by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s prior California conviction for assault with a deadly weapon under Cal. Penal Code § 245(a)(1) does not qualify as a “crime of violence” for purposes of a career offender sentence enhancement under the U.S. Sentencing Guidelines (“Guidelines”) § 4B1.2(a)(1). In so holding, the Court expressly overruled its prior precedent that § 245(a)(1) convictions are crimes of violence as “clearly irreconcilable” with Borden v. United States, 593 U.S. 420 (2021).

Background

Jesus Ramiro Gomez pleaded guilty in the U.S. District Court for the Central District of California to distribution of methamphetamine after selling drugs to an undercover agent. A presentence report prepared by the probation office concluded that Gomez was a career offender and therefore eligible for an enhanced sentence.

The career offender enhancement operates like a three-strike rule: if a defendant has three convictions for controlled substance offenses or “crimes of violence,” the enhancement applies. § 4B1.1. The probation office concluded that Gomez qualified for this enhancement based on his current conviction, a prior conviction for possession of cocaine for sale, and a prior § 245(a)(1) conviction. Gomez did not object to the enhancement in the District Court.

This enhancement increased Gomez’s base offense level from 27 to 34, resulting in an increase in the advisory sentencing range from 130-162 months to 262-327 months. The Government sought a three-level downward variance and recommended that Gomez be sentenced to 188 months in prison. The District Court followed this recommendation.

Gomez timely appealed, arguing for the first time that his prior § 245(a)(1) conviction does not qualify as a crime of violence and that his career offender enhancement is unlawful.

Analysis

The first issue the Court had to resolve was the correct standard of review. Typically, the appellate court reviews de novo whether a defendant’s prior conviction qualifies for a crime of violence, United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), but the Government argued that plain error review should apply because Gomez did not object to the enhancement at sentencing.

However, the Court stated that it may apply de novo review, in its discretion, to unpreserved errors if the “appeal presents a pure question of law and the opposing party is not prejudiced by the defendant’s failure to object.” United States v. Eckford, 77 F.4th 1228 (9th Cir. 2023). The Government did not dispute that Gomez’s case presented a pure issue of law and that it was not prejudiced by his failure to object but nonetheless contended that the Ninth Circuit’s rule permitting de novo review of pure legal issues had been implicitly overruled by the U.S. Supreme Court decisions in Davis v. United States, 589 U.S. 345 (2020) (per curiam), and Greer v. United States, 593 U.S. 503 (2021).

In Davis, the Supreme Court invalidated the Fifth Circuit’s practice of “declining to review certain unpreserved factual arguments” under any standard of review, including plain error. However, the Court rejected the Government’s argument. It explained that “[b]ecause Davis only addressed whether unpreserved factual issues are subject to plain error review or no review at all, its holding is not clearly irreconcilable with our precedent holding that we may review legal, not factual, issues de novo.”

In Green, the Supreme Court rejected a defendant’s attempt to avoid plain error review based on the “futility” exception, i.e., that it would have been pointless or futile to object in the District Court based on then-controlling precedent. The Court rejected the futility exception as being inconsistent with its precedent and the plain language of Federal Rule of Criminal Procedure 51. According to the Court, Green does not undermine its rule permitting de novo review of pure legal issues because the Government failed to cite “any Supreme Court case which would have come out differently had the Supreme Court reviewed a pure question of law de novo instead of for plain error. Nor does the government identify any inconsistency of the kind identified in Greer between our approach and the federal rules.” Thus, the Court reviewed Gomez’s case under the de novo standard of review.

The Court next turned to the question of whether Gomez’s prior California conviction for assault with a deadly weapon qualified as a crime of violence under the Guidelines. Courts employ the “categorical approach” to determine whether a defendant’s prior conviction qualifies as a crime of violence. Taylor v. United States, 495 U.S. 575 (1990).

In Borden, the U.S. Supreme Court clarified this approach, ruling that “the facts of a given case are irrelevant,” and instead, the focus is on “whether the elements of the statute of conviction meet the federal” crime of violence definition. This means that the least culpable act criminalized under the statute for the prior conviction must involve the level of force described in the federal crime of violence definition. Borden. If the statute for the prior conviction criminalizes conduct less culpable than the federal definition, “the statute is not a categorical match,” and it does not qualify as a crime of violence, the Court explained. Begay.

The Guidelines define a crime of violence as one that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 4B1.2(a)(1). This is known as the “elements clause,” Begay, and the Supreme Court has held that it requires proof that the defendant’s underlying criminal conduct was more than accidental or negligent. See Leocal v. Ashcroft, 543 U.S. 1 (2004). In Borden, the Supreme Court expanded on this holding, determining that the elements clause requires a mens rea, or mental state, greater than recklessness. Instead, the elements clause requires that the defendant acted with “knowledge” that his conduct will cause harm. Borden.

As the Court explained, Borden clarified that “the elements clause is only satisfied by crimes that require uses of force with a mens rea more culpable than simple recklessness. Put another way, if a person can be convicted under a criminal statute by using force against another with only the ‘conscious disregard’ of a ‘substantial and unjustifiable risk,’ the crime is not a crime of violence.” Quoting Borden (cleaned up).

Thus, the question in Gomez’s case was whether his prior California assault with a deadly weapon conviction satisfied this standard. This determination rested on California cases interpreting the relevant state statute. See Johnson v. United States, 559 U.S. 133 (2010). The California Supreme Court has long held that a § 245(a)(1) conviction “does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.” People v. Williams, 29 P.3d 197 (Cal. 2001). It merely requires an intent to do the act that results in harm. Id. The Court noted that this is contrary to both Leocal and Borden because an intent to do an act that results in harm is not the same as “intent to apply force to another person.”

Thus, the Court concluded that Gomez’s § 245(a)(1) conviction is not a crime of violence under § 4B1.2(a)(1) because “the least culpable conduct covered by the California assault statute does not require an intent to apply force, knowledge that an action will cause force to be applied to another, or even subjective awareness of a risk that such force will result.” Similarly, the conviction is not a crime of violence under § 4B1.2(a)(2), which specifies that certain enumerated offenses including aggravated assault automatically qualify as crimes of violence. “But aggravated assault under the enumerated offenses clause requires a mens rea greater than extreme recklessness,” the Court stated. United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015). Thus, the Court held that because § 245(a)(1) does not prohibit “uses of force with a mens rea greater than recklessness, let alone extreme recklessness,” it does not constitute a crime of violence under § 4B1.2(a)(2).

Conclusion

Accordingly, the Court reversed Gomez’s sentence based on the career offender enhancement and remanded for resentencing consistent with its opinion. See: United States v. Gomez, 115 F.4th 987 (9th Cir. 2024).

Writer’s note: The Court declared that its prior cases holding that § 245(a) convictions are comparable to a crime of violence under federal law are “clearly irreconcilable” with Borden and thus no longer controlling. Therefore, the following Ninth Circuit cases are no longer good law, at least to the extent they hold California assault convictions are crimes of violence under § 4B1.2(a)(1): United States v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018); United States v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015) (per curiam); United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009); United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. 2009) (per curiam). Federal prisoners whose sentences were enhanced based on prior § 245(a) convictions should consult an attorney promptly to see if the Gomez decision might provide an avenue for resentencing.  

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