Bad Cases Be Gone!

May 12, 2015
By Hanging Out with Carl Gunn


  • The limits on how court records can be used under the modified categorical approach that are recognized in the Marcia-Acosta and Sahagun-Gallegos cases discussed in last week’s post suggest prior Ninth Circuit cases permitting broader use aren’t good law after Descamps.
  • The cases which may no longer be good law include cases like United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008), which allow the use of police reports and other documents often stipulated to as the factual basis in California state court pleas.
  • Using these documents is inconsistent with Marcia-Acosta and Sahagun-Gallegos because (a) the defendant usually hasn’t personally assented to any particular facts contained in the documents and (b) the documents don’t identify elements as opposed to facts.



In last week’s post discussing the cases of United States v. Marcia-Acosta, 780 F.3d 1244 (9th Cir. 2015), and United States v. Sahagun-Gallegos, 782 F.3d 1094 (9th Cir. 2015) (yes, Sahagun-Gallegos has an F.3d cite now), I also noted my very first post on Descamps.  That post suggested Descamps created new limits – or, perhaps more accurately, clarified the limits – on not just when court records could be used under the modified categorical approach, but also how they could be used.  But another thing I suggested in that first post is that Descamps’ creation or clarification of these limits raised doubt about the viability of prior Ninth Circuit cases that had been overly liberal in their view of the records which can be used.  (See “The Rest of My Own Little Supreme Court Update” in the July 2013 link at the right.)

Marcia-Acosta actually expressly recognized this as to one prior Ninth Circuit case.  One of the cases the government cited in Marcia-Acosta was United States v. Smith, 390 F.3d 661 (9th Cir. 2004), amended, 405 F.3d 726 (9th Cir. 2005).  In Smith, the court had relied on a statement made by a prosecutor during a plea hearing that a burglary defendant had “unlawfully” entered “a dwelling.”  Marcia-Acosta, 780 F.3d at 1253 (quoting Smith, 390 F.3d at 663, 665).  Marcia-Acosta held this was “the very type of ‘fact-based’ analysis that Descamps proscribes” and Smith “therefore is ‘clearly irreconcilable’ with Descamps, and is no longer controlling.”  Marcia-Acosta, 780 F.3d at 1254 (quoting Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc)).  (Recall the Miller v. Gammie “clearly irreconcilable” test for overruling prior Ninth Circuit precedent based on intervening Supreme Court case law that I’ve mentioned in prior posts; see, for example, the post titled, “What Fury Hath Descamps Wrought?” in the August 2013 link at the right or the post titled, “Who Gets to Decide When Two or Three Convictions Are Just One?” in the February 2015 link at the right.)

There’s also another Ninth Circuit case – or line of cases – that I think we can argue are “clearly irreconcilable” with Descamps as explained and applied in Marcia-Acosta and Sahagun-Gallegos.  That’s a case (which I actually mentioned in the first Descamps post) called United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008) – and the cases it follows.  Almazan-Becerra held a court could consider a set of police reports which a defense attorney stipulated could be considered as a factual basis for the plea.  See id. at 1098-99.  It followed two other cases which held courts could consider (1) statements in a defense motion to which the defense attorney had stipulated as a factual basis and (2) a police report incorporated into a criminal complaint to which the defense attorney had stipulated as a factual basis.  See id. at 1097-98 (citing and discussing United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006) and United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005)).

These cases seem clearly irreconcilable with Descamps, at least as explained and applied in Marcia-Acosta and Sahagun-Gallegos.  To begin, there was no assent by the defendant as required by Sahagun-Gallegos.  The court rejected reliance on the detective testimony reflected in the grand jury transcript in Sahagun-Gallegos because – to use just the court’s first reason – “there is no indication in the plea hearing transcript that [the defendant] assented to the factual basis provided by his attorney, much less to the police detective’s testimony,” Id., 782 F.3d at 1100.  (For more detail on this, see last week’s post.)  The same appears to have been true in Almazan-Becerra and the cases it follows.  The defendants didn’t assent to the general stipulation to the use of the police reports and/or motion, much less the particular statements within the reports and/or motion that the court and government relied upon.

A hypothetical posed in Marcia-Acosta also illustrates the irreconcilability of Almazan-Becerra with Descamps.

[R]elying on [the defense attorney’s] statement that [the defendant] committed the assault “intentionally” is no different than relying on a statement to the same effect made by a defendant while on the stand during trial.  The latter approach is clearly foreclosed by Descamps as an impermissible “look behind [the defendant’s] conviction in search of record evidence that he actually committed the generic offense.”  Id. at 2293.  In the trial context, the government would be required to prove that the jury necessarily found that [the defendant] had committed a crime intentionally or knowingly, rather than recklessly; demonstrating that there was testimony to that effect would not suffice.  That [the defense attorney] made a statement concerning [the defendant’s] mens rea as part of the factual basis during the plea colloquy rather than at trial does not convert an improper fact-based inquiry into an elements-based one.

Marcia-Acosta, 780 F.3d at 1253 (emphasis in original).  Similarly, that a defense attorney made a statement in a motion or that a police officer made a statement in a report to which the defense attorney generally stipulated as a factual basis does not convert a fact-based inquiry into an element-based one.

So it looks like Almazan-Becerra and the cases it followed – and any others out there like them – are ripe for attack.  Go to it.