Sunday, October 02, 2016

Case o' The Week: Deja Vu, All Over Again - En Banc Ninth Returns to Categorical Sentencing

An en banc court of the Ninth Circuit will definitively teach us how to determine the divisibility of criminal statutes, and when to employ the categorical and modified categorical approaches.
United States v. Martinez-Lopez, No 14-50014 (Ord., sua sponte, taking case en banc) (9th Cir. Sept. 26, 2016), order available here.

Supreme Court seat, draped in black after Justice Scalia's passing.
 Players: Sua sponte en banc call announced by Chief Judge Thomas. Original appeal by CD Cal AFPDs Matthew Larsen and David Menninger. 
  Original panel, filing order vacating submission of the case: Judges Reinhardt, Noonan and Nguyen. 
  Related case, United States v. Rosales-Aguilar, stayed pending resolution of Martinez-Lopez by Judges Kozinski, O’Scannlain, and Bybee.

Facts: Martinez-Lopez pleaded guilty to illegal reentry, and was hit with the +16 OL increase for a “drug trafficking” prior under Cal.Health & Safety Code § 11352. Appellant’s Opening Brief, Dkt. 14-1 at 7 (“AOB”). 
  Martinez-Lopez (unsuccessfully) contested the enhancement, arguing that under Descamps, 133 S.Ct. 2276 (2013), this statute was not divisible, and the modified categorical approach was thus verboten. Id. at 4. 
  After oral argument in the Ninth, the panel stayed submission pending resolution of United States v. Rosales-Aguilar, No. 14-50315. Then, last August, there was a sua sponte call for en banc consideration of Martinez-Lopez
  On September 26, 2016, Martinez-Lopez was ordered to be heard en banc. Argument is scheduled for the week of January 17, 2017. The Court then granted Martinez-Lopez’s motion to file supplemental briefing in light of Mathis v. United States, 136 S.Ct. 2243 (2016).

Issue(s): (Narrow): Is § 11352 a “divisible” statute, permitting a modified categorical analysis?

  (Broad): How will the Ninth Circuit approach the “divisibility” of statutes after the Supreme Court’s decision in Mathis?

Held: ? We’ll know in 2017 (or maybe 2018.) An earlier Ninth en banc effort on a similar sentencing issue took seventeen months from oral argument, to the arrival of the decision. See Aguila Montes de Oca post here.  
  (Interestingly, Aguila Montes de Oca survived little longer than the deliberation: it was abrogated two years later by Descamps).

Of Note: What’s an “element?” We’ve been debating that, well, “elemental” question since Apprendi and Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). 
  Justice Kagan took another stab at the question in the Mathis decision, explaining what constitutes an “element” in the context of the ACCA. 136 S.Ct. 2243. 
  Why the brouhaha? It’s an important question, because if a statute just provides alternative means of committing a crime (mere facts illustrating how one can commit the crime), a district court can’t rummage about an old conviction record with the modified categorical analysis. Id. at 2253. 
  By contrast, if a statute requires different elements – requirements that must be proved to a unanimous jury for a conviction -- the modified categorical approach can be “used as a tool to identify the elements of the crime of conviction.” Id. 
  It makes a big difference: for Mr. Martinez Lopez, this categorization question means years in federal custody.
  So, are the verbs of H&S §11352 – transports, imports, sells, furnishes, administers, or gives away – “mere facts,” or required elements, after Mathis? The State has been clear – for eighty years Cali D.A.’s have not needed jury unanimity on how a defendant violates § 11325 to earn a conviction (the classic requirement of an “element.”)
  Will the Ninth honor what California has made clear: that H&S § 11352 is laced with "mere facts," verbs that are not elements? Time will tell.            

How to Use: If illegal reentry cases aren’t on your docket, does Martinez Lopez matter? 
  For example, Johnson litigators have argued that Ninth caselaw on the divisibility of the fed bank robbery statute is pre-Mathis. When correctly interpreted as a single crime with a single set of elements, § 2113(a) reaches non-violent conduct and is not a “crime of violence.” See United States v. Asim Daniels, 11-CR-470 H (S.D. Cal. 2016) (reply brief of AFD Kara Hartzler).
  Potentially plenty of collateral impact, from this en banc case. Watch for opportunities to preserve this issue for appeal, on this unsettled issue.
For Further Reading: Which Ninth jurist will ultimately have the biggest impact on the outcome of Martinez-Lopez?
  Trick question: it probably is the as-yet-unknown Ninth – Justice.
   For further musings on Mathis, the Supremes, and trends for the categorical analysis, see the SCOTUS blog here.  

Image of the black-draped chair, at the Supreme Court, from

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


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