A Couple of Great New Categorical Approach Cases.

January 26, 2016
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit case recognizes generic definitions of aggravated assault and attempt and finds the New Jersey statutes at issue there don’t come within those definitions.
  • Another recent Ninth Circuit case recognizes that California robbery doesn’t satisfy the “force” clause of the Armed Career Criminal Act and so doesn’t qualify as a “violent felony” under that Act.
  • The California robbery case distinguished the illegal reentry guideline but there’s a good argument it does extend to the career offender guideline.



I thought I’d post today on a couple of great new categorical approach cases that got decided a couple of months ago and that I’ve had on my list of things to post about.  The cases are United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) and United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), decided by the same panel after having been heard just a day apart.  Garcia-Jimenez held that New Jersey aggravated assault and New Jersey attempt don’t categorically meet the generic federal definitions for those offenses.  Dixon held that California robbery doesn’t qualify as a predicate for purposes of the Armed Career Criminal Act.

It’s Dixon that will have the most offense-specific impact for us – since robbery is one of the more common priors we get.  Its actual holding is that robbery doesn’t qualify as a “violent felony” under the Armed Career Criminal Act, because (1) the definition of “violent felony” in the Act doesn’t include generic robbery; (2) the potentially applicable prong of the “violent felony” definition – having “as an element the use, attempted use, or threatened use of physical force against the person” – requires that the force be used intentionally; and (3) there’s at least one California Supreme Court case upholding a robbery conviction where the use of force wasn’t intentional.  Dixon, 805 F.3d at 1196-98.  Dixon distinguished and thus left standing two prior opinions holding that California robbery does qualify as a “crime of violence” under the illegal reentry guideline, on the ground that the illegal reentry guideline’s definition of “crime of violence” expressly includes generic robbery.  See id. at 1196-97 (discussing and distinguishing United States v. Becerril-Lopez, 541 F.3d 881, 892-93 (9th Cir. 2008) and United States v. Flores-Mejia, 687 F.3d 1213, 1215-16 (9th Cir. 2012)).

The prior illegal reentry opinions shouldn’t prevent extension of Dixon to the present version of the career offender guideline, because that guideline’s definition of “crime of violence” tracks the Armed Career Criminal Act definition of “violent felony,” with the exception of limiting “burglary” to “burglary of a dwelling.”  Compare U.S.S.G. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B).  But I say that with a couple of qualifications.  The first qualification is that generic robbery is expressly mentioned in the commentary to the career offender guideline “crime of violence” definition, see U.S.S.G. § 4B1.2, comment (n.1), so one needs to make an argument that this commentary isn’t part of the definition and/or can’t control what’s in the text of the guideline.  (For samples of this argument, see the briefs in two cases presently on appeal – and a sample district court brief from our Los Angeles Federal Public Defender – which are linked here, here, and here.  The second qualification is that the career offender “crime of violence” definition changes in August, as discussed in last week’s post (see “A Breaking (Well, Almost Breaking) News Bulletin on Changes to the Career Offender ‘Crime of Violence’ Definition,” in the January 2016 link at the right), and the amended guideline will expressly include generic robbery.  But we’ll then have a new argument that the illegal reentry cases distinguished in Dixon don’t apply, as also discussed in last week’s post.

And I shouldn’t sell the offense-specific holdings in Garcia-Jimenez overly short.  Its holding on New Jersey aggravated assault may not be one we’ll use very often here in the West, but its holding on attempt could be useful.  It affirms there’s a generic federal definition of attempt – recognized in prior cases – that state attempt statutes have to be compared to.  It then goes on to analyze the New Jersey statute and expose it as an example of a statute that’s broader than the generic definition of attempt.  Combined with a prior Ninth Circuit opinion that held the Delaware attempt statute overbroad (see United States v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014), posted about in “The Right Approach to the Categorical Approach Applied to Attempt,” found in the April 2014 link at the right), this shows we need to look very carefully at any state attempt conviction.

In addition to their offense-specific impacts Dixon and Garcia-Jimenez are also helpful in clarifying, illustrating, and reaffirming some general principles about the categorical approach and what we have to do in investigating and developing potential categorical approach challenges.  That will be the subject of next week’s post.