Tuesday, November 18, 2008

UUV Circuit Split On Its Way To the Supreme Court?

As discussed here, here, and here, there's a post-Leocal circuit split over whether unauthorized use of a vehicle is a "crime of violence" under 18 U.S.C. § 16(b). And the odds of the Supreme Court resolving that split just got better. A couple of weeks ago the Fifth Circuit declined to reconsider the issue en banc, in Serna-Guerra v. Mukasey. Fortunately, four judges---including two who were on the panel---issued a dissent from the denial of rehearing that practically reads like a cert petition. Here's a couple of excerpts:

[O]ur continued classification of UUV as a crime of violence directly conflicts with the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). Moreover, the Tenth Circuit has concluded that our decisions are contrary to Leocal and held that an indistinguishable offense under Arizona law is not a crime of violence. See United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007). By failing to rehear this case en banc, the court has chosen not to correct this error in our jurisprudence and has unnecessarily prolonged our disagreement with the Tenth Circuit.

* * *

We are bound by the Supreme Court’s decisions and therefore have an obligation to correct panel rulings that conflict with its instructions. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994); Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983). There is also an overarching interest in maintaining the uniformity of federal immigration laws and consistency in their enforcement. Bustamante-Barrera v. Gonzales, 447 F.3d 388, 399 (5th Cir. 2006); Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002). Rehearing this case would serve those purposes, yet the majority of the court has chosen to allow our erroneous classification of UUV as a crime of violence to continue.

Of course, this isn't a guaranteed cert grant, but there's several factors in favor: 1) the split is clear, 2) the Fifth Circuit's position conflicts not only with another circuit, but with a Supreme Court decision, as well, 3) with this rehearing denial, it's clear that the Fifth Circuit isn't going to address the split on its own, 4) the issue affects both immigration and criminal cases, and the courts in the Fifth Circuit handle more of those cases than in any other circuit, except possibly the Ninth, and 5) in recent terms the Supreme Court has heard several cases involving interpretation of the 18 U.S.C. § 16 COV definition, as well as the similar "violent felony" definition from the ACCA. So unless there's some vehicle problem, Serna-Guerra certainly ought to show up on the Court's docket for OT09.

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