McKenzy Alfred v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MCKENZY ALII ALFRED, No. 19-72903

Petitioner,

Agency No.

v. A215-565-401

MERRICK B. GARLAND, United States

Attorney General, OPINION

Respondent.

Petition for Review from an Order of the

Board of Immigration Appeals

Argued and Submitted March 3, 2021

Seattle, Washington

Filed September 22, 2021

Before: Johnnie B. Rawlinson and Jay S. Bybee,

Circuit Judges, and Morrison C. England, Jr., *

District Judge.

Opinion by Judge England;

Special Concurrence by Judge England;

Concurrence by Judge Rawlinson

*

The Honorable Morrison C. England, Jr., United States District

Judge for the Eastern District of California, sitting by designation.

2 ALFRED V. GARLAND

SUMMARY **

Immigration

Granting McKenzy Alii Alfred’s petition for review of a

decision of the Board of Immigration Appeals, and

remanding, the panel held that Petitioner’s convictions for

robbery in the second degree and attempted robbery in the

second degree, in violation of Wash. Rev. Code

§§ 9A.56.190, 9A.56.210 and 9A.28.020, do not qualify as

aggravated felony theft offenses under 8 U.S.C.

§§ 1101(a)(43)(G), (U).

The panel concluded it was bound by United States v.

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which a

divided panel determined that when considering the

immigration effect of a Washington controlled substance

conviction, accomplice liability is an implicit and indivisible

component of the conviction that must be considered under

the categorical approach. The Valdivia-Flores majority

further concluded that the accomplice liability mens rea

under Washington law (knowledge) is broader than that

required under federal law (specific intent), and therefore,

there could be no categorical match between the state statute

of conviction and the generic federal definition of a drug

trafficking crime.

Because, according to the Valdivia-Flores majority, it is

well-established that aiding and abetting liability is implicit

in every criminal charge, the panel explained that

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ALFRED V. GARLAND 3

accomplice liability must be considered here. Observing

that the Valdivia-Flores majority never reached the text of

the drug trafficking statute, the panel concluded that its

inquiry ended with accomplice liability as well. To this

effect, the panel concluded that the overbreadth of

Washington’s accomplice liability means there can be no

categorical match to the generic federal offense in this case

either, and Petitioner’s second-degree robbery convictions

cannot constitute aggravated felony theft offenses.

Accordingly, the panel concluded that Petitioner was not

removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Specially concurring, District Judge England, joined by

Judge Bybee, wrote that the panel relied on a theory of

liability that assumes a crime was committed by someone

else when it was undisputed that Petitioner himself—

alone—committed the offense. Judge England also

explained that it is quite possible that, at least in similar

cases, no Washington conviction can be an aggravated

felony at all. In such cases, future panels will never need to

turn to the actual statute of conviction, but the exact same

conduct may be an aggravated felony in a neighboring state.

Judge England observed that Congress could not have

intended such disparities.

Judge England wrote that the approach also puts

attorneys in an untenable spot where they must argue against

positions they would not normally advocate; the drive to

show that state crimes of conviction are overbroad in

comparison to their federal counterparts results in

governments and prosecutors advocating for narrow

readings of state criminal codes while defense counsel

instead argue for expansion. Judge England wrote that all

the confusion left in the wake of the categorical approach

4 ALFRED V. GARLAND

undermines the legitimacy of the third branch of

government.

Concurring in the result, Judge Rawlinson wrote that she

concurred in the result because, and only because, the result

was compelled by the majority opinion in Valdivia-Flores.

However, for the reasons explained in her dissent in

Valdivia-Flores, Judge Rawlinson wrote that the conclusion

that convictions for second degree robbery do not constitute

aggravated felonies makes no sense legally or factually.

COUNSEL

Aaron Korthuis (argued), Northwest Immigrant Rights

Project, Seattle, Washington; Alison Hollinz, Northwest

Immigrant Rights Project, Tacoma, Washington; for

Petitioner.

