Case Information

UNITED STATES of America, Plaintiff-Appellant, v. Marco HERNANDEZ-LARA, Defendant-Appellee.

No. 13-10637.

United States Court of Appeals, Ninth Circuit.

Submitted March 29, 2016. Filed March 29, 2016.

651

Before: STEPHEN REINHARDT, FERDINAND F. FERNANDEZ, and RICHARD R. CLIFTON, Circuit Judges.

The district court relied on several factors to reach that conclusion. Among other things, the court found that Defendant's reduced mental capacity resulted in part from the voluntary use of illegal drugs. That finding is not clearly erroneous. Section 5K2.13 provides that "the court may not depart below the applicable guideline range if ... the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants." In addition, the court found that Defendant could "maintain her composure and be acute in ... formulating her intentions." Defendant used deliberate and intelligent methods of carrying out the offense—such as using fake names and ages for the victims—which negated the inference that diminished capacity caused her to commit the offense. Again, those findings are not clearly erroneous. Because the court came to a reasonable conclusion, supported by evidence, it permissibly denied the motion for a downward departure.

AFFIRMED.

Merry Jean Chan, Assistant United States Attorney; Brian Stretch, Acting United States Attorney, and Barbara J. Valliere, Chief, Appellate Division, Assistant United States Attorney, United States Attorney's Office for the Northern District of California, San Francisco, CA, for Plaintiff-Appellant.

Alfredo M. Morales, Law Offices of Morales & Leafios, San Jose, CA, for Defendant-Appellee.

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

OPINION

PER CURIAM:

Appellant United States of America appeals the sentence imposed on appellee Marco Hernandez-Lara following his conviction for illegal reentry under 8 U.S.C. § 1326. Specifically, the government contends that the district court miscalculated the United States Sentencing Guidelines range applicable to Hernandez because the district court concluded that Hernandez's 2009 burglary conviction under California Penal Code § 459 did not qualify as a "crime of violence" as defined in 18 U.S.C. § 16(b). After the government filed its appeal, however, we held in a different context that the definition of a crime of violence that appears in § 16(b) is unconstitutionally vague. See Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Because we are bound by Dimaya's holding, and because the government offers the same arguments in favor of § 16(b)'s constitutionality that we rejected in that decision, we hold that § 16(b), as incorporated in U.S.S.G. § 2L1.2(b)(1)(C), is void for vagueness.

1. U.S.S.G. § 2L1.2(b)(1)(C) imposes an 8-level enhancement on a defendant convicted of illegal reentry if "the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony." Section 2L1.2 defines "aggravated felony" by reference to 8 U.S.C. § 1101(a)(43), which includes numerous offenses. U.S.S.G. § 2L1.2, cmt. 3(A). One of these offenses is a "crime of violence (as defined in section 16 of Title 18 ...)." 8 U.S.C. § 1101(a)(43)(F). Here, the government argued to the district court that Hernandez's burglary conviction qualified as a "crime of violence" under § 16(b), which the statute defines as an "offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," 18 U.S.C. § 16(b). The district court disagreed, concluding that burglary under California Penal Code § 459 "is not a crime of violence under section 16(b)." It then sentenced the defendant to 24 months of incarceration, and the government appealed.

After the government appealed this decision, the United States Supreme Court decided Johnson v. United States, — U.S. —, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). Johnson held that language similar to § 16(b), the Armed Career Criminal Act's so-called "residual clause"1 definition of a "violent felony," is unconstitutionally vague. 135 S. Ct. at 2557; see also Dimaya, 803 F.3d at 1115. We deferred submission pending this court's decision in Dimaya (which addressed Johnson's impact on § 16(b)), and ordered supplemental briefing once Dimaya became final.

2. In Dimaya, we relied on Johnson to hold that § 16(b)—the exact same definition of a "crime of violence" at issue in this case—was void for vagueness. Dimaya, 803 F.3d at 1115. We stated that the "residual clause" declared unconstitutional in Johnson and § 16(b), although not identical, are both "subject to the same constitutional defects." Id. Here, the government seeks to distinguish Johnson based on the insignificant differences between the "residual clause" and § 16(b)—arguments that we explicitly rejected in Dimaya, id. at 1117-19. Indeed the government admits as much, and offers no basis upon which to distinguish the application of § 16(b) in Dimaya and its application here. We, too, see no reason why Dimaya does not control this case. We therefore hold that § 16(b), as incorporated in U.S.S.G. § 2L1.2(b)(1)(C), is unconstitutionally vague, and affirm the sentence.

AFFIRMED.

Footnotes

1 The "residual clause" defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).