BLOG BULLETS: The California statutes governing sale of drugs are overbroad for purposes of the categorical approach because they include transportation for personal use in addition to sale. The transportation/sale element isn’t divisible underDescamps because a jury doesn’t have to unanimously agree on whether the defendant sold or transported. So the modified categorical approach can’t […]

BLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]

BLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]

BLOG BULLETS: The California and Nevada burglary statutes have already been held non-divisible under Descamps and thus not subject to the modified categorical approach. Case law has interpreted the Arizona burglary statute to be like the Nevada and California statutes, so it should be found to be non-divisible for the same reasons. There are good […]

BLOG BULLETS: Remember that just a listing of alternatives isn’t what makes a statute “divisible” under Descamps. The list has to be a list of alternative elements that creates different offenses, not a list of alternative means of committing a single offense. A recent Fourth Circuit case affirmed this reading ofDescamps. NOW THE BLOG: In […]

BLOG BULLETS: For now, conspiracy to commit a “violent felony” is also itself a “violent felony” under the Armed Career Criminal Act. But a Ninth Circuit panel has described this holding as “illogical” and “questionable” in light of Supreme Court precedent. A petition for rehearing en banc is now pending, with a government response ordered, […]

BLOG BULLETS: The crime of attempt, like conspiracy, is defined differently in different jurisdictions, so check your state’s definition against the generic definition. There’s also an argument that the generic definition recognizes the defense of “abandonment,” or “renunciation,” so check whether your state fails to recognize that defense. There’s two bad cases holding California attempt […]

BLOG BULLETS: A recent Ninth Circuit case has held that the generic definition of “conspiracy” for purposes of applying the categorical approach to a federal enhancement statute requires both an agreement and an overt act. This excludes Nevada conspiracy, because it doesn’t require an overt act. The case also provides a nice guide to factors […]

BLOG BULLETS: The Department of Justice is supporting the proposed amendment to the drug guideline reducing base offense levels by 2 levels. The Department has directed prosecutors not to oppose requests to reduce offense levels in sentencings even now, before the new guideline takes effect. The Department’s written comments and testimony by the Attorney General […]

BLOG BULLETS: The rule that the fruits of a court-ordered mental health examination can’t be used against a defendant unless he opens the door by presenting mental health evidence apply to court-ordered competency evaluations just like other court-ordered mental health examinations. To make sure your client can assert this protection, make any competency examination be […]