Sunday, June 26, 2016

Case o' The Week: The Ninth Goes Generic - Cisneros and Categorical Analysis of Oregon Priors

 Just another “generic” decision (happily!)
United States v. Cisneros, 2016 WL 3435389 (9th Cir. June 22, 2016), decision available here.

The Hon. Judge N.R. Smith
Players: Decision by Judge N.R. Smith, joined by Judges Goodwin and Ikuta. Big win for D. Or. AFPD Brian Butler.  

Facts: Cisneros was sentenced to an ACCA mandatory-minimum fifteen years. Id. at *2. He had six priors: conspiracy to deliver a controlled substance, three Oregon eluding felonies, and two first-degree Oregon burglaries. Id. The district court held that all six prior convictions qualified as predicates. Id. The Ninth upheld the sentence, but a G.V.R. (granting, vacating, and remanding) from the Supreme Court sent the case back to the Circuit.

Issue(s): “We must determine whether at least three of Cisneros's previous convictions are . . . violent felonies under ACCA.” Id. “[I]n order for ACCA's mandatory-minimum sentence to apply to Cisneros, both of his previous convictions for first-degree burglary under [Or. Rev. Stat.] section 164.225 2 must qualify as . . .  violent felonies. [T]hey do not have ‘as an element the use, attempted use, or threatened use of physical force.’ . . . ‘Therefore, we must determine whether Cisneros's convictions for first-degree burglary qualify as violent felonies under § 924(e)(2)(B)(ii)—i.e. whether a conviction for first-degree burglary under Oregon law is a categorical match to generic burglary under federal law.’” Id. at *3.

Held:The government concedes that these prior [Oregon fleeing or attempt to elude police] convictions are not . . . violent felonies. We agree . . .” Id. at *2. 
  “Oregon's burglary statute is not a categorical match to generic burglary, because the Oregon statute defines building more broadly than does generic burglary and therefore criminalizes more conduct than generic burglary.” Id. at *4. ‘Oregon Revised Statutes section 164.225 is not divisible. This conclusion ends our inquiry; we need not proceed to step three. Cisneros's burglary convictions are not a categorical match to generic burglary, because the Oregon statute is overbroad and indivisible. Therefore, such convictions do not qualify as violent felonies under § 922(e)(2)(B) and ACCA’s mandatory minimum sentence is not applicable to Cisneros.Id. at *6.

Of Note: Big week, for Johnson efforts – and all good news. In addition to the Ninth’s decision in Cisneros, the Supreme Court issued Mathis, 2016 WL 3434400 (June 23, 2016). Justice Kagan explains that the “underlying brute facts or means” make no difference when there’s a mismatch of elements between the prior and the generic offenses: even if the defendant’s conduct in the prior fits within the generic offense. Id. at *6. A big win for Iowa Fed. Defender James Whalen. 
   And back in the Ninth, an unusual event: a published decision from a Screening Panel (Judges Bea, Watford, and Friedland). In Orona v. United States, 2016 WL 3435692 (June 22, 2016), the per curiam opinion explains that the AEDPA clock is tolled when a petitioner files a SOS motion in the Ninth. Id. at *2. Good news for the Johnson brigades nervously checking SOS dockets, as the 1-year Johnson deadline loomed. See generally id. at *2. (“Given the large volume of second or successive applications our court must process each month, it frequently takes us longer—sometimes much longer—than 30 days to rule on such applications.”)  

How to Use: Mathis and Cisneros are welcome additions for our § 2255 oppositions that are soon due. Now, keep a nervous storm eye this week on the impending Voisine. See Professor Rory Little’s (gloomy) blog analysis here
  The good Prof. has been right before: here’s hoping his prediction is off the mark, this time.
For Further Reading: Paresh, your office is a mess! For a nice piece on all of our Johnson efforts, and a well-deserved shout-out for our Johnson hero, Paresh Patel, see One of Scalia’s Final Opinions Will Shorten Some Federal Prison Sentences, available here.

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

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