655 F.3d 915 (9th Cir. 2011), 05-50170, United States v. Aguila-Montes de Oca

Docket Nº:05-50170.
Citation:655 F.3d 915
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Guillermo AGUILA-MONTES DE OCA, Defendant-Appellant.
Attorney:Steven F. Hubachek and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Mark R. Rehe, Assistant U.S. Attorney, Criminal Division, San Diego, CA, for the plaintiff-appellee.
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, BARRY G. SILVERMAN, WILLIAM A. FLETCHER, RONALD M. GOULD, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges. PER CURIAM Opinion; Opinion by Judge BYBEE; Concurren...
Case Date:August 11, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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655 F.3d 915 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Guillermo AGUILA-MONTES DE OCA, Defendant-Appellant.

No. 05-50170.

United States Court of Appeals, Ninth Circuit.

August 11, 2011

Argued and Submitted March 25, 2010.

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Steven F. Hubachek and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Mark R. Rehe, Assistant U.S. Attorney, Criminal Division, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. CR-04-02175-RTB.

Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, BARRY G. SILVERMAN, WILLIAM A. FLETCHER, RONALD M. GOULD, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

PER CURIAM Opinion; Opinion by Judge BYBEE; Concurrence by Judge BERZON; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

OPINION

PER CURIAM:

A majority of the en banc court (Judge Bybee, joined by Judges Rymer, Silverman, Gould, Rawlinson and Callahan) overrules our prior holding in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc), that the modified categorical

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approach doesn't apply " [w]hen the crime of conviction is missing an element of the generic crime altogether."

A different majority (Judge Bybee, joined by Chief Judge Kozinski and Judges Rymer, W. Fletcher, Berzon, M. Smith and N.R. Smith) overrules our prior decisions to the extent they hold that a conviction under California Penal Code § 459 qualifies as a generic burglary conviction if the defendant pleaded guilty to entering a building " unlawfully" or a jury found the defendant guilty as charged in an indictment reciting that allegation. This majority concludes that Aguila-Montes's prior conviction under California Penal Code § 459 cannot be used to enhance his sentence.

The district court's sentence is VACATED, and the case is REMANDED to the original three-judge panel for consideration of the remaining issues raised on appeal.

BYBEE, Circuit Judge:

We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), to govern application of the modified categorical approach.

The categorical and modified categorical frameworks, first outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), establish the rules by which the government may use prior state convictions to enhance certain federal sentences and to remove certain aliens. In the twenty years since Taylor, we have struggled to understand the contours of the Supreme Court's framework. Indeed, over the past decade, perhaps no other area of the law has demanded more of our resources. See, e.g., United States v. Strickland, 601 F.3d 963, 967-71 (9th Cir.2010) (en banc); Marmolejo-Campos v. Holder, 558 F.3d 903, 912-13 (9th Cir.2009) (en banc); United States v. Snellenberger, 548 F.3d 699, 700-02 (9th Cir.2008) (en banc) (per curiam); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159-60 (9th Cir.2008) (en banc); United States v. Vidal, 504 F.3d 1072, 1086-90 (9th Cir.2007) (en banc); Navarro-Lopez, 503 F.3d at 1073; United States v. Grisel, 488 F.3d 844, 847-48, 851-52 (9th Cir.2007) (en banc); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132-35(9th Cir.2006) (en banc); United States v. Corona-Sanchez, 291 F.3d 1201, 1211-13 (9th Cir.2002) (en banc), superseded by U.S. SENTENCING GUIDELINES MANUAL (" U.S.S.G." ) § 2L1.2 cmt. n. 4 (2002).

In Navarro-Lopez, we stated that " [t]he modified categorical approach ... applies when the particular elements in the crime of conviction are broader than the generic crime." 503 F.3d at 1073. We then declared:

When the crime of conviction is missing an element of the generic crime altogether, we can never find that " a jury was actually required to find all the elements of" the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).

Id.

Today, we conclude that Navarro-Lopez 's " missing element" rule is not required by the Supreme Court's modified categorical approach established in Taylor. We overrule that portion of Navarro-Lopez. Applying the modified categorical approach to this case, we nevertheless agree with the panel's determination that Defendant-Appellant Guillermo Aguila-Montes de Oca's (" Aguila" ) conviction under California Penal Code § 459 does not qualify as a " crime of violence" under either the categorical or modified categorical approach. Accordingly, we vacate the district court's sentence and remand to the original three-judge panel for consideration

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of the remaining issues Aguila raised on appeal.

