California Battery Conviction Not 2L1.2 Crime of Violence

U.S. v. Herrera, 2008 WL 2698644 (7/11/08) (unpub'd) - Although unpublished, this case deserves top billing because it's quite an achievement---a plain error reversal of a "crime of violence" § 2L1.2 16-level enhancement on rather esoteric grounds. The defendant was represented by CJA counsel Angela Arrellanes and Scott Davidson. The 10th held that the defendant's conviction for battery under California law was not a "crime of violence." First, the court engaged in a must-read discussion of when to apply the pure, and when to apply the modified, categorical approach. You apply the modified categorical approach, i.e., you can look at court documents, such as the indictment, etc., only when the statute in question can be divided into two or more separate element sets, e.g. a battery statute that can be committed by rude touching or by causing bodily injury. It is not enough that the statute covers both violent and non-violent offenses to trigger the modified approach. In this case the California statute only has one set of elements in every situation: (1) wilful and unlawful use of (2) force or violence, and (3) against the person of another. The statute could not be divided into those involving force and those involving violence because under California law "force or violence" is a term of art. So, the pure categorical approach applied. California law indicated a battery conviction could be committed by the "least touching." This did not amount to the use of the active, violent "physical force" required to qualify as a "crime of violence" under § 2L1.2. It did not matter that the battery could be committed in a violent way. The court could not look at the underlying court documents.

The 10th found the enhancement error to be plain, [the 2d prong of the plain error test] (despite the lengthy discussion to get to the point of finding error) because California state law was unanimous about the force required to constitute battery, the Ninth Circuit considered California battery not to be a "crime of violence" and, most significantly, because "an improper interpretation or application of the Guidelines is plain error." The 3rd and 4th prongs of the plain error test were met because the enhancement was substantial, the judge probably would give a lower sentence on remand and it is a miscarriage of justice for a defendant's incarceration to be significantly lengthened based on an improper legal interpretation. Far out.