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United States v. Hernandez-Lara

United States Court of Appeals, Ninth Circuit

March 29, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
MARCO HERNANDEZ-LARA, Defendant-Appellee

         Submitted, Pasadena, California March 29, 2016. [*]

          Appeal 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.

         SUMMARY[**]

         Criminal Law

         The 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. § 16(b).

         Applying 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.

         Merry 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 Plaintiff-Appellant.

         Alfredo M. Morales, Law Offices of Morales & Leaños, San Jose, California, for Defendant-Appellee.

         Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Richard R. Clifton, Circuit Judges.

          OPINION

Page 652

          PER CURIAM:

         Appellant 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 vagueness.

         1. 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.

         After 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" [1] 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 ...


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