United States v. Julio Hernandez
2014 U.S. App. LEXIS 20057
9th Cir.2014Background
- Defendant Julio Cesar Arriaga-Hernandez pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a) after multiple deportations; at sentencing the court applied an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).
- The enhancement was based on a 2003 California conviction for being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)).
- The district court treated the California conviction as an "aggravated felony" because it matched the federal felon-in-possession offense (18 U.S.C. § 922(g)(1)).
- Defendant argued California’s statute is overbroad compared to the federal offense because California’s definition of "firearm" does not exclude antique firearms while federal law does (18 U.S.C. § 921(a)(3)).
- The Ninth Circuit evaluated whether the state conviction is a categorical match to the federal offense and whether there is a realistic probability that California prosecutes possession of antique firearms under § 12021(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a California conviction under Cal. Penal Code § 12021(a)(1) is a categorical match to the federal felon-in-possession offense for purposes of the § 2L1.2(b)(1)(C) enhancement | Government: the prior California conviction qualifies as an aggravated felony warranting the eight-level enhancement | Hernandez: California's statute is overbroad because it does not exclude antique firearms (unlike federal law), so it cannot categorically match 18 U.S.C. § 922(g)(1) | The Ninth Circuit reversed: § 12021(a)(1) is not a categorical match; the enhancement was improperly applied |
| Whether the federal antique-firearm exception is relevant to the categorical analysis | Government: antique-firearm exclusion is an affirmative defense and not considered in categorical approach | Hernandez: the exclusion matters because it narrows the federal definition of "firearm" so state statutes lacking the exclusion can be overbroad | Court: recent Ninth Circuit precedent (Aguilera-Rios) requires considering the antique exception; it is relevant and renders § 12021(a)(1) overbroad |
| Whether there is a "realistic probability" California would prosecute possession of antique firearms under § 12021(a)(1) | Government: no realistic probability such prosecutions occur | Hernandez: California does prosecute antique/replica muzzle-loading firearms under § 12021(a)(1) | Court: California courts have affirmed convictions for antique/replica firearms; realistic probability standard met |
| Whether the modified categorical approach applies to § 12021(a)(1) to identify qualifying offenses | Government: may attempt to use modified categorical approach | Hernandez: California's firearm definition is indivisible, so modified approach inapplicable | Court: the California statute is not divisible; Descamps bars the modified categorical approach; enhancement cannot be sustained |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical-approach framework)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability test for state prosecutions outside the generic crime)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (limits reliance on certain defenses in categorical analysis and affects how prior convictions are compared)
- Descamps v. United States, 570 U.S. 254 (2013) (holds modified categorical approach inapplicable to indivisible statutes)
- Gil v. Holder, 651 F.3d 1000 (9th Cir. 2011) (earlier Ninth Circuit treatment of antique-firearm issue that was later refined)
- United States v. Acosta-Chavez, 727 F.3d 903 (9th Cir. 2013) (applies categorical analysis to § 2L1.2 enhancements)