Jaclyn E. Shea (argued), Trial Attorney; Zoe J. Heller,

Senior Litigation Counsel; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

ALFRED V. GARLAND 5

OPINION

ENGLAND, District Judge:

Petitioner McKenzy Alii Alfred (“Petitioner”), a native

and citizen of the Republic of Palau (“Palau”), petitions for

review of an order of the Board of Immigration Appeals

(“BIA” or “Board”) that found him removable as an alien

convicted of an aggravated felony offense. Because we are

bound by the decision in United States v. Valdivia-Flores,

876 F.3d 1201 (9th Cir. 2017), we conclude that Petitioner’s

convictions for robbery in the second degree and attempted

robbery in the second degree under Washington law do not

qualify as aggravated felonies under §§ 101(a)(43)(G), (U)

of the Immigration and Nationalization Act (“INA”),

8 U.S.C. §§ 1101(a)(43)(G), (U). The petition must

therefore be GRANTED.

I

A.

In December 2011, Petitioner entered the United States

from Palau pursuant to the so-called Compact of Free

Association between the United States and several Pacific

Island territories, including Palau. 1 Approximately seven

1

Under the Compact, the Republic of the Marshall Islands, the

Federated States of Micronesia, and Palau entered into an agreement

with the United States allowing their citizens to enter, work, and

establish residence in the United States without visas. See Compact of

Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986),

amended by Compact of Free Association Amendments Act of 2003,

Pub. L. No. 108-88, 117 Stat. 2720 (2003). Individuals so entering the

United States, however, remain subject to removability on the same

grounds applicable to other noncitizens. See Pub. L. No. 108-88

§ 141(f), 117 Stat. at 2762.

6 ALFRED V. GARLAND

years later, Petitioner pled guilty in Washington state court

to one count of second-degree robbery and two counts of

attempted robbery in the second degree in violation of Wash.

Rev. Code §§ 9A.56.190, 9A.56.210 and 9A.28.020.

According to his plea agreement, Petitioner—by himself—

first tried to obtain cash from a teller at a credit union before

going to a nearby coffee kiosk and taking money from the

barista. He then attempted to carjack a vehicle operated by

another third party. There was no evidence that anyone other

than Petitioner committed these crimes, let alone any

evidence that Petitioner acted as an accomplice to someone

else, or was charged as an accomplice. Petitioner was

eventually sentenced to fifteen-month concurrent terms of

imprisonment on each count.

B.

During Petitioner’s incarceration, the Department of

Homeland Security (“DHS”) issued a Notice to Appear

(“NTA”) alleging that Petitioner was removable under

8 U.S.C. § 1227(a)(2)(A)(iii) because, inter alia, he had

been convicted of an aggravated felony as defined by

8 U.S.C. § 1101(a)(43)(G). Specifically, in this case,

Petitioner had been convicted of a theft or burglary offense

for which the term of imprisonment is at least one year. See

8 U.S.C. § 1101(a)(43)(G). 2

Petitioner admitted the factual allegations in the NTA,

but nonetheless contested removability. At a hearing before

an Immigration Judge (“IJ”), the IJ agreed with the

2

The DHS ultimately added additional charges of removability,

including charges that Petitioner had been convicted of aggravated

felonies involving both violence and moral turpitude. The violence

charges, however, were ultimately dismissed.

ALFRED V. GARLAND 7

Government that Petitioner was indeed removable as having

sustained theft-related aggravated felonies. 3 The IJ’s

findings were subsequently memorialized in writing.

According to the IJ, this circuit’s decision in United

States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014),

controlled. In that case, another panel of this court held that

the same state statute under which Petitioner was convicted

was a categorical match to the INA’s generic offense. Since

Petitioner, like Alvarado-Pineda, had unquestionably been

sentenced to a term of imprisonment of more than a year for

each of his convictions, the IJ determined that he had been

convicted of aggravated felonies. 4

The IJ was unpersuaded by Petitioner’s claim to the

contrary based on the split decision of a later panel in

Valdivia-Flores. There, the panel determined that when

considering the immigration effect of a Washington

conviction for possession of a controlled substance with

intent to distribute, accomplice liability is an implicit and

indivisible component of the conviction that must be

considered under the categorical approach. Valdivia-Flores,

876 F.3d at 1207. The majority concluded that the

accomplice liability mens rea under Washington law is

broader than that required to establish accomplice liability

3

The IJ also sustained moral turpitude aggravated felony charges,

but, as discussed below, the Board based its decision solely on the theft

charges. Accordingly, we also do not consider moral turpitude.

