Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.

“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf

Ninth Circuit finds that Washington Conviction for Harassment is Crime of Violence

The Ninth Circuit has determined that a Washington misdemeanor conviction for harassment qualifies as a crime of violence because it involves the threatened or actual use of force.

The full text of Rodriguez-Hernandez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/12/27/21-456.pdf

Ninth Circuit Remands for Further Analysis of Washington Conviction for Attempting to Elude a Police Vehicle

The Ninth Circuit has remanded a case for further analysis of whether a Washington conviction for attempting to elude a police vehicle is a crime involving moral turpitude, in light of changes to mens rea requirement in the statute. Although the Board of Immigration Appeals has previously held that the statute is categorically a crime involving moral turpitude in Matter of Ruiz-Lopez, since that time, the legislature has changed the mens rea from “wanton or willful disregard for the lives or property of others” to mere recklessness.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-584.pdf

Ninth Circuit Finds that Washington Accomplice Liability Matches Federal Definition

The Ninth Circuit has determined that both Washington and federal generic accomplice liability law require prosecutors to meet the same standard of proof: they must show the accomplice had advance knowledge of the crime he facilitated. In so holding, the court overruled US v. Valdivia-Flores and US v. Franklin and held that second-degree robbery in Washington matches the definition of a theft aggravated felony.

The full text of Alfred v. Garland (including two concurrences and two dissents):

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/19-72903.pdf

Ninth Circuit Says WA First Deg Assault is a Crime of Violence

The Ninth Circuit has determined that a Washington conviction for first-degree assault is a crime of violence. It distinguished its prior case law on the overbreadth of Washington’s accomplice liability, finding it inapplicable to the elements-based definition of a crime of violence.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/07/18-70060.pdf

Ninth Circuit Holds that WA Convictions for Second Degree Robbery and Attempted Second Degree Robbery are not Aggravated Felonies

The Ninth Circuit has determined that Washington convictions for second degree robbery and attempted second degree robbery are not theft-related aggravated felonies because Washington defines accomplice liability in a broader fashion than federal law. The concurring opinion by Judge England suggests that no Washington conviction may qualify as an aggravated felony because of this overbroad definition of accomplice liability.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/22/19-72903.pdf

The Ninth Circuit granted rehearing en banc in this case on 6/3/22:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/03/19-72903_enbanc_order.pdf

Eleventh Circuit Finds that WA Conviction for Delivery of Cocaine is Aggravated Felony

The Eleventh Circuit has determined that a Washington conviction for delivery of cocaine is an aggravated felony. The petitioner offered two arguments as to why the statute of conviction is broader than the definition of a drug trafficking aggravated felony. First, he argues that accomplice liability under the Washington statute is broader than accomplice liability under the federal Act. Second, he argues that the Washington statute proscribes “administering” a controlled substance and the federal Act does not.

The court disagreed, finding that the petitioner could not establish a realistic probability that accomplice liability under the Washington statute extends significantly beyond liability under the federal Act. The court recognized that its decision was at odds with the caselaw with four other circuits. With respect to the issue of administering a controlled substance, the court determined that the federal Act prohibits dispensing a controlled substance, which includes administering a controlled substance.

The full text of Bourtzakis v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201812137.pdf

Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Federal Sentencing Guidelines.

The Ninth Circuit has determined that a Washington conviction for harassment by making a threat to kill qualifies as a crime of violence under the federal sentencing guidelines because it necessary entails the use of violent force.

In its analysis of the harassment conviction, the Court noted some perceived tension with its decision in US v. Valdivia-Flores, in which it noted that it is possible that no Washington state conviction will qualify as an aggravated felony for immigration purposes. The Court noted the mode of analysis employed in Valdivia-Flores is more akin to the analysis employed under the enumerated offenses clause, rather than the force clause, of the sentencing guidelines. Thus, this is one of those cases that immigration practitioners will want to carefully scrutinize to evaluate if it is determinative as to whether a Washington harassment conviction qualifies as a crime of violence aggravated felony for immigration purposes.

