Rendon Remains Standing

April 14, 2015
By Hanging Out with Carl Gunn


  • A petition for rehearing en banc that’s been pending in Rendon v. Holder has been denied.
  • Still, there’s a lengthy dissent by Judge Graber arguing that Rendon is wrong.
  • Judge Graber’s dissent can be challenged as (1) reading too much into a footnote in Descamps; (2) simplifying the problem for trial convictions where there are jury instructions and overlooking the far more common guilty plea conviction where there aren’t jury instructions; and (3) exaggerating the other policy concerns she raises.



For those of you who knew about it – and even more for those of you who were worried about it – I thought I’d put up a post about a petition for rehearing en banc that’s been pending in the Rendon v. Holder case (764 F.3d 1077 (9th Cir. 2014)) which I discussed in a post last October.  (See “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right.)  You’ll recall that the holding in Rendon was that a statute containing a list of alternatives is divisible under Descamps only if a jury has to unanimously agree on which alternative is true.  The good news is that the petition for rehearing en banc in Rendon was just recently denied.

The order denying rehearing was accompanied by two dissents, however.  One was a very lengthy dissent by Judge Graber, see Rendon v. Holder, ___ F.3d ___, 2015 WL 1474921 (9th Cir. April 2, 2015), which I think is worth discussing for two reasons.  First, just for the intellectual exercise (though those of you in circuits without controlling authority may have the dissent pointed out and then need to respond to it), and, second, for an attack on the California drug statutes that the dissent suggests is worth continuing, at least for now.

Judge Graber’s dissent relies largely on a footnote in Descamps v. United States, 133 S. Ct. 2276 (2013), which is the opinion Rendon interpreted and applied.  That footnote reads:

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 Taylor[ v. United States, 495 U.S. 575 (1990)], Shepard[ v. United States, 544 U.S. 13 (2005)], and Johnson[ v. United States, 559 U.S. 133 (2010)] “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 “contain[ed] statutory phrases that cover several different . . . crimes,” not several different methods of committing one offense.  (Citations omitted.)  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 in Taylor and Shepard – 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, quoted in Rendon, 2015 WL 1474921, at *2 (emphasis added by Judge Graber).

I have to confess the language in this footnote seems far more ambiguous to me than Judge Graber suggests. It does disclaim the need to “parse state law,” but it also refers at multiple points to “elements,” including in the text Judge Graber emphasizes.  And Judge Graber’s position is problematic for multiple other reasons.  First, it creates a problematic distinction between statutes which list alternative means (as opposed to elements) and those which don’t list the alternative means; she would allow a court to use the modified categorical approach for the former, but not use it for the latter.  Second, it ignores the limits and rationales for the modified categorical approach which Descamps emphasized in the non-footnote text.  Those are that (1) the modified categorical approach is merely another version of the categorical approach to be used when a single statute includes multiple offenses, see Descamps, 133 S. Ct. at 2285; (2) it must avoid creating Sixth Amendment problems by making sure the Sixth Amendment’s jury unanimity requirement was respected (see another post, “More on Descamps,” in the September 2013 link at the right for multiple ways in which the Descamps opinion emphasizes this); and (3) it must retain the categorical approach’s focus on the crime the defendant was “convicted” of, not the crime he “committed,” see Descamps, 133 S. Ct. at 2285, 2287; see also Taylor, 495 U.S. at 600.

Judge Graber does make a couple of other policy and/or practice points in support of her argument.  One is a suggestion that the jury instructions in most trial cases will have narrowed the alternatives in the statutory list down to a single one, so the jury will have unanimously found that single alternative, and in cases where there wasn’t such narrowing, the modified categorical approach wouldn’t have any impact anyway.  See Rendon, 2015 WL 1474921, at *4.  But, first, this ignores guilty plea convictions, where there are far more gradations in the record than the “yes or no” of whether there were jury instructions requiring unanimity.  (See, as an example, United States v. Murcia-Acosta, ___ F.3d ___, 2015 WL 1283771 (9th Cir. March 23, 2015), where the court had to consider whether a defense attorney statement of the factual basis was enough.)  Second, Judge Graber may be setting up a straw man with the example she uses, which is the type of drug in a California drug case.  See Rendon, 2015 WL 1474921, at *4 (asserting that jury will usually have been instructed it must unanimously find “cocaine,” and the instructions will be insufficient if it was instructed it need find only a “controlled substance” or “cocaine or khat”).  It may be unusual that the jury will be told they can find either of two different drugs, but it might not be unusual for them to be told they can find either of two different types of conduct, such as either sale or transportation.  (For a discussion of California statutes’ inclusion of both of these types of conduct and the potential for a challenge to divisibility based on that, see another Descamps post – “Another Descamps Angle on a California Drug Statute” – in the May 2014 link at the right.)

Judge Graber also expresses concern about having to “delve into the nuances of a seemingly endless variety of state laws in order to determine whether, in the abstract, a jury must unanimously agree as to which statutory alternative the defendant committed.”  Rendon, 2015 WL 1474921, at *5.  But that train’s already left the station.  We already “delve into the nuances” of state law in determining the substantive scope of state statutes.  Judge Graber asserts that determining state law on jury unanimity is “a notoriously uncertain inquiry,” Rendon, 2015 WL 1474921, at *5, but determining the scope of state statutes can also be a highly nuanced and difficult task.  See, e.g., James v. United States, 550 U.S. 192, 204-06 & nn.3,4 (2007) (acknowledging state case law establishing differing scope of attempted burglary statutes in different states).  Jury unanimity questions may actually be easier to answer at times, because there may be pattern jury instructions to look to.

For us in the Ninth Circuit – and the Fourth (see the case of United States v. Royal, 731 F.3d 333 (4th Cir. 2013), that’s cited in Rendon and discussed in another prior post, “More on What’s a Divisible Statute Under Descamps,” which can be found in the April 2014 link at the right) – the foregoing discussion is largely an intellectual exercise.  But for those of you in other circuits, it’s more than an intellectual exercise, because your circuits will have to decide whether to follow the analysis of the panel opinion in Rendon or the analysis suggested in Judge Graber’s dissent.  At least you’ve got controlling precedent in two circuits to start with.

And for those in our circuit, I’ll have some more thoughts in next week’s post – on what Judge Graber’s dissent suggests about continuing an attack on the California drug statutes.  That post will hopefully be more than an intellectual exercise.