Sunday, June 07, 2020

Case o' The Week: Mathis Path Is Blocked, for Walker - Walker and Proof of ACCA Predicates

  In a previous bout with Mathis, Judge Bybee admitted to being “frustrated with the whole endeavor.” United States v. Martinez-Lopez, 864 F.3d 1034, 1058 (9th Cir. 2017) (Bybee, J., “concurring in part and dissenting in part, but frustrated with the whole endeavor.”)

The Hon. Judge Bybee
   He seems less frustrated, this time around. (Unfortunately).
United States v. Walker, 953 F.3d 577 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith and visiting Judge Melloy. 
  Hard-fought appeal by ED Cal AFPD Peggy Sasso.  

Facts: Walker pleaded guilty to being a felon in possession of a firearm. Id. at *578. He had three prior convictions for “willfully inflicting corporal injury” on a spouse or cohabitant, in violation of California Penal code § 273.5: one in 1998, a second in ’99, and a third in 2014. Id.
  Walker did not admit to having been convicted of these felonies, so the government presented certified copies of the prior judgments. Id. The district court determined that Walker had previously been convicted of three separate violent felonies, triggering a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Id.

Issue(s): Walker “argues that it was error under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), for the district court to have determined that his prior convictions were separate incidents, and that such determination had to be made by a jury.” Id.
  “To get around [Ninth Circuit precedent in] Grisel, Walker claims that the case has been implicitly overruled by Mathis v. United States, . . . 136 S. Ct. 2243, 2253 . . . (2016). Specifically, he points to discussions in Mathis explaining that a ‘non-elemental fact’ cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his prior convictions are non-elemental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.” Id. at 581.

Held: “Context, however, shows that Mathis is not so encompassing as to abrogate Grisel.” Id.
  “With no on-point discussion in Mathis regarding how judges determine the number of prior offenses, Walker fails to show that Grisel “is clearly irreconcilable with [Mathis’s] reasoning or theory.” Miller, 335 F.3d at 893. To the extent that Mathis expresses broader disfavor of factual determinations by sentencing judges, it is not clear whether and how this disfavor extends beyond determining that a given state-law crime is an ACCA predicate . . . Pointing to “’some tension’ between [stray statements in Mathis] and prior circuit precedent” is not enough for the panel to consider Grisel overruled. Lair, 697 F.3d at 1207. In finding that Walker had been convicted of three or more violent felonies, the sentencing judge needed to look no further than the face of the certified judgments to determine these convictions were for distinct acts.” Id. at 581.

Of Note: Judge Bybee’s disappointing reading of the Supreme Court’s decision in Mathis is not the only bad news in this ACCA decision. The Ninth also rejects defense arguments that California D.V. cases under Cal. Penal Code § 273.5 are not crimes of violence. See id. at 579-80.
  A tough decision all around, for those fighting the staggering mand-mins in ACCA cases.

How to Use: Because Ninth precedent confronted Walker at every turn, the leitmotif of his appeal was trumpeting intervening Supreme Court precedent on the categorical approach and ACCA predicates. As a result, Judge Bybee spends much of this short opinion arguing why old Ninth cases dodge new SCOTUS bullets. See, e.g., id. at 580 (discussing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), in context of challenge to Cal. P.C. § 273.5); id. at 581 (discussing Miller in context of Mathis’s limitations of judicial findings for predicate offenses).
  Putting aside the persuasiveness of Walker’s Miller analysis, it is a decision worth a read if you’re urging a three-judge panel to correct bad Ninth law after an intervening Supreme Court opinion.
For Further Reading: San Francisco’s most iconic symbol, the Golden Gate Bridge, hosted another iconic Bay tradition: a peaceful protest. Yesterday thousands of marchers shut down the bridge, protesting the killing of George Floyd and systemic police racism and violence. See article and video here

  Look for more protests by public defenders tomorrow, in the Bay Area and across the country.

Image of the Honorable Judge Bybee from

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



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