932 F.3d 782
9th Cir.2019Background
- Perez was convicted in May 2016 of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and had a prior California conviction for felony battery causing serious bodily injury (Cal. Penal Code § 243(d)).
- Presentence report treated the § 243(d) conviction as a "crime of violence" under U.S.S.G. § 2K2.1(a)(4), producing a base offense level of 20 and an advisory range of 63–78 months (adjusted level 19, criminal history VI); the report recommended a downward variance to 46 months.
- The district court found § 243(d) qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1) and sentenced Perez to 61 months’ imprisonment plus three years’ supervised release.
- Perez appealed, challenging the categorical determination that § 243(d) is a "crime of violence." The Ninth Circuit reviews that question de novo and applies the categorical approach from Taylor v. United States.
- The court analyzed whether § 243(d)’s elements—an intentional use of force that results in "serious bodily injury"—necessarily involve the "violent physical force" required by § 4B1.2(a)(1), considering state statutory definitions and prior Ninth Circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 243(d) is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) | Perez: § 243(d) can encompass minimal or nonviolent touchings that nonetheless result in serious injury (theoretical scenarios), so it is overbroad and not categorically a crime of violence | Government/District Court: § 243(d) requires intentional use of force that results in serious bodily injury, which necessarily involves violent physical force and thus fits § 4B1.2(a)(1) | The Ninth Circuit held § 243(d) is categorically a "crime of violence" under § 4B1.2(a)(1) |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishing the categorical approach)
- Johnson v. United States, 559 U.S. 133 (defining "physical force" as "violent force")
- Stokeling v. United States, 139 S. Ct. 544 (force overcoming resistance is "violent force")
- Leocal v. Ashcroft, 543 U.S. 1 (intentional use of force required; distinguishes negligent conduct)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 (requires realistic probability, not theoretical possibility, that state applies statute to nongeneric conduct)
- United States v. Colon-Arreola, 753 F.3d 841 (9th Cir.) (battery causing injury requiring medical treatment qualifies as violent force)
- United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir.) (battery causing traumatic condition is a crime of violence)
- United States v. Lawrence, 627 F.3d 1281 (9th Cir.) (statute requiring assault that inflicts substantial bodily harm is a crime of violence)
- Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir.) (battery alone, as defined in § 242, is not categorically a crime of violence)