4

In addition to finding second-degree robbery under Washington

law to be an aggravated felony for INA purposes, the IJ further found

that the same categorical match applied to Petitioner’s two convictions

for attempted robbery. Because there is no dispute that the same analysis

applied in both instances, we need not separately address attempted

robbery here.

8 ALFRED V. GARLAND

under federal law. Id. at 1208. This overbreadth, in the

majority’s view, meant there could be no categorical match

between the state statute of conviction and the generic

federal definition of a drug trafficking crime. 5 Id. at 1209.

According to the IJ, Valdivia-Flores was nonetheless

distinguishable because that case involved comparing the

state offense to a federal generic offense defined by statute

as opposed to an offense such as theft, which is defined with

reference to federal case law.

The BIA affirmed, agreeing that the Washington statutes

categorically qualified as aggravated felony theft offenses

for immigration purposes, consequently rendering Petitioner

removable. Petitioner then timely petitioned this court for

review.

II

This court has jurisdiction under 8 U.S.C. § 1252, and

we “review only the BIA’s opinion, except to the extent that

it expressly adopted portions of the IJ’s decision.”

Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019)

(citation omitted). Where the BIA concurs with the

reasoning employed by the IJ’s analysis, both decisions are

reviewed. Garcia-Martinez v. Sessions, 886 F.3d 1291,

1293 (9th Cir. 2018). Otherwise, however, a reviewing court

must “confin[e] [its] review to a judgment upon the validity

of the grounds upon which the [agency] itself based its

5

8 U.S.C. § 1101(a)(43)(B) defines aggravated felony to include

“illicit trafficking in a controlled substance (as defined in [21 U.S.C.

§ 802]), including a drug trafficking crime (as defined in [ 18 U.S.C.

§ 924(c)]).” 18 U.S.C. § 924(c) defines “drug trafficking crime” to mean

“any felony punishable under the Controlled Substances Act (21 U.S.C.

§ 801 et seq.), the Controlled Substances Import and Export Act

(21 U.S.C. § 951 et seq.), or chapter 705 of title 46.”

ALFRED V. GARLAND 9

action.” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).

This means that we “may affirm the BIA based only on ‘the

explanations offered by the agency.’” Toor v. Lynch,

789 F.3d 1055, 1064 (9th Cir. 2015) (quoting Arrington v.

Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008)).

An agency’s legal determinations are generally reviewed

“de novo, subject to established principles of deference.”

Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019).

Factual findings, on the other hand, are reviewed for

substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051

(9th Cir. 2011). Under the substantial evidence standard,

“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B).

III

A.

An alien convicted of an “aggravated felony” at any time

after entering the United States is subject to removal under

the INA. See 8 U.S.C. § 1227(a)(2)(A)(iii). DHS bears the

burden of proving removability by clear and convincing

evidence. 8 U.S.C. § 1229a(c)(3)(A). The INA defines an

aggravated felony offense as, among other things, “a theft

offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one

year.” 8 U.S.C. § 1101(a)(43)(G). The INA additionally

makes it clear that an attempt or conspiracy to commit an

aggravated felony under 8 U.S.C. § 1101(a)(43) is also

deemed an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(U). If any of Petitioner’s three state

convictions qualify as an aggravated felony for INA

purposes, the BIA’s removability decision was proper, and

the other offenses need not be considered. See, e.g., INS v.

10 ALFRED V. GARLAND

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results they

reach.”).

