Monday, July 31, 2017

Case o' The Week: Frustrated with the Whole Endeavor - Martinez-Lopez and Indivisible vs. Divisible Statutes

“Concurring in part and dissenting in part, but frustrated with the whole endeavor.”
   Judge Bybee’s candid assessment is a good preview for the Ninth’s latest foray into Taylor categorical / modified categorical sentencing.
  United States v. Martinez-Lopez, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc) decision available here.

Earl Warren Building, home of the California Supreme Court, San Francisco, California

Players: Decision by Judge Tallman, joined by Judges Kozinski, O’Scannlain, McKeown, Clifton, Bybee, Callahan and Bea.
  Judge Berzon, CJ Thomas, and Judge Reinhardt concurring in part. Partial concurrence and partial dissent by Judge Bybee. 
  Judges Reinhardt and CJ Thomas dissenting in part.
  Hard fought appeal by CD Cal Deputy Public Defenders David Menninger and Matthew Larsen, with Defender amicus by Assistant Federal Defenders Vincent Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc.

Facts: Mr. Martinez-Lopez was convicted of illegal reentry following deportation, in violation of 8 USC § 1326. Id. at *2. The court treated a California H&S Code § 11352 (drug prior) as divisible, employed the modified categorical approach, determined it was a +16 offense level offense under (the old) reentry guidelines, and sentenced him to 77 months. Id.
  The case went on banc: during the litigation the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016).

Issue(s): “We took this case en banc to revisit the divisibility of California drug statutes.” Id. at *1.
  “On appeal, Martinez-Lopez argues that section 11352 is indivisible with regard to both its controlled substance requirement and its actus rea requirement.” Id. at *2.

Held:We disagree, and conclude that both requirements are elements under Mathis, thus rendering section 11352 divisible and subject to the modified categorical approach. Because Martinez-Lopez previously pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the guidelines . . . we affirm.” Id. at *2.

Of Note: What are the elements of § 11352? On that answer much hinges: elements determine the "divisibility" of a statute, and divisibility determines whether a federal court can muck about prior conviction records in a modified categorical approach (which translates into radically more time for our clients). 
  Judge Berzon, an expert in this area of law (see Descamps), balks at Judge Tallman’s categorization of the actus rea component of § 11352 as an “element.” See id. at *9 (Berzon, J., concurring). A majority of the California Supreme Court did not so hold in People v. Patterson, 778 P.2d 549 (1989)id. at *12, and nary a single Cali court has cited Patterson for the proposition claimed in the majority opinion, id. at *13. 
  In a recommendation that would do a Federalist proud, Judge Berzon suggests that the Ninth Circuit not presume to tell the State of California what California law means. Instead, the Ninth should ask. Id. at *19.
   Penning this from the federal building in San Francisco, across the street from the home of the California Supreme Court, the irony of this dilemma is palpable. The
Tenderloin Neighbors: the California Supreme Court, and the Ninth Circuit Court of Appeals
California Supreme Court is a whopping .4 miles from the Ninth Circuit, here in the City by the Bay. The Justices and Judges could have trudged through the Tenderloin, met at Philz, and hashed it out over a cup of joe. Or, as Judge Berzon less flippantly suggested, the Ninth could have certified this state law issue to the Cal Supreme Court for a definitive answer on whether the actus rea in Cal H&S Code § 11352 is a means, or an element. Id. at *20.
  Recall that Judge Berzon’s formidable arguments in Aguila Montes de Oca ultimately prevailed in Descamps. Knock wood that SCOTUS again recognizes that she has the better argument in Martinez-Lopez.

How to Use: When this case went en banc we mused a bit about the potential downstream effects of Martinez-Lopez. See blog entry here
  As to the immediate impact, note that Martinez-Lopez was sentenced under the November 1, 2012 edition of the guidelines. Id. at *2 & n.2. The November 1, 2016 (current) version of this guideline, § 2L1.2, is no longer plagued with this specific offense adjustment. See USSG Sec. 2L-X (Nov. 1, 2016), available here.
     Like the recent Chavez-Cuevas case, , Martinez-Lopez is, in some sense, an instant relic – it involves a guideline which no longer exists.
For Further Reading: When Martinez-Lopez went en banc, we also wondered what impact the (at that point unknown) Ninth Justice would have on the Supreme Court’s Taylor jurisprudence. See blog entry here
  Now, with Justice Gorsuch on the Court, it is worth a revisit to Professor Evan Lee’s thoughtful post on the tight SCOTUS majority in Mathis (and the potential impact of a fed-up Kennedy on the Taylor line of law). See SCOTUS blog here

Image of the walk from the Ninth Circuit Court of Appeals to the California Supreme Court, in San Francisco, from Google Maps.

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


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