A Prediction Come True (Well, a Little Bit Anyway)

July 14, 2014
By Hanging Out with Carl Gunn


  • In the recent case of United States v. Aguilera-Rios, the Ninth Circuit reaffirmed its rejection of the argument that all affirmative defenses have to be considered in comparing statutes under the categorical approach and heldMoncrieffe v. Holder doesn’t require a different result.
  • But Moncrieffe does require consideration of what the court called “definitional elements” – or exceptions built into definitions of elements – in the categorical approach.
  • You can use Aguilera-Rios for both the case’s specific holding that the exclusion of antique firearms from the federal felon in possession statute is part of the definition of the elements of that firearms offense and the case’s general holding that what the court called “definitional elements” have to be considered, even when the burden of proof on the fact is on the defendant.


A few weeks ago, a Ninth Circuit case came down that addressed an issue I discussed in a post last year about the potential impact of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). (See “It’s Not Just Differences in Elements You Need to Consider in Applying the Categorical Approach: Think About Differences in Sentencing Factors and Affirmative Defenses as Well” in the May 2013 link at the right.) That post discussed the potential impact of Moncrieffe on several Ninth Circuit cases – Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011); United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010); and United States v. Charles, 581 F.3d 927, 963 (9th Cir. 2009) – holding that the categorical approach requires comparison of only the elements of the offense, and that differences in affirmative defenses are irrelevant. The post pointed to language and analysis inMoncrieffe that could be read to be clearly irreconcilable with these cases and suggested arguing they are no longer good law after Moncrieffe.

In the case that came down a few weeks ago, the Ninth Circuit rejected that main argument, but did come partway, by holding one of the prior cases – the Gil case – was clearly irreconcilable with Moncrieffe and so no longer good law. The case is United States v. Aguilera-Rios, ___ F.3d ___, No. 12-50597, 2014 WL 2723766 (9th Cir. June 17, 2014). On the bad side of the coin, the court reaffirmed the general holding in Gil – and the other cases – that “in conducting the categorical analysis, we do not consider the availability of affirmative defenses; the fact that there may be an affirmative defense under the federal statute, but not under the state statute of conviction, does not mean that the state conviction does not fall categorically within the federal statute.” Aguilera-Rios, 2014 WL 2723766, at *6 (quoting Gil, 651 F.3d at 1005). Following an earlier opinion issued in April, the court opined that “[t]hat general holding is still valid afterMoncrieffe, as the [Supreme] Court’s ‘decision said nothing about affirmative defenses.’” Aguilera-Rios, 2014 WL 2723766, at *6 (quoting United States v. Albino-Loe, 747 F.3d 1206, 1212 (9th Cir. 2014)).

But on the good side of the coin, the court overruled Gil’s specific holding – that the “antique firearm” exception in the federal definition of “firearm” used for the federal felon in possession statute is an “affirmative defense” that cannot be considered in applying the categorical approach. The court held that this holding was no longer good law because it, unlike the more general holding about affirmative defenses, is clearly irreconcilable with Moncrieffe. The court explained that “Moncrieffe clarified that a definitional element of a criminal offense, like the antique firearms exception, must be considered for purposes of the categorical approach, even if affirmative defenses are not.” Aguilera-Rios, 2014 WL 2723766, at *8. The court also noted that “Moncrieffe further clarified that these definitional elements must be considered regardless of which party would bear the burden of proof in a criminal prosecution.”Id. (emphasis in original). The court then concluded that “to the extent that Gil relied on the fact that, in a federal criminal prosecution, a defendant would be required to prove that the firearm was an antique (citation omitted), it has been overruled by Moncrieffe.” Id.

Aguilera-Rios also establishes the more general proposition that exceptions within the definition of an element, or what it called “definitional elements,” are different than affirmative defenses and so do need to be considered in the categorical approach. This is true even if they are treated differently than elements in the form of a burden of proof placed on the defendant.

Aguilera-Rios therefore gives us two holdings to consider in our categorical approach challenges to prior convictions. There’s the specific holding that the “antique firearms” exception is part of the federal felon in possession offense; this means state felon in possession convictions can’t be considered if the state applies its statute to firearms that would be excluded by the federal “antique firearms” exception. Then there’s the general holding that exceptions written into definitional provisions aren’t affirmative defenses, even when the burden of proving them is on the defendant.

This in turn gives you two things to do in considering your client’s prior convictions. First, in any case where you have a state firearms conviction, look at your state firearms statute and its definition of “firearm” to see if it includes anything that would qualify as an “antique firearm” in the federal statutory definition. Second, and more generally, look for ways to characterize what the state may have labeled as “affirmative defenses” as instead “exceptions” to an element, or “definitional elements.”

Finally, don’t give up completely on the more general argument suggested in last year’s post – that affirmative defenses have to be considered as well. That’s at least a plausible reading ofMoncrieffe that should be preserved for possible Supreme Court review – either for a cert petition in your case or in the event the Supreme Court decides the issue favorably in another case.