Solicitor General Endorses View that UUV Is Not an Aggravated Felony, Seeks GVR In Serna-Guerra

Long-time readers of this blog, as well as those of you who handle immigration and illegal reentry cases, are familiar with the Fifth Circuit's frustrating adherence to its view that unauthorized use of a vehicle is an aggravated felony, notwithstanding Supreme Court decisions undermining the Fifth Circuit's reasoning. If you're not already familiar with the issue, you can get up to speed lickety split here, here, here, and here (in that order).

Anyhoo, Bender's Immigration Daily reports on a big development in Serna-Guerra v. Holder, which seeks cert to resolve this whole fooferaw. The Solicitor General's brief in response (available here) asks the Court to grant cert and remand to the Fifth Circuit for reconsideration in light of Chambers v. United States, just as the Court recently did in at least three other criminal cases:

Petitioner argues that this Court should grant plenary review because the Texas UUV offense of which he was convicted is not a “crime of violence” under 18 U.S.C. 16, and because the court of appeals’ decision upholding his removal conflicts with decisions of this Court and the United States Court of Appeals for the Tenth Circuit. In the alternative, petitioner argues that this Court should grant the petition for a writ of certiorari, vacate the decision of the court of appeals, and remand for further consideration in light of Chambers v. United States, 129 S. Ct. 687 (2009). The Court in Chambers held that a failure to report for weekend confinement is not a violent felony under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), because it does not present a serious potential risk of physical injury to another. Respondent agrees that the Court should grant, vacate, and remand in light of Chambers.

As petitioner notes, following the decision in Chambers, this Court granted certiorari, vacated the judgments below, and remanded for further consideration in three cases from the Fifth Circuit raising the same issue that petitioner raises here. See Castillo-Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-Moreno v. United States, 129 S. Ct. 993 (2009); Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009). The United States subsequently filed letter briefs in two of those three cases, informing the Fifth Circuit that, in light of Chambers and Begay v. United States, 128 S. Ct. 1581 (2008), which held that DUI is not a violent felony under the ACCA, the government no longer adheres to its prior position that UUV is a crime of violence under Section 16. See Letter from Tim Johnson, Acting U.S. Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Armendariz-Moreno, No. 07-40225 (Mar. 30, 2009); Letter from Tim Johnson, Acting U.S. Atty, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Castillo-Lucio, No. 07-40752 (March 30, 2009).

In light of the remands and the government’s change of position, the Fifth Circuit may well reconsider its prior rulings on the issue and bring itself into alignment with the Tenth Circuit. Plenary review of the issue by this Court would therefore be premature at this time. Instead, the Court should follow the same approach here that the Court took in Castillo-Lucio, Armendariz-Moreno, and Reyes-Figueroa.

(emphasis added; some extraneous cites pruned). Note the careful wording here. The SG doesn't explicitly concede the issue, but I thinks it's fair to characterize it as an endorsement of the position that the U.S. Attorney in Texas Southern has staked out in those other Chambers remands. Nevertheless, the fight's not won yet, so keep preserving the issue in your cases. And until then, the SG's brief is great fodder for an argument for non-Guidelines sentences in illegal reentry cases involving the issue.