876 F.3d 953 (9th Cir. 2017), 15-10430, United States v. Molinar
|Citation:||876 F.3d 953|
|Opinion Judge:||FRIEDLAND, Circuit Judge:|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Sanchez MOLINAR, Defendant-Appellant.|
|Attorney:||J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant. Robert Lally Miskell (argued), Appellate Chief; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.|
|Judge Panel:||Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges. Dissent by Judge W. Fletcher W. FLETCHER, Circuit Judge, dissenting:|
|Case Date:||November 29, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
"›Declined to Extend by United States v. Jones, 9th Cir. (Ariz.), December 15, 2017
Argued and Submitted September 14, 2016 San Francisco, California
Appeal from the United States District Court for the District of Arizona, James Alan Soto, District Judge, Presiding, D.C. No. 4:14-cr-01069-JAS-BGM-1
J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.
Robert Lally Miskell (argued), Appellate Chief; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.
Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.
Dissent by Judge W. Fletcher
The panel affirmed the district court's imposition of a sentencing enhancement based on the defendant's prior Arizona conviction for attempted armed robbery, which the district court treated as a "crime of violence" under the U.S. Sentencing Guidelines.
The panel wrote that this court's conclusion in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona armed robbery is a crime of violence under USSG § 4B1.2's force clause, is clearly irreconcilable with the Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010), and has therefore been effectively overruled. The panel concluded that Arizona armed robbery can no longer be considered a categorical crime of violence under Section 4B1.2's force clause.
The panel held that Arizona robbery (and thus armed robbery) is a categorical match to generic robbery, and that Arizona attempt is equivalent to generic attempt, so the defendant's conviction does constitute a crime of violence under Section 4B1.2's enumerated felonies clause.
Dissenting, Judge Fletcher wrote that under the plain-meaning understanding of "immediate danger to the person, " the circumstances in State v. Moore, 2014 WL 4103951 (Ariz.Ct.App.), did not involve such danger, and that Arizona's definition of robbery is therefore broader than the generic definition and is not a categorical match to generic robbery.
The opinion filed on November 29, 2017, and appearing at 876 F.3d 953, is hereby amended as follows: On page 960, note 8, the citation "Commonwealth v. Zangari, 42 Mass.App.Ct. 931, 677 N.E.2d 702, 703 (1997) ("[W]here the snatching or sudden taking of property from a victim is sufficient to produce awareness, there is sufficient evidence of force to permit a finding of robbery.") (quoting Commonwealth v. Davis, 7 Mass.App.Ct. 9, 385 N.E.2d 278, 279 (1979));" is deleted. In addition, on page 964, in the dissent, "see also United States v. Parnell, 818 F.3d 974, 982 (9th Cir. 2016) (Watford, J., concurring) (noting that at common law, "[t]o commit robbery, the defendant also had to use violence or intimidation to coerce the victim into parting with his property")" is added after "Santiesteban-Hernandez, 469 F.3d at 830 ("The immediate danger element is what makes robbery deserving of great punishment than that provided for larceny." (internal quotation marks omitted))".
With the foregoing amendments, Judge Friedland and Judge Christen vote to deny the petitions for panel rehearing and rehearing en banc, and Judge Fletcher votes to grant the petitions. Appellant's petition for panel rehearing, filed December 12, 2017, is DENIED. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc, filed the same date, is DENIED. No future petitions shall be entertained.
FRIEDLAND, Circuit Judge:
Rogelio Sanchez Molinar challenges the district court's imposition of a sentencing enhancement based on his prior Arizona conviction for attempted armed robbery, which the court treated as a " crime of violence" under the U.S. Sentencing Guidelines Manual (" USSG" or " Guidelines" ). We previously decided in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona attempted armed robbery should be considered a crime of violence under the relevant Guidelines provision. Id. at 1238. But we must now reexamine that holding in light of the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which construed a similarly worded crime-of-violence provision in the Armed Career Criminal Act (" ACCA" ). Id. at 140, 130 S.Ct. 1265. Although Johnson does require us to depart from some of our analysis in Taylor, we conclude that Arizona attempted armed robbery nonetheless qualifies as a crime of violence for reasons other than those relied upon in Taylor . Accordingly, we affirm.1
Molinar pled guilty to federal charges for being a felon in possession of ammunition. Among other prior felonies, Molinar had previously been convicted of attempted armed robbery under Arizona law.
In sentencing Molinar for the ammunition convictions, the district court applied the firearms guideline, which included an enhancement if " the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence." U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) (U.S. SENTENCING COMM'N 2014).2 The guideline defined " crime of violence" by cross-referencing Section 4B1.2(a) and Application Note 1 of the Commentary to Section 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1. At the time, Section 4B1.2(a) read as follows: (a) The term " crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the " force clause" or the " elements clause" ], or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [known as the " enumerated felonies clause" ], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the " residual clause"
Id. § 4B1.2(a).
Application Note 1 to Section 4B1.2 (" Note 1" ) stated that " ‘ [c]rime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling," as well as " attempting to commit" a crime of violence. U.S.S.G. § 4B1.2 cmt. n.1.
The district court held that Molinar's prior Arizona conviction for attempted armed robbery qualified as a crime of violence, triggering the enhancement in Section 2K2.1(a)(4)(A). The resulting sentencing range was 46 to 57 months, and the district court imposed a sentence of 44 months. Without the crime of violence enhancement, Molinar's sentencing range would have been 27 to 33 months.
Molinar appealed, arguing that the district court erred in treating his Arizona conviction as a crime of violence.
We use the categorical approach to determine whether a state crime qualifies as a crime of violence for Guidelines purposes. See United States v. Rendon-Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007). Under that approach, we look " only to the fact of conviction and the statutory definition of the prior offense," not to the defendant's actions underlying the conviction. United States v. Gomez-Hernandez, 680 F.3d 1171, 1174 (9th Cir. 2012) (quoting United States v. Espinoza-Cano, 456 F.3d 1126, 1131 (9th Cir. 2006)). " State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because ‘ we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized.' " United States v. Strickland, 860 F.3d 1224, 1226-27 (9th Cir. 2017) (alterations in original) (quoting
Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013)). Applying the categorical approach here, we conclude that Arizona attempted armed robbery is a crime of violence, but for reasons different than those we relied upon in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008).
A. Effect of Johnson
on Taylor 's " Crime of Violence" Holding
We held in Taylor that Arizona attempted armed robbery was a crime of violence for Guidelines purposes. Id. at 1237-38. Based solely on the text of Arizona's armed robbery statute, we concluded that " [a]rmed robbery under...
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