Case Information
*2
SCHROEDER, Circuit Judge:
The issue in this sentencing appeal is whether the defendant’s prior Arizona conviction for resisting arrest is a “crime of violence” that authorized a sixteen-level increase to the base offense level under United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2. On the basis of decisions of the Arizona courts that we must follow in ascertaining the scope of the Arizona criminal statute, we hold that the prior *3 conviction was not categorically а crime of violence and therefore vacate the sentence and remand for resentencing.
BACKGROUND
Defendant-Appellant Margarito Flores-Cordero pled
guilty to illegal reentry in violation of 8 U.S.C. § 1326 under
an agrеement providing that the government could withdraw
in the event that the presentence report reflected a prior
conviction of a crime of violence. The presentence report
showed thаt Flores-Cordero had a prior conviction for
“resisting arrest” in violation of Ariz. Rev. Stat. § 13-2508.
The district court held that this conviction was for a crime of
violence and relied on this court’s decision in
Estrada-
Rodriguez v. Mukasey
, 512 F.3d 517 (9th Cir. 2007), an
immigration case in which we held that the violation of the
Arizona statute was categorically a crime of violence. In
, we looked primarily to the language of
the Arizona statute and to an earlier Arizona case holding that
nonviolent flight from an arrest did not violate the Arizona
statute.
See State v. Womack
,
The existence of a prior conviction for a “crime of violence” is important in a number of federal contexts. In the immigration context, noncitizens convicted of crimes of violence are aggravated felons, and therefore ineligible for certain forms of discretionary relief from removal including аsylum. 8 U.S.C. § 1227(a)(2)(iii); 8 U.S.C. § 1158(b)(2)(B)(i). Under the Armed Career Criminal Act (“ACCA”), three prior convictions for “violent felonies” establish a defendant as a career criminal and subject him to a potential life sentence. 18 U.S.C. § 924(e)(1). In the illegal reentry cоntext, as we deal with here, the defendant’s prior deportation stemming from a conviction for a “crime of violence” gives rise to a significant upward sentencing adjustment. U.S.S.G § 2L1.2(b)(1)(A). Here, Flores- Cordero’s Guideline range increased from 18 to 27 months without the adjustment to 70 to 87 months with the adjustment, and the district court imposed a below-Guideline sentence of 63 months.
In all of the federal contexts, the definitions require *4 application of “physicаl force” for a prior crime to be considered violent. See 18 U.S.C. § 16 (“Crime of violence” in immigration context means “an offense that has as an element the use, attempted use, or threatened use of physical fоrce against the person or property of another.”); 18 U.S.C. § 924(e)(2)(B) (In the ACCA context, “violent felony” is any crime that has “as an element the use, attempted use, or threatened use of physical force against the person of another.”); U.S.S.G § 2L1.2 cmt. n. 1(B)(iii) (In illegal reentry sentencing scheme, “crime of violence” includes any offense “that has as an element the use, attempted use, or threatened use of physical force аgainst the person of another.”).
Flores-Cordero’s prior Arizona conviction was for resisting arrest in violation of Ariz. Rev. Stat. § 13- 2508(A)(1). That statute provides:
A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by: 1. Using or threatening to use physiсal force against the peace officer or another.
Since all the statutes refer to “physical force,” the meaning of that phrase under state and federal law is critical. We must therefore analyze the Arizona statute in light of recent controlling decisions in the federal and Arizona state courts.
DISCUSSION
The legal framework for our decision in this case was
established by the United States Supreme Court in
Johnson
*5
6
U NITED S TATES V . F LORES -C ORDERO
v. United States
,
The Court in
Johnson
had before it a Florida conviction
for battery, and it thereforе looked to Florida law to
determine what conduct was criminalized under the state
statute.
In this case, we are concerned with the Arizona statute
that criminalizes “resisting arrest.” It requires use or
threatened use of physical force against an officer. Ariz. Rev.
Stat. § 13-2508(A)(1). One of the early Arizona decisions
interpreting that statute was
Womack
,
In Estrada - Rodriguez , relying on Womack , we held that because the Arizona statute required use of force or risk of injury, it qualified as a “crime of violence” within the meaning of the federal statute. Estrada-Rodriguez , 512 F.3d at 521. We did not deal with the level of force required.
After both
Womack
and , the Arizona
courts decided cases involving resisting arrest where there
wаs physical contact between officers and arrestees. The
leading case is
State v. Lee
, 176 P.3d 712 (Ariz. Ct. App.
2008). There, the criminal prosecution was prompted by the
defendant’s struggle to keep from being handcuffed.
Id.
at
713. Lee kicked the officers trying to control her.
Id.
She
argued on appeal that her conduct did not amount to
“resisting arrest” because no one was injured or placed in any
danger of injury, so the episode amounted to a “minor
scuffle” that was outside the scope of the resisting arrest
statute.
Id.
The Arizona Court of Appeals rejected that
argument, holding that because some physical force was used,
the conduct was within the scope of the resisting arrest
statute.
Id.
at 705. The court’s holding in
Lee
has been
followed consistently in Arizona.
See State v. Vasquez
, 2011
WL 2418629 (Ariz. Ct. App. June 14, 2011) (unрublished);
State v. Schmitt
,
The issue here is whether the conviction under Ariz. Rev.
Stat. § 13-2508(A)(1) as interpreted in
Lee
is a crime of
violence under thе federal Sentencing Guideline for illegal
reentry. U.S.S.G. § 2L1.2(b)(1)(A). The Guideline requires
use or threatened use of “physical force.” The operative
definition is that adopted by the U.S. Supreme Court in
Johnson
.
We must conclude that the conduct involved in Lee , which could be characterized as a “minor scuffle,” did not necessarily involve force capable of inflicting pain or causing serious injury as contemplated by the Supreme Court’s definition of violence in Johnson. The state appellate court did not require there to have been such force in holding that the defendant, by instigating a scuffle with officers, cоuld be guilty of “resisting arrest.” After Lee , an Arizona conviction for resisting arrest cannot be considered categorically a crime *7 of violence under the federal Sentencing Guidelines.
This court has not had any occasion to examine the
Arizona statute since
Estrada-Rodriguez
, decided a year
before
Lee
. The only intervening decision of our court
making any reference to the Arizona statute is
Flores-Lopez
v. Holder
,
Accordingly, this is the first case requiring interpretation
of the Arizona resisting arrest statute since
Estrada-
Rodriguez
. When we decided in 2007, we
did not have the benefit of the Supreme Court’s decision in
Johnson
providing the definition of “physical force” under
federal law, nor did we have the benefit of the state court’s
decision in
Lee
, which clarified the scope of the Arizona
statute with respect to physical contact. We must now
conclude that conviction of “resisting arrest” under Arizona
law is not categorically a crime of violence within the
meaning of federal law, аnd that our decision in
Estrada-
Rodriguez
, to the extent it suggests otherwise, has been
superseded by controlling, intervening authority.
See Miller
v. Gammie
,
Under our law prior to the Supreme Court’s recent
decision in
Descamps v. United States
, 133 S. Ct. 2276
(2013), that conclusion would not end our inquiry. We would
have to remand for the district court to determine whether the
prior сonviction was a crime of violence by looking to
judicially noticeable documents under the modified
categorical approach.
See United States v. Aguila-Montes de
Oca
,
CONCLUSION
Flores-Cordero’s sentence is VACATED and the matter is REMANDED for resentencing without any adjustment under U.S.S.G § 2L1.2(b)(1)(A) for a “crime of violence” conviction.