Ninth Circuit Finds Arizona Marijuana Statute Divisible

The Ninth Circuit has determined that Arizona Revised Statutes 13-3405(A)(4), which criminalizes certain acts involving marijuana, is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Although the court concluded that the various acts criminalized - transportation, importation, etc. - are alternative elements of the statute, it also concluded that offenses involving a very small quantity of marijuana for sale are not crimes involving moral turpitude.

The full text of Walcott v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/18-70393.pdf

Ninth Circuit Addresses Arizona Aggravated Assault Statute

In an unpublished decision, the Ninth Circuit determined that a conviction under Arizona Revised Statutes §§ 13-1203(A)(3) and 13-1204(A)(8)(e) for aggravated assault is not categorically a crime involving moral turpitude.  The court recognized that under Arizona law, the intent predicates in § 13-1203(A)(3) constitute only means of committing the crime of assault, not separate elements.  Arizona courts have held that  statutes that prohibit one act committed with different mental states are construed as defining a single offense, and therefore, a jury need not unanimously decide which subset mental state the defendant had while committing the crime. As such, the intent predicates are not alternative elements.  

The full text of Govindarajan v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/05/11-71533.pdf

Ninth Circuit Determines that Arizona Aggravated Assault is not Necessarily a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit, in the context of a sentencing hearing for illegal re-entry, addressed where Arizona's aggravated assault could qualify as an aggravated felony.  While the standards for a crime of violence under the federal sentencing guidelines differ somewhat from the standard for a crime of violence in immigration law, the court made several observations about the statute of conviction at issue that could carry over into an immigration context.  

For example, the court noted that a conviction for aggravated assault in Arizona can be based on a mens rea of ordinary recklessness.  Under Ninth Circuit case law, that would be insufficient to deem a conviction a crime of violence, which requires intentional or knowing conduct.  

The court also observed that a statement by counsel during a plea colloquy regarding the mens rea involved in a particular conviction is not cognizable under the modified categorical approach if the factual admission is not related to an element of the conviction.  Because a conviction for aggravated assault in Arizona can be supported by recklessness, there would be no need for defendant to admit to a higher level of intent when pleading.  Absent a narrowing language in the plea agreement or charging document that could verify such a higher level of intent, such a statement about intent during a plea colloquy is insufficient to demonstrate that a conviction rested upon the higher level of intent.

The court recognized that its decision is in tension with Third Circuit case law, which allowed for a defendant's factual admissions during a plea colloquy to resolve the issue of what level of intent his conviction rested upon.  

This case has strong language that attorneys can use to advocate against a court's consideration of factual admissions during a plea colloquy, if such admissions do not correspond to the specific allegations in a charging document or plea agreement.  It may help protect our clients against their unwitting statements that the factual circumstances of their offenses were more severe that necessarily demonstrated by the record of conviction.

The full text of US v. Marcia-Acosta can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/23/13-10475.pdf

Ninth Circuit addresses two Arizona criminal statutes

We're less than one week into the month, but the Ninth Circuit seems to be on an Arizona crimmigration binge, issuing two decisions in as many days that address the immigration consequences of Arizona convictions.  

On November 5, 2014, the court issued a decision in Ibarra-Hernandez v. Holder, addressing the Arizona statute criminalizing the "taking of the identity of another."  This statute, which criminalizes the use of both fictitious and real identities, is not categorically a crime involving moral turpitude.  It is, however, also divisible.  Thus, the court proceeded to the modified categorical approach and examined Ibarra-Hernandez's plea transcript, which indicated that she used the social security number of a real person to obtain employment.  The court construed this act was a form of theft involving fraud, and therefore, a crime involving moral turpitude.  The court did recognize that the use of a fictitious person's identity would not be a crime involving moral turpitude.  Nonetheless, a potentially harsh result for an undocumented individual individual who uses another person's identity to work, but causes him or her no economic harm (and perhaps even improving his or her future social security income!)

The next day, the Ninth Circuit issued its decision in Leal v. Holder, taking up the Arizona statute defining felony endangerment.  Leal argued that the reckless mens rea needed to sustain a conviction,  which included recklessness based on voluntary intoxication, was insufficient to demonstrate moral turpitude.  The court disagreed, finding that the harmful behavior criminalized by the statute (conduct that creates a substantial, actual risk of imminent death to another person) was severe enough to make up for the lower level of mens rea.  The court concluded that the statute was categorically a crime involving moral turpitude.

The full text of Ibarra-Hernandez v. Holder can be viewed here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/05/11-70739.pdf

The full text of Leal v. Holder can be viewed here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/06/12-73381.pdf