Legal Case Summary

My name is Michael Archmuron as mentioned and I'm here. They're attorney representing mr. Mario via Briefly into the facts mr. Avia was arrested in March 2012 for assault and Making threats communicating threats pursuant to an investigation regarding his background it was determined that he had been deported previously That deportation was pursuant to being convicted in California That when the prior convictions in California involved what is In violation of California penal code 459 and 460 California described that as a burglary and the violation of court occurred when someone would actually go into into a building inhabited or a business and I'm summarizing with the intent In order to commit a grand theft or petty theft or any felony and that would make them guilty of burglary if it was a dwelling then in this case mr. V is case it was It would be a violation of 460 as well

. They just simply turned the 459 into a first-degree offense because the building that was injured was dwelling Initially whenever he was being sentenced and he was looking at a 16-level increase looking at what a 16-level increase under the guidelines to l 1.2 Of re-entering illegally pursuant to committing an aggravated felony of burglary I objected to that Unbeknownst to me at the same based upon the fact it wasn't a burglary that Statue 459 did not meet the definition of a generic burglary 460 or 60 well if I may it was for it apparently is 4.59 But is it goes to for ultimately 460 because it was a dwelling in other words 459 says in California It was in a precinct investigation report The PSR says yes, sir. All right That he was burglary of a dwell ultimately yes, sir I Go ahead

. I'm sorry and that's fine. There was some confusion at first They they they considered it was a armed robbery because the conviction was so far so long ago That was correct that we've had I think up to the six PSRs in this case Because of all the different amendments and we discovered before sinacing that everybody agrees this is a Blind categorical approach here. Yes, Your Honor. No issue about the modified categorical approach No, you're and that's we're getting it to California burglary Statue and Decide whether it's an aggravated felony Correct exactly that was my objection under when the first came out of 16 level increase You could not apply a modified categorical approach you had to look at this the elements and Our position was the missing element with a burglary generic burglary you have to have and basically Breaking or entering into a building with the intent to commit offense therein so here what To get the enhancement that he got it had to be a crime of violence which has to Well one option there is there has to be a substantial risk that physical force was used for night level increase Right, and I thought that the California courts had specifically used that language in defining burglary in California I'm sorry I misunderstood I said I thought the California courts had specifically used that language or language almost Denicle or what appears in the sentencing guidelines to describe Well, if I understand the question correctly the California burglary does have a missing element of the Breaking or the end deal unlawful entry Well, that's for that's that with fit under a generic version of right right of burglary right We're going under the alternate version and the guidelines well The court and the camps and that's and that's where I hinge everything because it just came out and that changed everything in our sentencing and as as your honor you just pointed out yes, sir The question then comes up

. Well, what about this residual clause? Mr. This residual clause is a different residual clause correct You as opposed to what was found and what was the case in when you didn't they camp in the one in front of us Different residuals different statute or different guidelines isn't it? Our position would be it's not it's more so 16 level one house Yes, sir, or arm career criminal it's correct under 924 E. Yes, sir So here we're we're here for eight and there's a lower or a different standard for that right under 18 USC Substation 16 this is an on career criminal no, sir in this reentry Yes, sir, and it's being aggravated felony. Yes, sir, which is defined as a crime of violence under the guidelines Right under 18 well and that and that crime of violence definition ends up with the residual clause Yes, sir, it's a different residual clause isn't it isn't it the residual clause under the reentry guidelines Not under on career criminal guidelines Right and had the four circuits said the law has to arm career doesn't apply to this Well the de camps being again the camps the camp wasn't this provision was it no Our position would be is it's the same it's not the same statute not the same one's 924 E Do you think the camps controls this yes, sir? But they specifically said in a footnote they the spring court for Justice Kagan said we aren't addressing Discipline today, right It has not been addressed and that's when I did the brief obviously I couldn't find anything and there's nothing to my knowledge Subsequent to that but it drawing the analogy is what I can say is that there is a digital clause is I understand it for a crime of violence or this enhancement Is an offense that a Bites nature involves a substantial risk the physical force against personal property Maybe use while you're committing the offense and there are California Supreme Court decisions that say Burgerly involves quote danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape As well as danger that the occupants will an anger or panic react to the invasion inviting more bant more violence Doesn't that definition from the California Supreme Court fit Handing glove under the definition and the guidelines or federal application is contrary to the camps California and But I thought you just told us that this definition that we're using for this case for this lower Sensing enhancement is not one that was involved in the camps It's not a burglary first of all California looks at as a burglary the problem is it's not a burglary because it's got a missing element The missing element isn't whoever breaks into a building is guilty of a bribery