The full text of US v. Door can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/12/17-30165.pdf

Ninth Circuit Affirms that WA Conviction for Communication with Minor for Immoral Purposes is CIMT

The Ninth Circuit has reaffirmed that a Washington conviction for communication with a minor for immoral purposes is a crime involving moral turpitude, citing its prior decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) as binding precedent on the issue. The court also determined that it is bound by its own precedent to reject the argument that the phrase “crime involving moral turpitude” is unconstitutionally vague.

Judge Fletcher wrote a lengthy concurrence on why, absent the precedent relied on, the court should find that term is unconstitutionally vague.

The full text of Islas-Veloz v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/04/15-73120.pdf

Ninth Circuit Finds that WA 2nd Degree Murder is not Crime of Violence

The Ninth Circuit has determined that a Washington conviction for second-degree murder is not a crime of violence because Washington law imposes liability for negligent or even accidental felony murder. Thus, the statute is overbroad with respect to the generic definition of a crime of violence, which requires the intentional use of force. The court also determined that the statute is indivisible, and thus, the modified categorical approach cannot be used.

The full text of United States v. Vederoff can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/01/17-30096.pdf

Ninth Circuit finds that WA Indecent Exposure Convictions are not CIMTs

The Ninth Circuit has determined that Washington’s indecent exposure statutes are overbroad and indivisible with respect to the definition of a crime involving moral turpitude. The court noted that the Washington Supreme Court recently affirmed that nothing in the statute or these definitions of obscene and lascivious inherently requires that an exposure be committed with a sexual motive. Thus, it encompasses conduct that falls outside the Board of Immigration Appeals’ decision in Matter of Cortes Medina.

The court also found that a conviction for indecent exposure to a minor under 14, even though it involved a protected class of victims (i.e., children). “[W[e have often—although not always—concluded that crimes directed towards a protected class of victims, such as children, are categorically crimes of moral turpitude. At times, however, we will encounter a statute that is simply written too broadly to capture only depraved conduct that shocks the public conscience. This is one such statute. Wash. Rev. Code § 9A.88.010(2)(b) is unusually broad: it appears that a defendant can be convicted of indecent exposure to a person under the age of fourteen even if no one witnessed the exposure, so long as the exposure took place in the presence of a child. Nor, for that matter, need the exposure have been sexually motivated.

The full text of Barrera Lima v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/24/13-73022.pdf

Ninth Circuit Finds that WA Assault of a Child in the Third Degree is an Aggravated Felony

The Ninth Circuit has determined that Washington conviction for assault of a child in the third degree, with a special allegation that the crime was committed with sexual motivation, qualifies as a sexual abuse of a minor aggravated felony.  The special allegation had to be charged in the information and admitted by the defendant or proved to a jury beyond a reasonable doubt, and it led to an increase in the defendant's sentence.  As such, the court determined that it was an element of the petitioner's offense. 

Because the offense was committed for the purpose of sexual gratification, it necessarily involved “sexual conduct.”  

The full text of Quintero-Cisneros v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf

Ninth Circuit Finds that WA Attempted First Degree Murder is a Crime of Violence

The Ninth Circuit has determined that a Washington conviction for attempted first degree murder is a crime of violence under the federal sentencing guidelines.  In so doing, the court affirmed that even a "slight, nonviolent act with the intent to cause another’s death"  would pose a threat of violent force sufficient to satisfy the definition of a crime of violence.  Given the similar definitions of a crime of violence in the sentencing guidelines and the Immigration and Nationality Act, this decision could have persuasive impact in immigration proceedings.

The full text of US v. Studhorse II can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/02/16-30299.pdf

Ninth Circuit Finds that Washington Conspiracy Conviction is not a Controlled Substance Violation

The court held that the definition of conspiracy within the Washington Criminal Code allows for a conviction when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed – applies to a conviction for conspiracy to distribute methamphetamine.  Thus, the statute criminalizes conduct not criminalized by the federal conspiracy statute, and as such, is overbroad as compared to generic definition of a controlled substance offense.  

