Thursday, November 30, 2017

US v. Molinar, No. 15-10430 (11-29-17)(Friedland w/Christen; dissent Fletcher)(Note:  This is an Ariz. FPD case).

The 9th holds that Arizona's robbery statute does not categorically involve the use of violent force.  As such, it does not qualify as a "crime of violence" under the force clause.  The majority however does find that it qualifies as generic robbery under the Guidelines definition of the term. Dissenting, Fletcher asserts that the statute is overbroad with respect to generic robbery as well.
In the majority opinion, the 9th recognizes that the Supreme Court's decision in Johnson v. US, 559 US 133 (2010) overrules prior 9th precedent that found the Arizona statute to be a COV under the force clause.  The 9th's analysis for the generic or enumerated term focuses on "immediate danger to the person." In its analysis, it concludes that the state's application of robbery to include an implied threat falls within a generic understanding.  The majority acknowledges that it is a close question.  This also applied to attempted robbery.

In the dissent, Fletcher argues that the state courts expanded the generic definition under State v. Moore, 2014 WL 4103951 (Ariz Ct App) to beyond the generic definition.
Although the sentence was confirmed, Ryan Moore, AFPD with Arizona (Tucson), fought hard and well, overturned 9th precedent, won on "force," and has a circuit split.

The decision is here:


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