McKenzy Alfred v. Merrick Garland, 64 F.4th 1025

Background

Petitioner McKenzy Alii Alfred, a Palauan national, pleaded guilty in Washington to one count of second-degree robbery (Wash. Rev. Code § 9A.56.190) and two counts of attempted second-degree robbery, receiving concurrent 15‑month sentences.
DHS initiated removal proceedings charging Alfred with having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) (a “theft offense” with a sentence ≥ 1 year).
The BIA and prior Ninth Circuit precedent (United States v. Alvarado‑Pineda) had held Washington second‑degree robbery (with ≥1 year sentence) qualifies as a theft aggravated felony; a Ninth Circuit panel later granted relief based on United States v. Valdivia‑Flores, which folded state accomplice law into the categorical inquiry.
The government obtained en banc rehearing asking the court to overrule Valdivia‑Flores; the en banc majority concluded it should be overruled and denied Alfred’s petition for review.
Central legal questions concerned (1) whether courts must consider state accomplice/aiding-and-abetting law when applying the categorical approach to a statute of conviction that does not itself mention accomplice liability, and (2) the mens rea that defines generic accomplice liability (purpose/intent vs. knowledge).

Issues

Issue	Alfred's Argument	Garland (Gov't) Argument	Held
Does Washington second‑degree robbery categorically match federal generic "theft offense" under § 1101(a)(43)(G)?	Alfred argued the conviction could rest on accomplice liability and Washington accomplice law is broader than the generic federal standard, so robbery may be overbroad.	The government relied on Alvarado‑Pineda and argued the elements of WA robbery fall within generic theft.	Held: Yes. The en banc majority concluded WA second‑degree robbery is a categorical match to generic theft; petition denied.
Must a court consider state accomplice/aiding‑and‑abetting law when applying the categorical approach to a state statute that is subject to a separate accomplice statute?	Alfred: Valdivia‑Flores view—fold in state accomplice law; the statute of conviction may be broader once accomplice liability is considered.	Gov't: The categorical analysis is elements‑only and should focus on the statute of conviction; accomplice theory is a non‑elemental theory of liability.	Held: The majority held accomplice liability must be considered where state law integrates accomplice liability into all crimes (Washington), because a conviction might rest on accomplice theory.
What mental state defines generic accomplice liability for categorical purposes—purpose/intent (specific intent) or knowledge (general intent)?	Alfred: Washington requires only knowledge, which is lower than the generic federal standard, so WA law is overbroad.	Gov't: Generic accomplice liability requires purposeful intent, but purposeful and knowing conduct often overlap; Washington law aligns with generic law.	Held: The majority held generic accomplice liability requires intentional aid/abet (purpose/intent) but that many jurisdictions treat that requirement to include advance knowledge—so Washington's knowledge standard aligns with generic law in practice.
Should United States v. Valdivia‑Flores (9th Cir.) be overruled?	Alfred relied on Valdivia‑Flores to support folding in state accomplice law and finding mismatch.	Gov't urged overruling Valdivia‑Flores as inconsistent with Supreme Court precedents like Duenas‑Alvarez and Mathis.	Held: The en banc majority overruled Valdivia‑Flores to the extent it required comparing state and federal aiding‑and‑abetting theories in the way Valdivia‑Flores did, but nonetheless concluded Washington law matches the (broadly defined) generic accomplice standard.

Key Cases Cited

Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (generic definition of an offense may include aiders and abettors; state-scheme outlier claim requires realistic probability of differing application)
Mathis v. United States, 579 U.S. 500 (2016) (categorical approach compares statutory elements, not underlying conduct; distinguish elements from alternative means)
Rosemond v. United States, 572 U.S. 65 (2014) (aider/abettor intent framed as advance knowledge; intent must extend to the entire crime charged)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach in immigration law; focus on conviction elements)
Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach limits inquiry; statute that sweeps more broadly than generic crime cannot qualify)
United States v. Valdivia‑Flores, 876 F.3d 1201 (9th Cir. 2017) (earlier panel folded state aiding‑and‑abetting law into categorical analysis; overruled en banc to the extent adopted there)
United States v. Alvarado‑Pineda, 774 F.3d 1198 (9th Cir. 2014) (held Washington second‑degree robbery with ≥1 year sentence qualifies as aggravated‑felony theft)
Bourtzakis v. United States Att’y Gen., 940 F.3d 616 (11th Cir. 2019) (examined Washington accomplice law and concluded it mirrored federal standard)
Mellouli v. Lynch, 575 U.S. 798 (2015) (immigration consequences target convictions, not conduct)
Borden v. United States, 141 S. Ct. 1817 (2021) (discusses categorical approach and mental‑state distinctions in certain contexts)
United States v. Franklin, 904 F.3d 793 (9th Cir. 2018) (applied Valdivia‑Flores; abrogated in part by en banc decision and discussed here)