Pasadena, California March 29, 2016. [*]
from the United States District Court for the Northern
District of California. D.C. No. 5:11-cr-00900-EJD-1. Edward
J. Davila, District Judge, Presiding.
panel affirmed a sentence for illegal reentry in a case in
which the government challenged the district court's
conclusion that the defendant's prior burglary conviction
under California Penal Code § 459 did not qualify as a
" crime of violence" as defined in 18 U.S.C. §
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the
panel held that the definition of crime of violence that
appears in § 16(b), as incorporated in U.S.S.G. §
2L1.2(b)(1)(C), is void for vagueness.
Jean Chan, Assistant United States Attorney; Brian Stretch,
Acting United States Attorney, and Barbara J. Valliere,
Chief, Appellate Division, Assistant United States Attorney,
United States Attorney's Office for the Northern District
of California, San Francisco, California, for
M. Morales, Law Offices of Morales & Leaños, San Jose,
California, for Defendant-Appellee.
Stephen Reinhardt, Ferdinand F. Fernandez, and Richard R.
Clifton, Circuit Judges.
United States of America appeals the sentence imposed on
appellee Marco Hernandez-Lara following his conviction for
illegal reentry under 8 U.S.C. § 1326. Specifically, the
government contends that the district court miscalculated the
United States Sentencing Guidelines range applicable to
Hernandez because the district court concluded that
Hernandez's 2009 burglary conviction under California
Penal Code § 459 did not qualify as a " crime of
violence" as defined in 18 U.S.C. § 16(b). After
the government filed its appeal, however, we held in a
different context that the definition of a crime of violence
that appears in § 16(b) is unconstitutionally vague.
See Dimaya v. Lynch, 803 F.3d 1110 (9th
Cir. 2015). Because we are bound by Dimaya 's
holding, and because the government offers the same arguments
in favor of § 16(b)'s constitutionality that we
rejected in that decision, we hold that § 16(b), as
incorporated in U.S.S.G. § 2L1.2(b)(1)(C), is void for
U.S.S.G. § 2L1.2(b)(1)(C) imposes an 8-level enhancement
on a defendant convicted of illegal reentry if " the
defendant previously was deported, or unlawfully remained in
the United States, after . . . a conviction for an aggravated
felony." Section 2L1.2 defines " aggravated
felony" by reference to 8 U.S.C. § 1101(a)(43),
which includes numerous offenses. U.S.S.G. § 2L1.2, cmt.
3(A). One of these offenses is a " crime of violence (as
defined in section 16 of Title 18 . . . )." 8 U.S.C.
§ 1101(a)(43)(F). Here, the government argued to the
district court that Hernandez's burglary conviction
qualified as a " crime of violence" under §
16(b), which the statute defines as an " offense that is
a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense," 18
U.S.C. § 16(b). The district court disagreed, concluding
that burglary under California Penal Code § 459 "
is not a crime of violence under section 16(b)." It then
sentenced the defendant to 24 months of incarceration, and
the government appealed.
the government appealed this decision, the United States
Supreme Court decided Johnson v. United States, 135
S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson held
that language similar to § 16(b), the Armed Career
Criminal Act's so-called " residual clause"
definition of a " violent felony," is
unconstitutionally vague. 135 S.Ct. at 2557; see
alsoDimaya, 803 F.3d at 1115. We deferred
submission pending this court's decision in
Dimaya (which ...