In evaluating whether a state statute qualifies as an

aggravated felony for removal purposes, this court must

“employ a ‘categorical approach’ to determine whether the

state offense is comparable to an offense listed in the INA.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The

categorical approach requires comparison of “the elements

of the statute forming the basis of the defendant’s conviction

with the elements of the ‘generic’ crime” to determine

whether the offense is an aggravated felony. See Descamps

v. United States, 570 U.S. 254, 257 (2013). 6 Those statutory

elements, and not the underlying facts of the particular crime

involved, govern the inquiry into determining whether a

categorical match is present. See generally, Esquivel-

Quintana v. Sessions, 137 S. Ct. 1562, 1567–68 (2017).

The relevant generic offense here, as indicated above, is

“a theft . . . or burglary offense for which the term of

imprisonment [is] at least one year.” 8 U.S.C.

§ 1101(a)(43)(G). The Ninth Circuit has defined generic

“theft” for INA purposes as “a taking of property or an

exercise of control over property without consent with the

criminal intent to deprive the owner of the rights and benefits

of ownership.” Alvarado-Pineda, 774 F.3d at 1202 (quoting

6

While Descamps was decided in the context of the Armed Career

Criminal Act (“ACCA”), both the ACCA and the INA employ the same

categorial approach in analyzing whether a conviction triggers either a

fifteen-year mandatory minimum sentence under ACCA, Mathis v.

United States, 136 S. Ct. 2243, 2247–48 (2016), or removal for

immigration purposes under the INA in accordance with Moncrieffe,

respectively.

ALFRED V. GARLAND 11

United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th

Cir. 2002) (en banc)).

Accordingly, if the required comparison between this

generic federal offense and the Washington statute reveals a

categorical match, then immigration consequences are

triggered and, thus, Petitioner is removable. See Roman-

Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014). If we

conclude, on the other hand, that the state statute reaches

conduct falling outside of the generic federal definition, then

the Washington statute and generic federal offense are not a

categorical match. In other words, if the elements of the state

conviction are broader than the generic federal definition,

then the state conviction is not an aggravated felony, and

Petitioner is not removable on those grounds. Mellouli v.

Lynch, 135 S. Ct. 1980, 1986–88 (2015); Descamps,

570 U.S. at 257; Ramirez v. Lynch, 810 F.3d 1127, 1130–31

(9th Cir. 2016). Thus, in this case, our analysis begins and

ends with Valdivia-Flores. 7

B.

The Washington statute underlying Petitioner’s

conviction provides:

7

The Government’s reliance on Alvarado-Pineda is misplaced

because the impact of accomplice liability on the aggravated felony

analysis was not raised therein. Webster v. Fall, 266 U.S. 507, 511

(1925) (“Questions which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.”); see also Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993) (a court is free to address an issue

on the merits, if that issue has not been “squarely addressed” by prior

precedent). Given that Valdivia-Flores expressly addressed aiding and

abetting liability, it binds us instead.

12 ALFRED V. GARLAND

A person commits robbery when he or she

unlawfully takes personal property from the

person of another in his or her presence

against his or her will by the use or threatened

use of immediate force, violence, or fear of

injury to that person or his or her property or

the person or property of anyone.

Wash. Rev. Code § 9A.56.190. Because, according to the

Valdivia-Flores majority, it is well-established that aiding

and abetting liability is implicit in every criminal charge, it

must also be considered. Valdivia-Flores, 876 F.3d at 1207.

The majority there explained how accomplice liability

differs under the Washington statute as opposed to the

generic federal definition:

Washington’s aiding and abetting statute

state[s]: “A person is an accomplice . . . in the

commission of a crime if . . . [w]ith

knowledge that it will promote or facilitate

the commission of the crime, he . . . solicits,

commands, encourages, or requests such

other person to commit it; or aids or agrees to

aid such other person in planning or

committing it.” Wash. Rev. Code

§ 9A.08.020(3)(a)(i)–(ii) (1997) (emphasis

added). In contrast, under federal law, “to

prove liability as an aider and abettor the

government must establish beyond a

reasonable doubt that the accused had the

specific intent to facilitate the commission of

a crime by someone else.” United States v.

Garcia, 400 F.3d 816, 819 (9th Cir. 2005)

(emphasis added). Therefore, federal law

requires a mens rea of specific intent for

ALFRED V. GARLAND 13

conviction for aiding and abetting, whereas

Washington requires merely knowledge.

