UNITED STATES of America, Plaintiff-Appellee, v. Margarito FLORES-CORDERO, Defendant-Appellant.
No. 12-10220.
United States Court of Appeals, Ninth Circuit.
July 25, 2013.
Argued and Submitted June 13, 2013. Withdrawn from Submission Resubmitted July 12, 2013.
723 F.3d 1085
SCHROEDER, Circuit Judge
John S. Leonardo, United States Attorney, District of Arizona, Christina M. Cabanillas, Appellate Chief, Matthew C. Cassell (argued), Assistant United States Attorney, Tucson, AZ, for Plaintiff-Appellee.
Before: MARY M. SCHROEDER and CONSUELO M. CALLAHAN, Circuit Judges, and SARAH S. VANCE, Chief District Judge.*
OPINION
SCHROEDER, Circuit Judge:
The issue in this sentencing appeal is whether the defеndant‘s prior Arizona con-
BACKGROUND
Defendant-Appellant Margarito Flores-Cordero pled guilty to illegal reentry in violation of
The existence of a рrior 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 inеligible for certain forms of discretionary relief from removal including asylum.
In all of the federal contexts, the definitions rеquire application of “physical force” for a prior crime to be considered violent. See
Flores-Cordero‘s prior Arizona conviction was for resisting arrest in violation of
A. A person commits resisting arrest by intentionally preventing or attempting to prevent a рerson reasonably known to him to be a peace offi-
cer, acting under color of such peace officer‘s official authority, from effecting an arrest by: 1. Using or threatening to use physical 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 оf 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 v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), decided three years after our decision in Estrada-Rodriguez. The Court in Johnson was concerned with whether a prior state court conviction for battery was a “violent felony” for purposes of the ACCA. Id. at 135, 130 S.Ct. 1265. The Court stressed in Johnson that while interpretation of the federal statute is a question of federal law, the nature of a prior state conviction is determined by state law. Id. at 138, 130 S.Ct. 1265. The Court said that what constitutes a “violent felony” within the meaning of the ACCA is an issue of federal law, but that in determining the meaning or scope of the crime of conviction, the federal courts are bound by the state courts’ interрretations of state criminal statutes. Id. The Court then adopted as a matter of federal law the Seventh Circuit‘s definition of “physical force” that required “force capable of causing physical pain or injury to аnother person.” Id. at 140, 130 S.Ct. 1265 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003)). That definition applies to the Sentencing Guideline at issue here. See United States v. Villavicencio-Burruel, 608 F.3d 556, 561-63 (9th Cir.2010).
The Court in Johnson had before it a Florida conviction for battery, and it therefore looked to Florida law to determine what conduct was сriminalized under the state statute. 559 U.S. at 138, 130 S.Ct. 1265. Because under Florida law, battery included any touching, no matter how slight, the Court held that the Florida battery conviction was not a violent felony within the meaning of the federal statute. Id.
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.
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 Estrada-Rodriguez, the Arizona сourts decided cases involving resisting arrest where there was physical contact between officers and arrestees. The leading case is State v. Lee, 217 Ariz. 514, 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
The issue here is whether the conviction under
We must conclude that the conduct involved in Lee, which could be characterized as a “minor scuffle,” did not necessarily invоlve 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, could be guilty of “resisting arrest.” After Lee, an Arizona conviction for resisting arrest cannot be considered categorically a crime of violence under the federal Sеntencing 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, 685 F.3d 857 (9th Cir.2012). That case, however, was about whether a California statute qualified as a crime of violence. Distinguishing Estrada-Rodriguez, we held that the California statute was not categorically a crime of violence because it encompassed nonviolent conduct. Id. at 865. Flores-Lopez does not affect our ruling here because we were not dealing with a conviction under Arizona law, and therefore had no occasion to look to Arizona law to define its scope, as under Johnson, we are required to do here.
Accordingly, this is the first case requiring interpretation of the Arizona resisting arrest statute since Estrada-Rodriguez. When we decided Estrada-Rodriguez 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, and that our decision in Estrada-Rodriguez, to the extent it suggests otherwise, has been superseded by controlling, intervening authority. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). We hold that Flores-Cordero‘s prior conviction fоr resisting arrest in violation of
Under our law prior to the Supreme Court‘s recent decision in Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 719 L.Ed.2d 482 (2013), that conclusion would not end our inquiry. We would have to remand for the district court to determine whether the prior conviction was a сrime of violence by looking to judicially noticeable documents under the modified categorical approach. See United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), overruled by Descamps, 133 S.Ct. at 2283. The Supreme Court, however, has now decided Descamps and has held that the modified categorical approach should not be aрplied when the statute of prior conviction is indivisible. Descamps, 133 S.Ct. at 2293. Use of the modified categorical approach is appropriate only when the state statute lists multiple, alternative elements, and the federal cоurt is attempting to determine the elements implicated in a particular defendant‘s violation of the statute. Id. at 2285. The government suggests in a supplemental brief addressing Descamps that we could remand so the district court may apply the mоdified categorical approach to determine under which subsection of
CONCLUSION
Flores-Cordero‘s sentence is VACATED and the matter is REMANDED for resentencing without any adjustment under