Wednesday, August 16, 2006

Might the Fifth Circuit Reconsider Whether Cal. Penal Code § 245(a)(1) is Categorically a §2L1.2(b)(1)(A)(ii) Crime of Violence?

United States v. Robles-Enriquez, No. 05-40388 (5th Cir. Aug. 11, 2006) (unpublished)

In United States v. Sanchez-Ruedas the court held that assault with a deadly weapon and by means of force likely to produce great bodily injury under Cal. Penal Code § 245(a)(1) is "sufficiently similar to the generic contemporary definition of aggravated assault to qualify categorically as an enumerated crime of violence" for purposes of the 16-level enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). 452 F.3d 409, 413 (5th Cir. 2006). Robles had a prior conviction under that California statute, so the court here considered itself bound by Sanchez-Ruedas to hold that Robles qualified for the 16-level crime of violence enhancement.

Judge Dennis wrote a separate concurrence "acquiesc[ing]" in the majority's determination that Sanchez-Ruedas controlled the outcome here. However, he opined that the court was actually bound by an earlier panel decision of the Fifth Circuit (United States v. Torres-Diaz, 438 F.3d 529, 536-37 (5th Cir.), cert. denied, 126 S. Ct. 1487 (2006)) and by California cases interpreting § 245(a)(1) "which would, together, have required a different result here." Slip op. at 3. Judge Dennis therefore suggested that "en banc reconsideration of both this decision and Sanchez-Ruedas may be appropriate." Id.

Apart from citing cases, Judge Dennis didn't spell out exactly why he thinks Sanchez-Ruedas might have been wrongly decided, but it's probably because Sanchez-Ruedas glossed over a feature of the California offense that renders it broader than generic aggravated assault.

Sanchez-Ruedas relied primarily on the Model Penal Code's definition of aggravated assault (as had Torres-Diaz). See 452 F.3d at 412-14. In comparing the elements of Cal. Penal Code § 245(a)(1) and the MPC provision regarding aggravated assault committed without a weapon, the court identified a difference in the required mens rea: the MPC requires that the defendant intend to cause serious bodily injury, while under § 245(a)(1) "the defendant need not specifically intend great bodily injury, but need only intentionally engage in conduct that will likely produce that." Id. at 414.

Well if that's the case then the California statute is broader than the generic, contemporary definition of aggravated assault embodied in the MPC, and under the categorical approach that means that it isn't generic aggravated assault. Sanchez-Ruedas didn't discuss this point in any depth; it simply noted the difference and then asserted that "[t]his subtle difference between the aggravating factors in these two statutes, California's focus on the defendant's intentional conduct in contrast to the Model Penal Code's focus on the defendant's intentional result, is not enough to remove the California statute from the family of offenses commonly known as 'aggravated assault.'" Id.

Sanchez-Ruedas appears to have gotten this one wrong, and Judge Dennis rightly suggests that this issue deserves en banc reconsideration. (That also means that this is an issue worth preserving if it arises in any of your cases.)

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