Id. 8 The difference between these mentes reae—specific

intent and knowledge—matters, said the majority, because

Washington’s knowledge mens rea 9 captures more conduct

than the federal specific intent mens rea, rendering

accomplice liability in Washington overbroad compared to

its federal counterpart. Valdivia-Flores, 876 F.3d at 1207–

08. In that case, the overbreadth meant that “Washington’s

drug trafficking statute [was] overbroad compared to its

federal analogue, and Valdivia-Flores’s conviction [could]

not support an aggravated felony determination.” Id.

at 1209.

The Valdivia-Flores analysis binds us and requires that

we consider and compare the mentes reae for accomplice

liability here, albeit in reference to a different principal

8

It is unclear how this last statement of the law (i.e., that federal law

always requires specific intent for an aiding and abetting conviction)

comports with the analysis set forth in Rosemond v. United States,

572 U.S. 65 (2014), a case not addressed by the Valdivia-Flores

majority. See, e.g., Bourtzakis v. United States Attorney General,

940 F.3d 616, 623 (11th Cir. 2019) (concluding that based on Rosemond

the Washington aiding and abetting mens rea is not significantly broader

than the federal requirement). Because we are bound by Valdivia-

Flores, however, we make no attempt to reconcile these authorities here.

9

Under Washington law, “[a] person knows or acts knowingly or

with knowledge when: (i) [h]e or she is aware of a fact, facts, or

circumstances or result described by a statute defining an offense; or

(ii) [h]e or she has information which would lead a reasonable person in

the same situation to believe that facts exist which facts are described by

a statute defining an offense.” Wash. Rev. Code § 9A.08.010.

14 ALFRED V. GARLAND

offense. 10 The Valdivia-Flores majority never reached the

text of the drug trafficking statute in their analysis, and so

our inquiry ends with accomplice liability as well. The

overbreadth of Washington’s accomplice liability statute

means there is no categorical match to the generic federal

offense in this case either, and Petitioner’s second-degree

robbery convictions cannot constitute aggravated felony

theft offenses. Petitioner is therefore not removable under

8 U.S.C. § 1227(a)(2)(A)(iii).

IV.

We grant the petition and remand for further

consideration by the agency.

PETITION FOR REVIEW GRANTED,

REMANDED.

10

Respondent’s attempt to distinguish Valdivia-Flores because it

compared a state statute to a federal statute as opposed to what we are

asked to do here—which is to compare a state statute to a generic theft

offense—is unavailing. Respondent has not identified, nor have we

found, any authority to suggest that this is a distinction with a difference.

Both require comparisons between the state statute and an enumerated

offense.

We note that in United States v. Door, 917 F.3d 1146 (9th Cir.

2019), another panel of this court held that Valdivia-Flores did not apply

to a categorical “crime of violence,” and distinguished between

enumerated offense aggravated felonies and “crime of violence”

aggravated felonies for the purposes of sentence enhancement. Because

we are not faced with a “crime of violence” aggravated felony, we limit

our analysis to aggravated felonies that require comparison to

enumerated offenses, like 8 U.S.C. §§ 1101(a)(43)(B), (G).

ALFRED V. GARLAND 15

ENGLAND, District Judge, with whom BYBEE, Circuit

Judge, joins, specially concurring:

Our holding may be compelled by precedent, but it is not

compelled by reason. To the contrary, this case, as have

countless others, “demonstrates the absurdity of applying the

categorical approach.” Quarles v. United States, 139 S. Ct.

1872, 1880 (2019) (Thomas, J., concurring). 1 Not only did

1

Indeed, we are far from the only jurists to decry our continued

reliance on this broken approach. See, e.g., Lopez-Aguilar v. Barr,

948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring) (“I write

separately to add my voice to the substantial chorus of federal judges

pleading for the Supreme Court or Congress to rescue us from the morass

of the categorical approach. The categorical approach requires us to

perform absurd legal gymnastics, and it produces absurd results.”

