Thursday, January 14, 2016

Tenth Mixes and Matches to Find that California Robbery Conviction is a Crime of Violence

United States v. Castillo, 2015 WL 8774441 (12/15/2015)(published)(UT): The panel finds there is no “one-crime of violence limit . . . in the Guidelines.” Castillo argued that his robbery conviction under California Penal Code § 211 was not a crime of violence as defined in USSG § 2L1.2. He said that § 211 sweeps more broadly than the generic crime of robbery because taking by fear includes a fear of unlawful injuries to property as well as to people. Too broad?, not at all, writes the panel; “a violation of § 211 achieved through threats to a person meets the generic robbery definition, while a violation of § 211 based on a threat to property corresponds to generic extortion.” In other words, if it wasn't a conviction for generic robbery, then it was a conviction for generic extortion. The panel comes to this conclusion because “nothing in the Guidelines or related authorities suggests a court is limited to considering only a single corresponding crime of violence when evaluating a state statute under the categorical framework.”

This approach seems to disregard Descamps’ measured, analytical approach and encourages the government to hunt around for as many other crimes of violence into which it can shoehorn the state statute at issue. The panel cites very little precedent for its approach. The main case upon which it relies, United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) is a pre-Descamps case, which has been questioned by another Ninth Circuit panel in United States v. Dixon, 805 F.3d 1193, 1196-97 (9th Cir. 2015). There the court held § 211 is not a categorical match to the ACCA’s definition of violent felony because it criminalizes conduct not included within the ACCA’s definition of violent felony. But the Tenth also uses the ACCA’s definition of violent felony to determine whether a prior conviction is a crime of violence within the meaning of §2L1.2 and finds, contrary to Dixon, that a conviction under § 211 is a “violent felony.” The Tenth panel does not mention Dixon in its opinion.