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


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