. We're not looking at as a generic. I know but You have to look at whether it's regular not our position is California section 4 59 is not a burglary It's kind of the flip side of of the Taylor case where the Supreme Court said we don't care what you call the statute if the elements contained in generic burglary fit it's a burglary whether you call it a break in entering or you call it a burglary the Camps is the flip side of that they're saying our position is we don't care if you call it a burglary if it does it meet Doesn't have the elements of generic burglary. It's not a burglary But that that's it and they camp I just can't put my hands on the case. Doesn't that deal with what a burglary is? Exactly

. Does it does it deal with the residual clause? Well the problem is did they deal with the top question not the bottom question both because the missing element is not The lack of intent or the lack of being in a building the missing element is forced entry camp's burglary was the common law burglary Which was a break in an injury Isn't that right? Well, it was it was virtually it wasn't a stat it's statutorily defined But it's a breaking it every it was a breaking an It does not require that but this one doesn't that's what you're getting at yes, sir This is an entry without breaking your saying Right the 459 does not require a break, but I think I you show you have you show you right on day camp You said they camp applies to the residual clause as well. No, sir Well, yes, it does. I mean there's a residual clause in 924 E Did the supreme court say that their reasoning and they camp Applied to the residual clause that they consider the residual clause and they camp they did I always said they did because they referred to the crime as being almost like a shoplifting Why don't you say the footnote number six in that decision and they camp which says the government has Forfeited and alternative argument that 459 qualifies as a predicate offense under ACC a residual clause The the the Supreme Court said that's not even being argued in this case I think I can't speak for the government. I can probably well I can speak for I can speak with screen Right, I mean she just said they didn't argue why I didn't they in our position would be if they had a argument No, no, no, no, no, no, no, no, no, no, no, no, no, they forfeited that in other words the court's not going to consider that What the court and they camp I don't say a day camp applies because they camp is to the top of what is the burglary It does not involve the residual clause spring court says that Absolutely clearly and then in their four-circuit law that says even if we were to look at day camp We don't consider it because we don't consider under the reentry guidelines here in the four-circuit We don't consider the ACCA anchor and career criminal Well if you don't have dead in the four-circuit say that Do you know I'm not familiar with that you're on around you don't you see me? I'm not familiar with that I understand there may not If I make this is apparition sore case okay And it says I'm just going to read it to you and it says This the organ also fails the government's argument for a simple reason Wardric and Jenkins involve different clauses of different sentencing provisions Both cases involve the residual clause which categorize prior state offenses as federal sentencing predicates if they criminalize quote Conduct that presents a serious potential risk of physical injury to another This language appears in the arm career criminal act and the career of fender guidelines But it is not in the reentry guideline that is why Wardric and Jenkins are irrelevant to this case If that's I mean bring you the lawyer the court and if that's the way it stands Still without the break without the forced entry you don't have a crime of violence And even under the 18 u

.s.c Which I think 16 opposition It's clear that what he was convicted that didn't require a forced entry right so they're yes, sir. Yes, sir So there's none of that from me how do we know that Because 459 just says just see who enters into the building is guilty and just kegans was big for 60 well That's just a dwelling it didn't add the element to be a first degree burglary under 460 It didn't add the additional element of break and entering it just simply said as a dwelling Then it becomes a higher degree that does nothing to say The california is just says the entering right yes, sir And this in 460 doesn't add that add the breaking into it is either but then What did the indictment say Of california indictment do we know oh it was just simple possession of a fire and body We have a look at that under the categorical approach just the categorical approach yes, sir We are really out of the look at the california indictment Yes, sir under the categorical approach yes, sir But don't we look at what california says about its own law to decide whether or not this fits in the reentry guideline Well, not that but it's the crime of violence under 16 any other offense that is a felony and that by its nature Invas is a substantial is that physical force against the personal property of another may be used No, sir because they're looking at from a different standpoint What are they looking at? We don't we don't If he's convinced of a felony in california wouldn't you look at the california law? Yes, sir Why won't we look at and in that california law In the final definition of that given to it by the Supreme Court in california No, sir. I think the five definitions by the US Supreme Court and the camps he said it is not a crime of violence categorically It's not a burglary

