Some Last Thoughts on the Categorical Approach — From a Guest

April 24, 2012
By Hanging Out with Carl Gunn

This week, we have a guest blogger – Deputy Federal Public Defender Sam Josephs. Sam clerked for both District Judge William Pauley in New York and Ninth Circuit Judge M. Smith. Sam had the good sense to choose California over New York and has been a deputy with the Federal Public Defender in Los Angeles since September, 2010. He was the recipient of the “Hanging out with Carl Gunn” e-mail that led to the title of this blog, as described in the lefthand column. He has a particular interest in categorical approach and related sentencing enhancement issues.


  • Litigate even issues that seem foreclosed because law in this area changes often
  • Ninth Circuit has overruled its prior decisions on numerous occasions based on change in the law
  • Supreme Court has been active in this area so watch for circuit splits


Carl’s examples illustrate the type of creative arguments that have prevailed in a number of cases. Those arguments have resulted in opinions excluding certain offenses, at least under the categorical approach, from consideration under the Armed Career Criminal Act, career offender guideline, illegal reentry guideline, and various immigration law provisions.

But there’s been so much change in the law over the last three or four years, it’s important to continue to litigate these issues, even if the Ninth Circuit has seemingly foreclosed them.

Here’s an example: In United States v. Terrell, 593 F.3d 1084, 1089-90 (9th Cir. 2010), the court held that Arizona’s version of sexual assault qualifies as a “violent felony” under the so-called “residual clause” of the Armed Career Criminal Act, allowing a prior sexual assault conviction to trigger the fifteen-year mandatory minimum sentencing enhancement. The residual clause, also found in the career offender provision of the Guidelines, defines as a “violent felony” or “crime of violence” an offense that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a). The Arizona statute defines sexual assault to include situations in which there is no force or threat of force used — such as instances in which the victim is incapable of consenting to sexual conduct because of mental disorder, drugs, or “other similar impairments known to the defendant.” Terrell, 593 F.3d at 1089. In finding the offense qualifies as a “violent felony,” the court compared the Arizona law to simple rape, reasoning that the “typical” rape case involves violence and aggression.

Judge M. Smith wrote a persuasive dissent from the denial of rehearing en banc in Terrell, joined by Chief Judge Kozinski, and Judges Pregerson and Reinhardt. See United States v. Terrell, 621 F.3d 1154 (9th Cir. 2010). The dissenting judges pointed out that, in addition to qualifying as a “violent felony” under the Armed Career Criminal Act, Terrell probably means that a sexual assault offense also qualifies as a “forcible sex offense[ ]”, and thus a “crime of violence” under the career offender guideline, even if it does not require any force. See id. at 1160-61. Note that the Terrell panel opinion doesn’t expressly consider whether a sexual assault offense not requiring force is a “crime of violence” for career offender purposes, so defense attorneys should still be challenging those priors, perhaps making many of the same arguments raised by Judge M. Smith in his dissent.

The dissent’s argument also provides a good road map for challenging Terrell’s holding with respect to the Armed Career Criminal Act. For example, the dissent points out that inChambers v. United States, 555 U.S. 122 (2009), the Court required that the government point to more than a few examples in order to show that the “typical” set of facts underlying a particular offense “involves conduct that presents a serious potential risk of physical injury to another.” Defense attorneys should be citing to this aspect of Chambers, and arguing that the burden is on the government to prove the “typical” case.

Defense attorneys should also look to out-of-circuit cases that have interpreted the more recent Supreme Court decisions —Begay, Chambers, Johnson, and Sykes — as a way of litigating issues that may seem foreclosed under older circuit precedent. The Ninth Circuit has certainly been willing to reconsider its prior opinions in light of intervening case law in other instances; see as one example the en banc decision in Ruiz-Fernandez, 466 F.3d 1121 (9th Cir. 2006) (en banc) and cases applying and extending it outside its particular facts. One case from another circuit that has done this specifically with rape is United States v. Owens, 672 F.3d 966 (11th Cir. 2012). In that case, the court overruled prior circuit case law, and held that neither second degree rape nor second degree sodomy under Alabama law qualify as a “violent felony” under the Armed Career Criminal Act.

The second degree rape statute at issue in Owens is strikingly similar to the sexual assault statute addressed in Terrell — both require only slight penetration, and lack of consent is defined to include mental incapacity. It could provide an avenue to seek en banc review — or perhaps certiorari — based on a split in the circuits. Remember Carl’s point in his first post on the categorical approach (see “Recent Posts” in the righthand column) that this is an area in which the Supreme Court has taken a number of cases.