(citations omitted)); United States v. Escalante, 933 F.3d 395, 406–07

(5th Cir. 2019) (Elrod, J.) (“In the nearly three decades since its

inception, the categorical approach has developed a reputation for

crushing common sense in any area of the law in which its tentacles find

an inroad. . . . Perhaps one day the Supreme Court will consider revisiting

the categorical approach and setting the federal judiciary down a

doctrinal path that is easier to navigate and more likely to arrive at the

jurisprudential destinations that a plain reading of our criminal statutes

would suggest.” (footnotes omitted)); United States v. Williams,

898 F.3d 323, 337 (3d Cir. 2018) (Roth, J., concurring) (“I write

separately because of my concern that the categorical approach . . . is

pushing us into a catechism of inquiry that renders these approaches

ludicrous.”); Cradler v. United States, 891 F.3d 659, 672 (6th Cir. 2018)

(Kethledge, J., concurring) (“Whatever the merits of [the categorical]

approach, accuracy and judicial efficiency are not among them . . . .”);

United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J.,

concurring) (“All good things must come to an end. But apparently bad

legal doctrine can last forever, despite countless judges and justices

urging an end to the so-called Taylor categorical approach.”); United

States v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011) (en

banc) (Bybee, J.) (“In the twenty years since Taylor, we have struggled

to understand the contours of the Supreme Court’s [categorical

approach] framework. Indeed, over the past decade, perhaps no other

16 ALFRED V. GARLAND

we conduct an aggravated felony analysis without ever

addressing the principal statute of conviction, but the record

contains not even a hint that Petitioner might have pled

guilty as an accomplice. In fact, quite the opposite, he very

clearly acted alone. So what we have done today is rely on

a theory of liability that assumes a crime was committed by

someone else when it is undisputed that Petitioner himself—

and himself alone—committed the offense. We are

engaging in an accomplice liability analysis that in any other

context would be utterly irrelevant. 2

More distressing, of course, is the fact that our analysis,

and the analysis set forth in Valdivia-Flores, infects

countless Washington criminal statutes. Indeed, as the

Government argued in that case, it is quite possible that, at

least for aggravated felonies that require comparison of all

elements of the state crime and an enumerated generic

federal offense, “no Washington state conviction can serve

as an aggravated felony at all because of [the] accomplice

liability statute.” Valdivia-Flores, 876 F.3d at 1209. Future

panels, like this one, will never even need to turn to the

area of the law has demanded more of our resources.”). This list is far

from exhaustive. See, e.g., United States v. Scott, 990 F.3d 94, 125–27

(2d Cir. 2021) (Park, J., concurring) (collecting cases). The author of

Valdivia-Flores himself wrote a special concurrence criticizing the

doctrine. Valdivia-Flores, 876 F.3d at 1210 (O’Scannlain, J., specially

concurring) (“I write separately to highlight how [this case] illustrates

the bizarre and arbitrary effects of the ever-spreading categorical

approach for comparing state law offenses to federal criminal

definitions.”).

2

All of this despite the fact that, as Judge Rawlinson observed in

her dissent to Valdivia-Flores, the majority “[c]ited no precedent [for]

skipping over the actual statute of conviction to plug a completely

different statute into the [categorical] analysis.” Valdivia-Flores,

876 F.3d at 1213.

ALFRED V. GARLAND 17

actual statute of conviction to determine one’s status as an

aggravated felon. Id. at 1208–09. Yet the exact same

conduct may qualify as an aggravated felony in a

neighboring state.

Congress “could not have intended vast . . . disparities

for defendants convicted of identical criminal conduct in

different jurisdictions.” Mathis, 136 S. Ct. at 2258

(Kennedy, J., concurring). The most basic logic tells us this

cannot be right but, as we have seen countless times, the

categorical approach is untethered from common sense.