. Yeah, but california is calling it a burglary and it's not but I mean the Supreme Court said repeatedly that In terms of what a state law means Under that state's law that's determined by the high school of that state If it's they can call it a burglary, but when it comes to the fine But they also said that entry into and the haven't the habitat structure is most dangerous and most likely to cause personal injury Justifying a summit of the higher degree of burglary law california case But so which they can do I mean they can call it anything and have higher degree, but But it can't be applied in the federal You think it has to be do you think that this rides on the definition of burglary? As the Supreme Court and the camps yeah, but applying it as far as naggar veta fellonia, sir I know, but they camp didn't look at the residual clause and a statute that's similar, but doesn't control And that one in this case wouldn't rise or fall on that our position still would be the residual clause would not apply No matter in this case because you don't have the requirement of a forced entry It cannot be considered in any shape reform as a burglary California law seems to say that whether there's a forced or injured not to dispose of it Under the residual clause That if you go into You commit a burglary without the forced entry that's still dangerous Well, they can say that but I don't think all of eyes under 16 B right But it's not a burglary language of their cases seem to fit under 16 B substantial risk of whatever the language is The only problem with them your honor is that they fell to in the statute to say that that it criers a forced entry And you read lights on there. I'm sorry. Oh, if I may just and I don't I can entertain more questions That our position summary is that the element missing is the forced entry and therefore How are we shape it? There is no it's not a crime of violence and therefore you're using every but all time Oh, I don't know am I I'll let you I'm sorry, Your Honor Um, I would also make mention that I apologize and I lost track of my time then Um that the reason why this is important in mr. Avis case also is because the second issue was under 3553 arguments that the court Uh, committed procedural air and subs of air because whenever we made our arguments under 3553 A is mentioned in our Our statute

. I mean our statement of facts about mr. Avis under his characteristics and his rehabilitative approach Um That he took rehabilitation efforts took classes in in jail and The court did not address those when he sentenced him to 37 months. He simply said Regarding that he didn't think he was being deterred his history focused on his criminal history If the eight level does not apply in this case that would make the district court sentence Considerably higher a considerable variance beyond the guidelines You explained that in your brief right. Yes, we are and therefore the it would not waste in listening one mr

. Miller. Thank you. I apologize mr. Miller What's the government's position on this to camps point Your Honor William Miller on behalf of the United States The government's position on the camp is that it has no application in this case that's where you didn't brief it Uh, that footnote six at the court identified earlier

