on the Johnson procedures and reports on petitioner eligibility in the weeks and months ahead.  

Image of the Honorable Judge Carlos Bea from (the interesting)

Image of the federal sentencing guidelines manual, 2014-2015 edition, from,204,203,200_.jpg  

Steven Kalar, Federal Public Defender, Northern District of California. Website at


Labels: , , , , , ,