Absurd results are far from an anomaly. 3

3

See, e.g., Quarles, 139 S. Ct. at 1880 (Thomas, J., concurring)

(“The categorical approach relies on a comparison of the crime of

conviction and a judicially created ideal of burglary. But this ideal is

starkly different from the reality of petitioner’s actual crime: Petitioner

attempted to climb through an apartment window to attack his ex-

girlfriend.”); Lopez-Aguilar, 948 F.3d at 1149–50 (Graber, J.,

concurring) (“As the majority opinion explains, Oregon Revised Statutes

section 164.395 is not a categorical match for the generic theft offense

because it incorporates consensual takings. But I can conceive of very

few scenarios in which a defendant could use, or threaten the immediate

use of, physical force against a third party while carrying out a taking

that was consensual from the property owner’s perspective.”); United

States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019) (Quattlebaum, J.)

(“Through the Alice in Wonderland path known as the ‘categorical

approach,’ we must consider whether Battle’s assault of a person with

the intent to murder is a crime of violence. While the answer to that

question might seem to be obviously yes, it is not so simple after almost

30 years of jurisprudence beginning with Taylor.”); United States v.

Burris, 912 F.3d 386, 407 (6th Cir. 2019) (en banc) (Thapar, J.,

concurring) (“A casual reader of today’s decision might struggle to

understand why we are even debating if ramming a vehicle into a police

officer is a crime of violence. The reader’s struggle would be

understandable. The time has come to dispose of the long-baffling

categorical approach.”); Ovalles v. United States, 905 F.3d 1231, 1253

18 ALFRED V. GARLAND

Our current approach also puts attorneys in an untenable

spot—whether they are litigating regarding immigration or

criminal consequences—where they must argue against

positions they would not normally advocate. The drive to

show that state crimes of conviction are overbroad in

comparison to their federal counterparts results in

governments and prosecutors advocating for narrow

readings of state criminal codes while defense counsel

instead argue for expansion. On this point, Judge Owens

most aptly described this mad transposition in the context of

federal sentencing:

Here, one lawyer zealously argues that

Washington law criminalizes a “conspiracy

of one,” while the other lawyer strenuously

contends for a narrower reading. Surely, the

prosecutor is the one swinging for the fences,

and the defense attorney the one pushing for

lenity. In state court, you would be right. But

we are in federal court, so a defense attorney

ethically must play the role of the aggressive

prosecutor, pushing for the most expansive

reading of state law possible. She succeeded:

she has established that the state law is

broader than the federal law, so there is no

categorical match, which favors her client.

(11th Cir. 2018) (en banc) (Pryor, J., concurring) (“How did we ever

reach the point where this Court, sitting en banc, must debate whether a

carjacking in which an assailant struck a 13-year-old girl in the mouth

with a baseball bat and a cohort fired an AK-47 at her family is a crime

of violence? It’s nuts. And Congress needs to act to end this ongoing

judicial charade.”); United States v. Doctor, 842 F.3d 306, 313 (4th Cir.

2016) (Wilkinson, J., concurring) (“[T]he categorical approach can serve

as a protracted ruse for paradoxically finding even the worst and most

violent offenses not to constitute crimes of violence.”).

ALFRED V. GARLAND 19

But this role reversal confirms that this is a

really, really bad way of doing things.

Defense attorneys should not be forced to

argue for expanding criminal liability to

benefit their clients, but in the Taylor Upside

Down, that is what necessarily happened

here.

Brown, 879 F.3d at 1051 (Owens, J., concurring). Only in

the “Upside Down” would this make any sense.

All of the confusion left in the wake of the categorical

approach undermines the legitimacy of our third branch of

government. We know that bad facts make bad law. But in

the case of the categorical approach, bad law makes even

worse law time and again. “Instead of wasting more

resources and interjecting more uncertainty into our . . .

decisions, either the Supreme Court or Congress should junk

this entire system.” Id.

RAWLINSON, Circuit Judge, concurring in the result:

I concur in the result reached by the majority because,

and only because, the decision reached by the majority is

compelled by the majority opinion in United States v.

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017). However,

for the reasons explained in my dissent to the majority

opinion in Valdivia-Flores, the conclusion that convictions

for second degree robbery do not constitute aggravated

felonies makes no sense legally or factually. I guess when it

comes to application of the Supreme Court’s contrived

categorical approach, in the words of my dearly departed

Mama Louise: common sense ain’t all that common.