. It makes it explicitly clear that You didn't even miss that you brief did you I didn't mention they mentioned their brief and you didn't even Come back on and that's what we spend that spend a commuero and perhaps I should put as a Supreme Court case on on the Almost the same statute in California involving burglary It's a case addressing I mean I'm I'm interested in how can be distinguished it can be distinguished because it's a case addressing Um, when you get to look at shepherd approved documents for the purpose of determining whether or not the crime is generic burglary Which is the first part of the definition the case has nothing to say about our Question which is whether or not it qualifies under the residual clause? We're not here. Are we concede the California burglary is not generic burglary The proper inquiry Under the residual clause though is whether in the ordinary case And this comes straight from James the proper inquiry is whether the conduct encompass by the elements of the fence In the ordinary case presents a serious potential risk of entry to another and that's just there's just this California conviction he has require a forced entry No, sir, and that's why it's not generic burglary But but he says The defendant's attorney says since it doesn't require a forced entry That takes it out I'm being a crime of violence now You don't agree with that. No, sir. My response to that what makes the crime of violence My response to that is that in the ordinary case a violation of The residential burglary statute because it does require the element of a dwelling would present Similar risks to generic burglary now I draw the courts attention to the James case I was going to go in the house inhabited house without breaking but there's danger still there Yes, your honor in James which was about attempted burglary California courts said that basically Yes, sir, that's right judge AG and that was a California Supreme Court They told us what the risks associated with their usual burglary Situation were and you know your honor is summarized those a moment ago, but they are identical to the risks that we rely on with California courts said It's they it's It's a crime of violence under 16 B of title 18 Correct Yes, your answer makes it a crime of violence under the guidelines It makes it a crime of violence for purposes of that eight level enhanced and which makes it an aggravated felony Yes, your honor and The illegal reentry guidelines are a little funny because they have two different crime of violence They need definitions of crimes of violence or in the federal code far too many I'm in far too many I agree with that and there's two and have any of them or aggravated felonies or that that At terms thrown around a lot right there's two just in a legal entry and as mr. Archimbron summarized the 16 level enhancement has a crime of violence division where there's no residual And the 16 level enhance puts what the spring court was dealt with and The camp they were dealing with the arm career criminal act, but it functions the same way as the crime of violence definition here for the 16 level You think the camps to be worth a footnoter too And I apologize for not drawing those things really Right and long opinions about the California burglary stuff Um, it's just clearly based excuse me, Your Honor. It's clearly based on that footnote Just not applicable here that the did you think it was so obvious nobody would even Batham that it would be you know, I certainly wish now that I had cited the camps you're on But it is clearly it is clearly Doesn't guide our analysis in this case which is to look at the ordinary case and determine what the risks are And as the California Supreme Court has said they are the same risks Um as generic burglary and that's the conclusion that's been read really question Here that the categorical approach applies everybody agrees with that right it's not the category and under the categorical approach We have to look at what the out the statute the elements of the offense. Yes, Your Honor. You look at the risks present There's no disagreement as to what the statute says or what the elements of the offense are Not just our knowledge is there any is the indictment from California in here? Do we know what he was charged with or allowed to look at that? Uh, the indictment doesn't come into the analysis here

. Archimbron summarized the 16 level enhancement has a crime of violence division where there's no residual And the 16 level enhance puts what the spring court was dealt with and The camp they were dealing with the arm career criminal act, but it functions the same way as the crime of violence definition here for the 16 level You think the camps to be worth a footnoter too And I apologize for not drawing those things really Right and long opinions about the California burglary stuff Um, it's just clearly based excuse me, Your Honor. It's clearly based on that footnote Just not applicable here that the did you think it was so obvious nobody would even Batham that it would be you know, I certainly wish now that I had cited the camps you're on But it is clearly it is clearly Doesn't guide our analysis in this case which is to look at the ordinary case and determine what the risks are And as the California Supreme Court has said they are the same risks Um as generic burglary and that's the conclusion that's been read really question Here that the categorical approach applies everybody agrees with that right it's not the category and under the categorical approach We have to look at what the out the statute the elements of the offense. Yes, Your Honor. You look at the risks present There's no disagreement as to what the statute says or what the elements of the offense are Not just our knowledge is there any is the indictment from California in here? Do we know what he was charged with or allowed to look at that? Uh, the indictment doesn't come into the analysis here. There's no dispute Is the indictment in the record? Let me ask you that part. No, Your Honor. So we don't know what the indictment says So with with with if we're here would be would we be allowed to look at it under the categorical approach? It would not we would not be able to and that's what the case we look at the fact he was convicted of First degree Cali first degree California burger. He look at the statute look at the elements How does it measure up with 16 B? Exactly

. There's no dispute Is the indictment in the record? Let me ask you that part. No, Your Honor. So we don't know what the indictment says So with with with if we're here would be would we be allowed to look at it under the categorical approach? It would not we would not be able to and that's what the case we look at the fact he was convicted of First degree Cali first degree California burger. He look at the statute look at the elements How does it measure up with 16 B? Exactly. That's it. It's well Well isn't the elements as the state has defined those elements. Yes, Your Honor I mean the language they use is the judicial gloss of the of the court right of the California Supreme because and it isn't It true that the state just for what is worth as an aside the state Supreme Court other than some due process All of you miss something they can decide those hellos me whatever they say they mean and most they said that correct Yes, Your Honor and this court would but it's elements with that judicial gloss in other words and your argument is It is no question on the California law is defined by California That this falls within 16 B Or whatever number the the Supreme Court of California has done our work for us Which is to define the risk maybe maybe they cited they can Which is to define the risk of a usual burglaries. Have they yeah, have they had a California state court spring court had a case sent to camp If you know I don't know that they have I don't know that that would apply to their analysis really federal courts had this California burglarie statute sent to Canada and I've looked for that and I haven't I haven't found any I will say that the four circuits that looked at this issue Prior to the camp all came out the same way which is to say that First degree of California burglarie qualifies under the residual clause Be it under the arm career criminal act or here and their 16 B um If there are no additional questions other than on my failure to cite the camp with respect to the first issue I'll just briefly touch on the second issue Your Honor and the standard there is whether or not um This court can conduct a meaningful review um as to the reasons for the sentence imposed and here The district court although it was a brief summary it did show um The basis for the court's decision to sentence at the high end of the guidelines and that was based on the history and characteristics of the defendant in this case Which as the district court summarized is a pattern of illegally reentry illegally entering the country and committing violent crimes starting with um the salt with a weapon Where you were you I don't know where you the trial counsel in this case I handled the sentencing Your Honor then I'm just wondering why you wouldn't suggest to the court Ask them to make a little more explicit little more detail you may be right

