Rendon v. Holder

• Decision Date: 02 April 2015
• Docket Number: No. 10–72239.,10–72239.
• Citation: 782 F.3d 466 (Mem)
• Parties: Carlos Alberto RENDON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

782 F.3d 466 (Mem)

Carlos Alberto RENDON, Petitioner

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–72239.

United States Court of Appeals, Ninth Circuit.

April 2, 2015.

Brigit Greeson Alvarez, Esquire, Law Office of Brigit G. Alvarez, Los Angeles, CA, for Petitioner.

Gary J. Newkirk, Trial, OIL, Bryan Stuart Beier, Senior Litigation Counsel, DOJ–U.S. Department of Justice, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Agency No. A092–080–719.

Before: STEPHEN REINHARDT, RAYMOND C. FISHER, and MARY H. MURGUIA, Circuit Judges.

Dissent by Judge GRABER

; Dissent by Judge KOZINSKI.

ORDER

The panel has voted to deny the petition for panel rehearing.

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R.App. P. 35. The sua sponte en banc call is rejected.

Judge Kozinski's dissent from denial of rehearing en banc and Judge Graber's dissent from denial of rehearing en banc are filed concurrently with this Order.

GRABER, Circuit Judge, with whom O'SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I respectfully but emphatically dissent from the denial of rehearing en banc. When applying the modified categorical approach, what must we do when we confront a textually disjunctive statute and are uncertain which statutory alternative underlies a previous conviction? The Supreme Court has answered that question in no uncertain terms: in the face of a disjunctive statute, we consult the documents of conviction, also known as the “Shepard documents,” to learn whether what the jury actually found, or what the defendant actually pleaded to, matches the federal definition of the relevant crime. The Court even told us what not to do: we need not parse state law to determine whether the statutory alternatives are “elements” or “means”; rather, we look to the Shepard documents whether the alternatives are elements or means. The panel's opinion simply ignores, without explanation, the Court's clear command. Remarkably, the opinion holds that we must do precisely what the Court instructed us not to do: parse state law to determine whether the statutory alternatives are elements or means. I regret our decision not to rehear this case en banc in order to respect our role as an intermediate appellate court that must follow the Supreme Court's instructions.

A. The Court Expressly Rejected Rendon's Approach

Petitioner Carlos Alberto Rendon was convicted of burglary as defined by California Penal Code section 459 : “Every person who enters [certain locations] with intent to commit grand or petit larceny or any felony is guilty of burglary.” The inquiry in this case hinges on intent: “intent to commit ... larceny or any felony.” Id. (emphasis added). Everyone agrees that, if Petitioner was convicted of entering with intent to commit larceny, then the conviction meets the requisite intent element under the relevant immigration provision but that, if Petitioner was convicted of entering with intent to commit some other felony, such as arson, then the conviction does not meet the requisite intent element under the relevant immigration provision. Rendon v. Holder, 764 F.3d 1077, 1084 (9th Cir.2014)

Analyzing the Supreme Court's decision in Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), Rendon holds that, for textually disjunctive statutes, we may look to the Shepard documents only if the alternatives are elements, such that the statute describes separate crimes; we may not look to the Shepard documents if the statute lists only alternative means of committing the same crime. Rendon, 764 F.3d at 1084–85. To make the elements/means determination, Rendon requires that we analyze state law to determine whether the disjunctive alternatives require juror unanimity. Id. at 1088–90

The Supreme Court expressly and unambiguously rejected that approach in Descamps. Descamps involved a conviction under the same California burglary statute. 133 S.Ct. at 2282. In the body of the opinion, the Court considered whether we may examine the Shepard documents to determine whether the entry was lawful. Id. at 2283–93. By contrast to the statutory list of alternative intents, the text of the statute says nothing about the lawfulness of the entry; it merely states: “Every person who enters....” Cal.Penal Code § 459. The Court held that, for facts that lack a statutory hook (such as the lawfulness of the entry), courts may not look to the Shepard documents unless the fact is an element of the crime, requiring juror unanimity. Descamps, 133 S.Ct. at 2285–86.

But the Court held that a different rule applies if the text of the statute contains a list of alternatives. Writing in dissent, Justice Alito used the methodology now mandated by Rendon: he examined the state statutes at issue in the Court's previous modified-categorical-approach cases—statutes with an express list of alternatives in the statutory text. Descamps, 133 S.Ct. at 2297–98 & n. 2 (Alito, J., dissenting). He reviewed state court decisions concerning juror unanimity—just as Rendon now instructs—and discovered that the state courts might not require juror unanimity with respect to at least two of the statutes in the earlier cases; in the abstract, those statutes likely described alternative means, not alternative elements. Id. Justice Alito then argued that the majority's analysis—at least as he understood it—contradicted the Court's earlier cases. Id.

The Descamps majority's response is key, so I repeat it here in full:

The dissent delves into the nuances of various States' laws in an effort to cast doubt on this understanding of our prior holdings, arguing that we used the modified categorical approach in cases like Taylor, Shepard, and Johnson “in relation to statutes that may not have been divisible” in the way that we have just described. Post, at 2297 (ALITO, J.). But if, as the dissent claims, the state laws at issue in those cases set out “merely alternative means, not alternative elements” of an offense, post, at 2298, that is news to us. And more important, it would have been news to the Taylor, Shepard, and Johnson Courts: All those decisions rested on the explicit premise that the laws “contained statutory phrases that cover several different crimes,” not several different methods of committing one offense. Johnson, 559 U.S., at 144, 130 S.Ct. 1265 (citing Nijhawan [v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ] ). And if the dissent's real point is that distinguishing between “alternative elements” and “alternative means” is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved inTaylor andShepard —i.e. , indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime's elements.So a court need not parse state law in the way the dissent suggests:When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.

Descamps, 133 S.Ct. at 2285 n. 2 (majority op.) (brackets and ellipsis omitted) (boldface type emphases added).

The Descamps majority could not have been plainer. When there is no statutory list, it is critical whether a fact is an element of the crime. But the elements/means distinction is not relevant if the statute lists alternatives: “Whatever a statute lists (whether elements or means ),” courts should consider “the documents we approved in Taylor and Shepard. ” Id. (emphasis added). “So a court need not parse state law in the way the dissent [, and now the Rendon panel opinion,] suggests.” Id. “When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.” Id. (emphasis added). In other words, it does not matter whether, in the abstract, the statutory phrases describe elements or means; what matters is only what the Shepard documents in that particular case say. We “need not” look to state court cases; we “merely”—that is, only —look to the Shepard documents. Id.

In scores of cases, we and our sister circuits have applied that simple instruction and have looked to the Shepard documents whenever confronted with a textually disjunctive statute.¹ That approach is clearly correct: it is not our job, as an intermediate appellate court, to overrule the Supreme Court's plain and applicable pronouncements, whether brilliantly or poorly reasoned. Indeed, the Supreme Court repeatedly has held that we must follow its holdings unless and until the Supreme Court itself overrules them. See United States v. Hatter, 532 U.S. 557, 567, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001) (“The Court of Appeals was correct in applying [existing precedent] to the instant case, given that ‘it is this Court's prerogative alone to overrule one of its precedents.’ ” (quoting State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) )); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“We reaffirm that ‘if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ ” (brackets omitted) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) )). There is no authority for the proposition that we may ignore part of an opinion if we have doubts about its correctness or wisdom. No further inquiry or analysis is required or permitted: when the...