United States v. Rogelio Sanchez Molinar
881 F.3d 1064
9th Cir.2017Background
- Molinar pleaded guilty to federal felon-in-possession-of-ammunition; district court applied a Guidelines enhancement because he had a prior Arizona attempted armed robbery conviction deemed a "crime of violence."
- The enhancement (USSG §2K2.1(a)(4)(A)) raised his Guidelines range from 27–33 months to 46–57 months; the court sentenced him to 44 months.
- The Guidelines defined "crime of violence" by cross-reference to USSG §4B1.2 (force clause, enumerated felonies, residual clause) and Application Note 1 (which lists robbery and attempt).
- Molinar challenged treating his Arizona attempted armed robbery as a categorical "crime of violence." The Ninth Circuit panel reexamined United States v. Taylor in light of Johnson v. United States.
- The panel rejected Taylor’s force-clause rationale (post-Johnson) but held Arizona armed robbery matches generic robbery and, with Arizona attempt law, attempted armed robbery qualifies under the enumerated-felonies clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona attempted armed robbery is a "crime of violence" under USSG §4B1.2 | Molinar: Taylor was effectively overruled by Johnson; Arizona armed robbery can encompass non-violent conduct and thus is not a categorical crime of violence | Government: Even if force-clause analysis in Taylor is affected by Johnson, Arizona armed robbery (and attempt) still qualify under the Guidelines as an enumerated crime (robbery) and attempt matches generic attempt | Held: Arizona armed robbery is not a force-clause crime post-Johnson, but it is a categorical match to generic robbery; Arizona attempt matches generic attempt; attempted armed robbery is a "crime of violence" under the enumerated-felonies clause. |
| Whether Johnson’s narrowing of "physical force" undermines Taylor | Molinar: Johnson requires "violent force," so Taylor’s reliance on Arizona robbery’s broad definition fails | Government: Taylor can be sustained on another basis (enumerated robbery/attempt) even if force-clause reasoning fails | Held: Taylor’s force-clause rationale is effectively overruled by Johnson; court abandons that part of Taylor. |
| Whether Arizona robbery is broader than "generic robbery" (immediate danger to the person) | Molinar: Arizona’s robbery (and armed robbery) can be applied to minimal, non-dangerous takings (e.g., snatching) and thus is broader than generic robbery | Government: Generic robbery requires force or putting in fear sufficient to compel acquiescence; Arizona cases (Moore, Yarbrough, Stevens) fall within that range, so statutes are coextensive | Held: Arizona robbery is coextensive with generic robbery (force or putting in fear sufficient to compel acquiescence), so it is an enumerated crime of violence. |
| Whether Arizona attempt doctrine diverges from generic attempt | Molinar: State cases suggest a different standard for attempt that might avoid generic attempt | Government: Taylor held Arizona attempt matches generic attempt; no binding Arizona decision changes that analysis | Held: Court adheres to Taylor on attempt; attempted armed robbery qualifies as attempted generic offense and thus as a crime of violence. |
Key Cases Cited
- United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008) (previously held Arizona attempted armed robbery was a Guidelines "crime of violence")
- Johnson v. United States, 559 U.S. 133 (2010) (statutory "physical force" means "violent force" capable of causing pain or injury)
- Beckles v. United States, 137 S. Ct. 886 (2017) (Guidelines' residual clause not subject to vagueness challenge in collateral review)
- United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) (definition of generic robbery involves misappropriation under circumstances involving immediate danger to the person)
- United States v. Harris, 572 F.3d 1065 (9th Cir. 2009) (Nevada robbery statute compared to California statute; degree of force immaterial if used to compel acquiescence)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical-approach framework for comparing statutory elements to generic offense)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presumption that conviction rests on least conduct criminalized)
- United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (discussing force and robbery in categorical analysis)