United States v. Sanchez Molinar, No. 15-10430 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed the district court's imposition of a sentencing enhancement based on defendant's prior Arizona conviction for attempted armed robbery, which the court treated as a "crime of violence" under the U.S. Sentencing Guidelines Manual. The panel reexamined its previous decision in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona attempted armed robbery should be considered a crime of violence under the relevant Guidelines provision, in light of the Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010), which construed a similarly worded crime-of-violence provision in the Armed Career Criminal Act (ACCA). The panel held that, although Johnson did not require the panel to depart from some of its analysis in Taylor, Arizona attempted armed robbery nonetheless qualifies as a crime of violence for reasons other than those relied upon in Taylor. The panel held that Arizona robbery (and thus armed robbery) was a categorical match to generic robbery, and that Arizona attempt was equivalent to generic attempt, so defendant's conviction did constitute a crime of violence for purposes of USSG 4B1.2.
Court Description: Criminal Law. The panel affirmed the district court’s imposition of a sentencing enhancement based on the defendant’s prior Arizona conviction for attempted armed robbery, which the district court treated as a “crime of violence” under the U.S. Sentencing Guidelines. The panel wrote that this court’s conclusion in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona armed robbery is a crime of violence under USSG § 4B1.2’s force clause, is clearly irreconcilable with the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), and has therefore been effectively overruled. The panel concluded that Arizona armed robbery can no longer be considered a categorical crime of violence under Section 4B1.2’s force clause. The panel held that Arizona robbery (and thus armed robbery) is a categorical match to generic robbery, and that Arizona attempt is equivalent to generic attempt, so the defendant’s conviction does constitute a crime of violence under Section 4B1.2’s enumerated felonies clause. Dissenting, Judge Fletcher wrote that under the plain- meaning understanding of “immediate danger to the person,” the circumstances in State v. Moore, 2014 WL 4103951 (Ariz. Ct. App.), did not involve such danger, and that
The court issued a subsequent related opinion or order on February 5, 2018.
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