. That's it. It's well Well isn't the elements as the state has defined those elements. Yes, Your Honor I mean the language they use is the judicial gloss of the of the court right of the California Supreme because and it isn't It true that the state just for what is worth as an aside the state Supreme Court other than some due process All of you miss something they can decide those hellos me whatever they say they mean and most they said that correct Yes, Your Honor and this court would but it's elements with that judicial gloss in other words and your argument is It is no question on the California law is defined by California That this falls within 16 B Or whatever number the the Supreme Court of California has done our work for us Which is to define the risk maybe maybe they cited they can Which is to define the risk of a usual burglaries. Have they yeah, have they had a California state court spring court had a case sent to camp If you know I don't know that they have I don't know that that would apply to their analysis really federal courts had this California burglarie statute sent to Canada and I've looked for that and I haven't I haven't found any I will say that the four circuits that looked at this issue Prior to the camp all came out the same way which is to say that First degree of California burglarie qualifies under the residual clause Be it under the arm career criminal act or here and their 16 B um If there are no additional questions other than on my failure to cite the camp with respect to the first issue I'll just briefly touch on the second issue Your Honor and the standard there is whether or not um This court can conduct a meaningful review um as to the reasons for the sentence imposed and here The district court although it was a brief summary it did show um The basis for the court's decision to sentence at the high end of the guidelines and that was based on the history and characteristics of the defendant in this case Which as the district court summarized is a pattern of illegally reentry illegally entering the country and committing violent crimes starting with um the salt with a weapon Where you were you I don't know where you the trial counsel in this case I handled the sentencing Your Honor then I'm just wondering why you wouldn't suggest to the court Ask them to make a little more explicit little more detail you may be right. This may be sufficient But if it had been more articulated more precise Wouldn't that resolve this and almost make and make it a non-appealable An issue not worthy of an appeal I'm asking you and perhaps I should have your honor I do think in this case there is enough where the court's not left to speculate. I didn't ask you that I said wouldn't it have been better? Absolutely, I mean why and why wouldn't a lawyer stand up a lawyer who's at risk or not being enough and just say your honor We appreciate what you've done, but we'd ask that you pronounced under the fact under the factors. What's wrong with that? There's nothing wrong with that and perhaps that would be the better practice Your honor it might it might help the parties judicial system The the family members who are sitting out there and watching their family member being sentenced I'm not saying that he that he didn't meet the court here didn't meet the standard of law, but it seems to me Judge King I've heard him say a couple times this week about it's important the appearance is important too Maybe not to legal determination in other words we don't decide on appearance whether the law was followed or not But my gosh, didn't that just help everybody know what's going on and help the family members No, they to them is just not what's that person in that black robe sending you know our brother to jail for 30 years At least they may disagree, but at least the judge can just tick off those things And by the way, let me say and I'm just wondering why The defense lawyer that's not the defense lawyer's job to do that The defense lawyer does not have the job to say your honor How about make a little more clear so you're verdict your decision will stand up on appeal Seems to me in the best interest of the public it might be Concederation for the government to take into account you'll do with me a point well taken judge that I will just conclude by saying that in this case There is sufficient Discussions of the court can conduct that meaningful review, but the prosecutors aren't Careful of the judges They don't seem to be yet when they come up here Let's separate that out of you all fearful of district I know you're fearful of a pellet go not to be afraid of us Those boys are nice man, and I think he'd be And typically he does go through all the all the particular arguments, but in this case your honor I think this is sufficient for a peller view it satisfied the Carter standards Just let me say one other thing to you. I mentioned them earlier when I was a district court judge ever someone stood up and suggestion your honor We think it might be more appropriate if he did x1 z I appreciated Them not let me make potentially an error and I thought it was good for the system to not make an error at that time Rather than have the court of appeals have to tell me to do it later

