United States v. Margarito Flores-Cordero
2013 U.S. App. LEXIS 15186
| 9th Cir. | 2013Background
- Margarito Flores-Cordero pled guilty to illegal reentry (8 U.S.C. § 1326); the plea agreement allowed the government to withdraw if a prior conviction was a "crime of violence."
- Presentence report showed a prior Arizona conviction for resisting arrest under Ariz. Rev. Stat. § 13-2508(A)(1).
- The district court applied a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A) treating the Arizona conviction as a "crime of violence," resulting in an increased Guidelines range and a 63-month sentence.
- The Ninth Circuit had previously held (Estrada-Rodriguez) that the Arizona resisting-arrest statute was categorically a crime of violence, based on earlier Arizona precedent (Womack).
- Subsequent Arizona decisions (notably State v. Lee) interpreted § 13-2508(A)(1) to include minimal physical contact or a "minor scuffle," i.e., conduct that may not involve force "capable of causing physical pain or injury."
- Supreme Court and Ninth Circuit authority (Johnson and its progeny) define "physical force" for federal violent-crime purposes as force capable of causing physical pain or injury; because Arizona law permits minimal force, the court held the statute is not categorically a crime of violence and vacated the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an Arizona resisting-arrest conviction under § 13-2508(A)(1) is categorically a "crime of violence" for U.S.S.G. § 2L1.2 purposes | Gov: The statute requires use or threatened use of physical force and thus is categorically a crime of violence (per Estrada‑Rodriguez). | Flores‑Cordero: Arizona cases allow minimal/noninjurious force (e.g., minor scuffles), so the statute criminalizes conduct below the federal "physical force" threshold. | The statute, as interpreted by Arizona courts (post‑Estrada, e.g., Lee), covers minimal force not necessarily capable of causing pain or injury; thus it is not categorically a crime of violence. |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (adopts definition of "physical force" as force capable of causing physical pain or injury and instructs federal courts to follow state law for the elements of prior convictions)
- Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007) (earlier Ninth Circuit decision holding Arizona resisting-arrest was categorically a crime of violence)
- Villavicencio-Burruel, 608 F.3d 556 (9th Cir. 2010) (applies Johnson’s definition to guideline contexts)
- Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (distinguishes other state statutes that encompass nonviolent conduct)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (discusses the modified categorical approach; later limited by Descamps)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (holds modified categorical approach inapplicable to indivisible statutes)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (explains that intervening higher authority can supersede prior panel precedent)
Conclusion: The Ninth Circuit vacated Flores-Cordero’s sentence and remanded for resentencing without the § 2L1.2(b)(1)(A) enhancement because Arizona resisting-arrest, as interpreted by state courts, is not categorically a federal "crime of violence."