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Two cases came down this week from the Ninth Circuit and both held that robbery is categorically not a crime of violence. However, California robbery (at least) is likely still an aggravated felony theft offense under INA § 101(a)(43)(G). Pena-Rojas v. Sessions, 724 F. App’x 622, 623 (9th Cir. 2018). If your client decides to enter a plea to robbery, try to get a 364-day sentence to avoid an aggravated felony. Nothing came down from the BIA or from the Attorney General (for which I am grateful).
I would like to give a special thank you to Bruce Nestor who alerted me to a mistake in my last blog. Here’s the correction: the stop-time rule for lawful permanent resident cancellation (240A(a)) only applies to the residency requirement and does not apply to the five-year lawful permanent residence requirement. Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006). So, a noncitizen who enters the U.S. on an F, then changes status to an H-1b, ten years later adjusts status, and one year after that is convicted of a crime involving moral turpitude or domestic violence, is still statutorily eligible for cancellation of removal for lawful permanent residents. Thank you, Bruce, for alerting me to that nuance! Now on to the cases.
Ninth Circuit
Cal. Penal Code § 211 (Robbery) is Categorically Not a Crime of Violence
In order to understand the two cases that came down, we need to go back to the definition of an aggravated felony crime of violence. According to the INA an aggravated felony crime of violence is a crime of violence as defined under 18 U.S.C. § 16. Here’s the entire statute:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16. The Supreme Court held that § 16(b) is unconstitutionally vague and a conviction deemed to be an aggravated felony crime of violence under § 16(b) is categorically not a crime of violence. Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204, 1212 (2018). A conviction under § 16(a) is still a crime of violence. However, because nothing is ever simple, to be a crime of violence under 18 U.S.C. § 16(a) “the “physical force” used must be “violent force,” or “force capable of causing physical pain or injury to another.” Johnson v. United States, 559 U.S. 133, 140 (2010). Moreover, the force used must be intentional, not just reckless or negligent. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006).
After Dimaya, the Ninth Circuit reconsidered whether Cal. Penal Code § 211 (robbery) was categorically a crime of violence. Because 16(b) is unconstitutionally vague, for California robbery to be a crime of violence, it must fall under the definition of 16(a). The Ninth Circuit found that it could not fall under 16(a) because a person can commit California robbery “by accidentally using force.” United States v. Garcia-Lopez, No.15-50366 slip op at *11, quoting United States v. Dixon, 805 F.3d at 1193, 1197 (9th Cir. 2015). Which brings us to the interesting question which I am not even going to attempt to answer; how does a person accidentally use force?
Antonio Garcia-Lopez is a native of Mexico. In 2001, Mr. Garcia-Lopez entered the United States without inspection. In 2010, he was convicted of Cal. Penal Code § 211 (robbery) and served a year in jail. ICE placed him in expedited removal proceedings based on his aggravated felony conviction as a crime of violence and on April 15, 2011, he was removed from the United States. Mr. Garcia-Lopez immediately reentered the United States, and on April 28, 2011, he was removed again pursuant to the April 15, 2011 order. On February 14, 2014, federal authorities found him in Los Angeles. On May 16, 2014, he was charged with violating 8 U.S.C. § 1326(a) and (b)(2) for illegal reentry after having been convicted of an aggravated felony. Mr. Garcia-Lopez pleaded guilty and on August 4, 2015, the court sentenced him to thirty-months imprisonment and three years of supervised release. After Sessions v. Dimaya, Mr. Garcia-Lopez filed a motion to withdraw his plea arguing that Cal. Penal Code § 211 was not a crime of violence. The Ninth Circuit agreed and allowed him to withdraw his plea. Judge Tallman concurred in the result and but pleaded with Congress to change the law “to create a more reasonable, consistent, and functional standard from removing violent criminals from our country.” Garcia-Lopez, slip op. at *18 (Tallman, J. concurring). From what I’ve been reading, it sounds like at least the House of Representatives is trying to do just that.
United States v. Garcia-Lopez, No. 15-50366 (9th Cir. Sept. 7, 2018).
Washington Robbery is Not a Crime of Violence
In a non-immigration case the Ninth Circuit held that a Washington conviction for first degree robbery is categorically not a crime of violence for purposes of sentencing enhancements. On August 14, 2015, Kevin Peterson was arrested on outstanding warrants. When he was arrested he was carrying a backpack and inside the backpack the police found a stolen handgun. Mr. Peterson had a previous conviction for first degree robbery. On January 19, 2017, the district court found Mr. Peterson guilty of being a felon in possession of a firearm and found that his previous conviction for first-degree robbery was a crime of violence under the sentencing guidelines. Mr. Peterson appealed the sentencing recommendations arguing that Washington robbery was categorically not a crime of violence.
The Ninth Circuit agreed with Mr. Peterson. They found that because Washington robbery encompasses threats to property and federal generic robbery excludes threats that are limited to property it was not a match. They cited to their recent decision holding that California robbery is not a categorical match under the new definition of a crime of violence for sentencing purposes and expanded it to include Washington robbery. United States v. Bankston, __ F.3d __, 2018 WL 4016853 at *3 (9th Cir. Aug. 23, 2018).
The good news, for right now, is that robbery (at least in California and Washington) is not an aggravated felony crime of violence but, it’s still likely an aggravated felony theft offense. So, try to get a sentence of 364 days or fewer.
United States v. Peterson, No. 17-30084 (9th Cir. Sept. 4, 2018).