. This may be sufficient But if it had been more articulated more precise Wouldn't that resolve this and almost make and make it a non-appealable An issue not worthy of an appeal I'm asking you and perhaps I should have your honor I do think in this case there is enough where the court's not left to speculate. I didn't ask you that I said wouldn't it have been better? Absolutely, I mean why and why wouldn't a lawyer stand up a lawyer who's at risk or not being enough and just say your honor We appreciate what you've done, but we'd ask that you pronounced under the fact under the factors. What's wrong with that? There's nothing wrong with that and perhaps that would be the better practice Your honor it might it might help the parties judicial system The the family members who are sitting out there and watching their family member being sentenced I'm not saying that he that he didn't meet the court here didn't meet the standard of law, but it seems to me Judge King I've heard him say a couple times this week about it's important the appearance is important too Maybe not to legal determination in other words we don't decide on appearance whether the law was followed or not But my gosh, didn't that just help everybody know what's going on and help the family members No, they to them is just not what's that person in that black robe sending you know our brother to jail for 30 years At least they may disagree, but at least the judge can just tick off those things And by the way, let me say and I'm just wondering why The defense lawyer that's not the defense lawyer's job to do that The defense lawyer does not have the job to say your honor How about make a little more clear so you're verdict your decision will stand up on appeal Seems to me in the best interest of the public it might be Concederation for the government to take into account you'll do with me a point well taken judge that I will just conclude by saying that in this case There is sufficient Discussions of the court can conduct that meaningful review, but the prosecutors aren't Careful of the judges They don't seem to be yet when they come up here Let's separate that out of you all fearful of district I know you're fearful of a pellet go not to be afraid of us Those boys are nice man, and I think he'd be And typically he does go through all the all the particular arguments, but in this case your honor I think this is sufficient for a peller view it satisfied the Carter standards Just let me say one other thing to you. I mentioned them earlier when I was a district court judge ever someone stood up and suggestion your honor We think it might be more appropriate if he did x1 z I appreciated Them not let me make potentially an error and I thought it was good for the system to not make an error at that time Rather than have the court of appeals have to tell me to do it later. I just say for what it's for Thank you judge and unless the court has any other questions. I'd ask that they affirm the judgment of the district court. Thank you, Mr. Miller Mr

. I just say for what it's for Thank you judge and unless the court has any other questions. I'd ask that they affirm the judgment of the district court. Thank you, Mr. Miller Mr. Rock and Brock Arjun Brock I'm sorry I Used to call my rebuttal time if I have you and me to be about time you go right ahead Well very good. I don't have much more to add again. I think the Justice here evolved figured out our position and I think it could be more opposite. I would say as far as a California Supreme Court addressing Inherent dangers again before them was not whether a person is that aggravated it has committed an aggravated felony or not Their standard was different

. Rock and Brock Arjun Brock I'm sorry I Used to call my rebuttal time if I have you and me to be about time you go right ahead Well very good. I don't have much more to add again. I think the Justice here evolved figured out our position and I think it could be more opposite. I would say as far as a California Supreme Court addressing Inherent dangers again before them was not whether a person is that aggravated it has committed an aggravated felony or not Their standard was different. It wasn't the same issue before them I understand they were trying to defend why they have first-degree regulatory and creates more of a punishment for someone who goes into a home But again our position is it doesn't really solve the problem with regard to James the Supreme Court case That was they were again reviewing a Generic burglary where they're saying understandably when someone when the law says they have to break in and the person's trying to break in That does create more of a chance for a conflict for the face-to-face counter as California was pointing out when they refer to You can't get around these California cases. I would disagree. I don't think and I think again when DeCamps was reviewing Judge Kagan She was saying it's like shoplifting the burglary is almost like a home shoplifting case if you would um I understand they were making the law and in order to try to punish people more who went into a home to steal and I understand that Still out of the floor is not covered by this statute Army stealing out of a store If you go if he shoplifted out down at the mall that's not covered by this burglary statute Judge Kagan the Supreme Court said it would be it would be covered under California. Well I understand I stand yes or four sixty it would not be but The body For me this talk about dwelling you say exactly yes It's a dwelling I'm seen in diamonds, but you all Think the real man's as well

