The modified categorical approach is categorically modified in the 9th Circuit

By: Jonathan MontagJ.D.

On August 11, 2011, the 9th Circuit Court of Appeals published another en banc blockbuster, U.S. v. Aguila-Montes de Oca authored by Judge Jay Bybee. The case addresses the modified categorical approach of statutory analysis. The use of the approach arises when a court needs to figure out if a state criminal conviction fits a federal definition of say, a crime of violence or a burglary or a crime of domestic violence or sexual abuse of a minor or a drug trafficking offense, etc., but the state criminal statute includes elements that fit the definition and elements that do not, commonly referred to as a divisible statute.

For example, California Health and Safety Code § 11352(a) states:

Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport  any controlled substance … shall be punished by imprisonment in the state prison for three, four, or five years.  This one statute defines 14 different crimes:

1. every person who transports any controlled substance;

2. every person who  imports into this state any controlled substance;

3. every person who sells any controlled substance;

4. every person who furnishes any controlled substance;

5. every person who administers any controlled substance;

6. every person who gives away any controlled substance;

7. every person who offers to transport any controlled substance;

8. every person who offers to import into this state any controlled substance;

9. every person who offers to sell any controlled substance;

10. every person who offers to furnish any controlled substance;

11. every person who offers to administer any controlled substance;

12. every person who offers to or give away any controlled substance;

13 every person who or attempts to import into this state any controlled substance;

14. every person who or attempts to transport any controlled substance.

If you consider that each controlled substance on the federal controlled substance schedules is a separate offense, there are many, many more separate crimes.

Some of these crimes have big immigration and criminal sentencing consequences, such as if you have been convicted of some of these you face certain deportation or a certain substantially lengthier sentence if you are convicted any other crime. For example selling any controlled substance (#3) has dramatic effects while transporting any controlled substance (#1) does not have such dramatic effects, but caution – there are still serious consequences as a result of being convicted of #1 that should not be  overlooked.  How does a court figure out what the person was actually convicted of? Under the modified categorical approach, a court looks at limited documents referred to as the “conviction record” or, more complicatedly, “record of conviction” to find out exactly what the person pled guilty to. Such records include:

1. the statutory definition;

2. the charging document;

3. the written plea agreement;

4. the transcript of plea;

5. the plea colloquy;

6. any explicit factual finding by the trial judge to which the defendant assented;

7. Jury instructions;

8. comparable records to 1-7;

7. a clerk’s minute order.

Thus, a judge dealing with a new case and confronted with an old conviction for California Health and Safety Code § 11352 which could impact the new case, must find out which of the 14 crimes the alien committed. If the judge has a transcript of a plea colloquy from the § 11352 case where the sentencing judge asked what the client did and he said, “I sold cocaine,” the judge in the new case knows that he was convicted of #3, above, and suffers the consequences of such a conviction.

Not all cases fall into this framework. In the case of an old § 11352 conviction, the problem confronting the court in the new case is that the old case had too many elements and the court had to find which ones applied. Sometimes, the old state case has too few elements – the Missing Elements scenario. For example, one federal definition of sexual abuse of a minor (troublingly and confusingly, there are two definitions) has the following elements:

1. a mens rea (criminal intent) level of knowingly;

2. a sexual act;

3. with a minor between the ages of 12 and 16; and

4. an age difference of at least four years between the defendant and the minor.

Compare this with the elements of a California sexual abuse of a minor crime, Cal. Penal Code § 286(b)(1):

1. participates in an act of sodomy (which the statute defines)  with another person

2. who is under 18 years of age.

Missing in this crime are two elements, #1, the mens rea, and #4, the age difference required under the federal law.

Another scenario outside of the normal framework is the Broader Elements scenario where the state statute’s elements are broader than the federal one. Looking again at the federal definition of sexual abuse of a minor, compare it with another California sexual abuse crime, Cal. Penal Code § 261.5(c), which as the following elements:

1. an act of unlawful sexual intercourse;

2. with a minor (under age 18);

3. who is more than three years younger than the perpetrator.

Under California law, sex with a 17 year old by a 20 year old would be a crime while it would not be under federal law. Thus, the California law is broader than the federal definition.