The decision in US v. Brown can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/16/16-30218.pdf

Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Sentencing Guidelines

The Ninth Circuit evaluated the sentencing implications of a Washington conviction for harassment.  The court determined that the "harassment statute as a whole is not categorically a crime of violence under § 4B1.2(a)(1), but felony harassment under § 9A.46.020(2)(b)(ii) is divisible from the harassment statute generally. Washington courts have made clear that felony harassment under § 9A.46.020(2)(b)(ii) is a separate crime that requires a unanimous jury to find a threat to kill beyond a reasonable doubt."  The court concluded that "[a] knowing threat of intent to cause bodily injury plainly requires a sufficient mens rea to constitute a threatened use of physical force." 

The full text of US v. Werle can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/13/16-30181.pdf

Ninth Circuit Finds that Washington Definition of Aiding and Abetting is Broader than Federal Definition

The Ninth Circuit has determined that a Washington drug trafficking conviction is not an aggravated felony.

The court observed that "the implicit nature of aiding and abetting liability in every criminal charge is well-settled."  Further, federal law requires a mens rea of specific intent for conviction for aiding and abetting, whereas Washington requires merely knowledge.  "Therefore, the Washington drug trafficking law on its face appears to have a more inclusive mens rea requirement for accomplice liability than its federal analogue."  Because a jury need not distinguish between principals and accomplices, the drug trafficking statute is not divisible so far as the distinction between those roles is concerned, so the modified categorical approach may not be applied.

The court noted that "the government makes a pragmatic argument that, under Valdivia-Flores’s proposed application of the categorical approach, 'no Washington state conviction can serve as an aggravated felony at all because of [the] accomplice liability statute' and that such a result 'cannot have been Congress’s intent.' The government here merely joins a chorus of those who have raised concerns about [the] line of decisions' applying the categorical approach, '[b]ut whether for good or for ill, the elements-based approach remains the law.'”  Thus, it would seem that the Ninth Circuit may have implicitly conceded that no Washington state convictions can qualify as an aggravated felonies.  

The full text of US v. Valdivia-Flores can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/15-50384.pdf

Ninth Circuit Finds that Washington Conviction for Second-Degree Assault is not a Crime of Violence under Sentencing Guildelines

The Ninth Circuit finds that a Washington conviction for second-degree assault is not a crime of violence under the federal sentencing guidelines.  The statute is not a categorical match to the definition of a crime of violence because it does not necessarily require the actual, attempted, or threatened use of force capable of causing physical pain or injury to another.  In addition, the jury need not decide between the various subsections of the statute, indicating that is both overbroad and indivisible.  

Given the similarity between the definition of a crime of violence in the immigration and federal sentencing context, this decision likely has persuasive effect in the immigration context.

The full text of US v. Robinson can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/25/16-30096.pdf

Ninth Circuit Addresses a Washington Conviction for Felony Riot

In the context of a federal sentencing case, the Ninth Circuit determined that a Washington conviction for felony riot is not categorically a violent felony under the Armed Career Criminal Act because the "force" required under the statute is more broadly defined than the violent force required to be a violent felony.  Moreover, the fact a person must be "armed" to be convicted under the statute does not change the analysis, because the state law definition of armed includes a weapon within reaching distance, even if the defendant never made any attempt to use the weapon during the crime.

The court also determined that the statute is indivisible, and therefore, that the modified categorical approach cannot be employed.  Given the similarity between the definitions of "violent felony" in the criminal context and "crime of violence" in the immigration context, this case provides a good argument that a conviction under this statute is not a crime of violence in the immigration context. 

The full text of United States v. Werle can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/03/14-30189.pdf

Ninth Circuit Examines a Washington Conviction for Delivery of a Controlled Substance

The Ninth Circuit addressed whether a conviction for delivery of heroin under Revised Code of Washington § 69.50.401(a)(1)(i) was a “drug trafficking offense.”  The court held that the defendant had not show a realistic probability that the statute could covered the act of administering a drug.  He had identified any cases where the state had prosecuted someone for this conduct.  The court distinguished this from other overbroad statutes which specifically identified conduct in the plain wording of the statute that fell outside the federal generic definition, stating that the statute at issue "does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception."  Thus, the conviction could be properly characterized as a drug trafficking offense.  This case could have implications for immigration proceedings, where drug trafficking offenses can be classified as aggravated felonies or where a respondent can be found inadmissible if there is reason to believe he engaged in drug trafficking. 

The full test of US v. Borgos-Ortega can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/05/13-50237.pdf