. It wasn't the same issue before them I understand they were trying to defend why they have first-degree regulatory and creates more of a punishment for someone who goes into a home But again our position is it doesn't really solve the problem with regard to James the Supreme Court case That was they were again reviewing a Generic burglary where they're saying understandably when someone when the law says they have to break in and the person's trying to break in That does create more of a chance for a conflict for the face-to-face counter as California was pointing out when they refer to You can't get around these California cases. I would disagree. I don't think and I think again when DeCamps was reviewing Judge Kagan She was saying it's like shoplifting the burglary is almost like a home shoplifting case if you would um I understand they were making the law and in order to try to punish people more who went into a home to steal and I understand that Still out of the floor is not covered by this statute Army stealing out of a store If you go if he shoplifted out down at the mall that's not covered by this burglary statute Judge Kagan the Supreme Court said it would be it would be covered under California. Well I understand I stand yes or four sixty it would not be but The body For me this talk about dwelling you say exactly yes It's a dwelling I'm seen in diamonds, but you all Think the real man's as well. That's correct. All right. It is well I don't know if it's a dwelling or it was a it was a rise of dwelling because that's what he's convicted of that's correct I don't know what kind it was we did and again, you don't use a modified approach anyway. You just have to stick to what went down to the Walmart and shoplifted in Los Angeles That doesn't seem to fit here Well the burglary part would it just wouldn't be the the first degree burglary of the second degree burglary of the dwelling in California not first degree burglary but it would still be a burglary wouldn't be first degree Burglary which what this was you all said Right, but did not require a break in entering and the James case again Every time this will California kept calling it an intrusion an invasion Again, I think when our Supreme Court reviewed that they're saying that's not required So they're perhaps looking at it in the light but understandably a different reason looking at in that light and that's our all adult Did you uh were you involved in this in the lower court? Yes, sir Um In your court pointed up here

. That's correct. All right. It is well I don't know if it's a dwelling or it was a it was a rise of dwelling because that's what he's convicted of that's correct I don't know what kind it was we did and again, you don't use a modified approach anyway. You just have to stick to what went down to the Walmart and shoplifted in Los Angeles That doesn't seem to fit here Well the burglary part would it just wouldn't be the the first degree burglary of the second degree burglary of the dwelling in California not first degree burglary but it would still be a burglary wouldn't be first degree Burglary which what this was you all said Right, but did not require a break in entering and the James case again Every time this will California kept calling it an intrusion an invasion Again, I think when our Supreme Court reviewed that they're saying that's not required So they're perhaps looking at it in the light but understandably a different reason looking at in that light and that's our all adult Did you uh were you involved in this in the lower court? Yes, sir Um In your court pointed up here. Yes, John. We appreciate your efforts Half of thank you client and assistant. Thank you Thank you very much. You're welcome sir We'll uh The juren court sign it i and go down and read council