I

Aguila is a native and citizen of Mexico. On July 5, 2004, Aguila attempted to enter the United States at the San Ysidro, California, point of entry. Customs officers determined by computer that Aguila had been previously deported from the United States, and arrested him. The government charged Aguila in the Southern District of California with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. A jury convicted him, and the district court sentenced Aguila to 120 months in prison and two years of supervised release.

During sentencing, the district court determined that, in 1988, Aguila had pled guilty to first degree residential burglary, in violation of California Penal Code § 459. That statute punishes " [e]very person who enters [various structures] ... with intent to commit grand or petit larceny or any felony." CAL. PENAL CODE § 459. Based on this prior offense, the district court enhanced Aguila's sentence under U.S.S.G. § 2L1.2, which provides a sixteen-level enhancement for defendants previously deported after " a conviction for a felony that is ... a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A). The Guidelines' Application Notes specifically define " crime of violence" to include " burglary of a dwelling." Id. § 2L1.2 cmt. n. 1(B)(iii). The district court held that Aguila's California burglary conviction qualified as " burglary of a dwelling" and accordingly enhanced his sentence by sixteen levels.

Aguila appealed his sentence,1 and we first affirmed the district court's sentence but then withdrew that opinion on rehearing and reversed. See United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir.2008) ( " Aguila I " ), withdrawn and replaced by United States v. Aguila-Montes de Oca, 553 F.3d 1229 (9th Cir.2009) (" Aguila II " ). In Aguila I, applying the two-part approach outlined in Taylor, we first held that the California burglary statute is categorically broader than the generic definition of " burglary of a dwelling" because the statute " does not require that the entry be unlawful or unprivileged." Aguila I, 523 F.3d at 1076 (quotation marks omitted). In a footnote, we then distinguished Navarro-Lopez based on the reasoning that, in Aguila's case, " both the crime of conviction and the generic crime have the same basic elements." Id. at 1077 n. 2 (citing People v. Davis, 18 Cal.4th 712, 76 Cal.Rptr.2d 770, 958 P.2d 1083, 1085 (1998) (describing the elements of California's burglary offense as (1) entry, (2) into any building or other listed structure, (3) with intent to commit larceny or any felony)). Although " generic burglary also requires that the entry be unlawful or unprivileged," we stated, " [t]his d[id] not ... create an additional element, but merely describe[d] one type of entry among many possible entries, including unprivileged, forcible and unauthorized entries." Id. (quotation marks omitted). Having determined that the California statute was not " missing an element" of the generic crime, Navarro-Lopez, 503 F.3d at 1073, we applied the modified categorical approach and concluded

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that because the documents of conviction, see Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), " reveal[ed] that [Aguila's] entry was unlawful," his prior offense " satisfie[d] the generic definition of burglary of a dwelling." Aguila I, 523 F.3d at 1078.

One year later, we withdrew our Aguila I opinion in Aguila II, and relied entirely on Navarro-Lopez to reverse and remand to the district court to impose a sentence without the sixteen-level enhancement. Aguila II, 553 F.3d at 1234. We did not alter Aguila I 's analysis with respect to the categorical approach. Compare id. at 1233, with Aguila I, 523 F.3d at 1075-76. However, unlike in Aguila I, we determined that generic burglary requires as an element that the entry be " unlawful or unprivileged." See Aguila II, 553 F.3d at 1234 (characterizing generic burglary as requiring " (1) entry, (2) which is unlawful or unprivileged, (3) into a building or structure, (4) with intent to commit a crime" ). In contrast, we noted, the California statute requires only " (1) entry, (2) into any building or other listed structure, (3) with intent to commit larceny or any felony." Id. We therefore held that, under Navarro-Lopez, we could " not apply a modified categorical approach ... because the state crime of which Aguila-Montes was convicted lacks an element of the generic crime of the Guidelines [,] ... namely, that the entry must have been ‘ unlawful or unprivileged.’ " Id. at 1233-34. Accordingly, we held that the district court erred in characterizing Aguila's prior offense as a " crime of violence." Id. at 1234.2

On a vote of the majority of nonrecused active judges on our court, we decided to rehear this...

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