Because of the constraints courts have in that they can only look at the conviction record to find out only exactly what elements a person admitted to or was found by a judge or jury to have actually commited, in a Missing Element case, the missing elements would never have to be determined. In a Broader Elements, the facts that specifically fit a federal definition would not have had to have been found. In other words, a state could would never have had to determine facts that defined the federal crime. A judge or a jury would never have to have determined if the victim was 16 or younger to have determined if the victim was under 18, nor if an age difference was four years if it was more than three years. Because these facts never had to be proved either because of a missing element or because of broader elements, these crimes could not be considered sexual abuse of a minor crimes. This does not mean a person could not be convicted of them in California. Rather, it means they did not have the collateral federal consequences for immigration and sentencing purposes. This was the holding in Estrada-Espinoza v. Mukasey.

In Aguila-Montes de Oca, the Ninth Circuit Court of Appeals tries to solve the problem of the inability of determining if the crime met the federal definition in missing and broader element cases.  To do this, the Ninth Circuit  now allows the new court to look at the judicially noticeable documents, i.e., the conviction documents, to determine:



(2) whether these facts satisfy the elements of the federal definition of the  offense.

So, in the case of sexual abuse of a minor, if the California court determined the age of the defendant and the victim to convict the defendant of Cal. Penal Code § 261.5(c), then the determination of those ages can be used to determine if the crime fits the federal definition. Thus, if the state court judge determined that the victim was 15 and the defendant 21, the defendant would have met all the elements of the federal sexual abuse of a minor crime even though he never specifically was found guilty of those elements. Similarly, if a state court judge determined, for some reason necessary for a conviction, that the defendant knew (had the mens rea) his partner was a minor, he could be found to have committed the federal sexual abuse of a minor crime even if the knowledge element was not part of the state crime.

There was a dissent in the case. It argued that this new modified categorical test is contrary to Supreme Court precedent and all other circuit court precedents and the majority’s assertion that it was not contrary to binding precedent and persuasive authority was a tortured reading of those cases. The dissent also pointed out huge evidentiary and fairness issues in looking for proof of elements that are not elements on which the defendant was found guilty. For example, if a person was willing to plead guilty of a sexual abuse of a minor crime and the judge made an erroneous statement about an age, the defendant would have no incentive to challenge a judicial “finding” of the proper age discrepancy existing for the state crime as it was immaterial to the crime for which he or she was convicted. The defendant might not want to bother to correct the record about an immaterial element.

I believe it is fair to say that many judges on the Court of Appeals were troubled by the outcome in the sexual abuse case, Estrada-Espinoza, and have been working towards finding a way of overturning it. In cases like Aguilar-Turcios v. Holder, United States v. Medina-Villa, and United States v. Farmer, courts have been critical of Estrada-Espinoza. More generally regarding child sexual abuse crimes, the author of Aguila-Montes de Oca, Judge Bybee, has shown opposition to decisions one might characterize (admittedly overbroadly) as soft on child sexual abuse crimes, such as Aguilar-Turcios and Nicanor-Romero v. Mukasey (Spelled wrong in the 9th Circuit online index). To the extent that Aguila-Montes de Oca does away with an escape hatch for people with missing elements or broader elements cases, many of which are sexual abuse cases, Judge Bybee is succeeding in his struggle. Now we will see if this case will go to the full court and/or to the Supreme Court.

For those keeping score, here is how the judges ruled in this case (6 to 5):

Majority (favoring the new modified categorical approach)

Judge Bybee

Judge Rymer

Judge Silverman

Judge Gould

Judge Rawlinson

Judge Callahan

Dissent (dissenting from adopting a new modified categorical approach)

Judge Berzon

Judge Kozinski

Judge Fletcher

Judge M. Smith

Judge N.R. Smith

It should be noted that the case was specifically about whether California burglary fit the federal definition of burglary. Earlier court of appeals decisions, such as Rodriguez-Rodriguez, said it nearly always fit the federal definition. The Aguila-Montes de Oca case overturned that decision. Four judges, Judge Silverman, Judge Gould, Judge Rawlinson, Judge Callahan, disagreed with that aspect of the case. Posted August 14, 2011.


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