My name is Michael Archmuron as mentioned and I'm here. They're attorney representing mr. Mario via Briefly into the facts mr. Avia was arrested in March 2012 for assault and Making threats communicating threats pursuant to an investigation regarding his background it was determined that he had been deported previously That deportation was pursuant to being convicted in California That when the prior convictions in California involved what is In violation of California penal code 459 and 460 California described that as a burglary and the violation of court occurred when someone would actually go into into a building inhabited or a business and I'm summarizing with the intent In order to commit a grand theft or petty theft or any felony and that would make them guilty of burglary if it was a dwelling then in this case mr. V is case it was It would be a violation of 460 as well. They just simply turned the 459 into a first-degree offense because the building that was injured was dwelling Initially whenever he was being sentenced and he was looking at a 16-level increase looking at what a 16-level increase under the guidelines to l 1.2 Of re-entering illegally pursuant to committing an aggravated felony of burglary I objected to that Unbeknownst to me at the same based upon the fact it wasn't a burglary that Statue 459 did not meet the definition of a generic burglary 460 or 60 well if I may it was for it apparently is 4.59 But is it goes to for ultimately 460 because it was a dwelling in other words 459 says in California It was in a precinct investigation report The PSR says yes, sir. All right That he was burglary of a dwell ultimately yes, sir I Go ahead. I'm sorry and that's fine. There was some confusion at first They they they considered it was a armed robbery because the conviction was so far so long ago That was correct that we've had I think up to the six PSRs in this case Because of all the different amendments and we discovered before sinacing that everybody agrees this is a Blind categorical approach here. Yes, Your Honor. No issue about the modified categorical approach No, you're and that's we're getting it to California burglary Statue and Decide whether it's an aggravated felony Correct exactly that was my objection under when the first came out of 16 level increase You could not apply a modified categorical approach you had to look at this the elements and Our position was the missing element with a burglary generic burglary you have to have and basically Breaking or entering into a building with the intent to commit offense therein so here what To get the enhancement that he got it had to be a crime of violence which has to Well one option there is there has to be a substantial risk that physical force was used for night level increase Right, and I thought that the California courts had specifically used that language in defining burglary in California I'm sorry I misunderstood I said I thought the California courts had specifically used that language or language almost Denicle or what appears in the sentencing guidelines to describe Well, if I understand the question correctly the California burglary does have a missing element of the Breaking or the end deal unlawful entry Well, that's for that's that with fit under a generic version of right right of burglary right We're going under the alternate version and the guidelines well The court and the camps and that's and that's where I hinge everything because it just came out and that changed everything in our sentencing and as as your honor you just pointed out yes, sir The question then comes up. Well, what about this residual clause? Mr. This residual clause is a different residual clause correct You as opposed to what was found and what was the case in when you didn't they camp in the one in front of us Different residuals different statute or different guidelines isn't it? Our position would be it's not it's more so 16 level one house Yes, sir, or arm career criminal it's correct under 924 E. Yes, sir So here we're we're here for eight and there's a lower or a different standard for that right under 18 USC Substation 16 this is an on career criminal no, sir in this reentry Yes, sir, and it's being aggravated felony. Yes, sir, which is defined as a crime of violence under the guidelines Right under 18 well and that and that crime of violence definition ends up with the residual clause Yes, sir, it's a different residual clause isn't it isn't it the residual clause under the reentry guidelines Not under on career criminal guidelines Right and had the four circuits said the law has to arm career doesn't apply to this Well the de camps being again the camps the camp wasn't this provision was it no Our position would be is it's the same it's not the same statute not the same one's 924 E Do you think the camps controls this yes, sir? But they specifically said in a footnote they the spring court for Justice Kagan said we aren't addressing Discipline today, right It has not been addressed and that's when I did the brief obviously I couldn't find anything and there's nothing to my knowledge Subsequent to that but it drawing the analogy is what I can say is that there is a digital clause is I understand it for a crime of violence or this enhancement Is an offense that a Bites nature involves a substantial risk the physical force against personal property Maybe use while you're committing the offense and there are California Supreme Court decisions that say Burgerly involves quote danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape As well as danger that the occupants will an anger or panic react to the invasion inviting more bant more violence Doesn't that definition from the California Supreme Court fit Handing glove under the definition and the guidelines or federal application is contrary to the camps California and But I thought you just told us that this definition that we're using for this case for this lower Sensing enhancement is not one that was involved in the camps It's not a burglary first of all California looks at as a burglary the problem is it's not a burglary because it's got a missing element The missing element isn't whoever breaks into a building is guilty of a bribery. We're not looking at as a generic. I know but You have to look at whether it's regular not our position is California section 4 59 is not a burglary It's kind of the flip side of of the Taylor case where the Supreme Court said we don't care what you call the statute if the elements contained in generic burglary fit it's a burglary whether you call it a break in entering or you call it a burglary the Camps is the flip side of that they're saying our position is we don't care if you call it a burglary if it does it meet Doesn't have the elements of generic burglary. It's not a burglary But that that's it and they camp I just can't put my hands on the case. Doesn't that deal with what a burglary is? Exactly. Does it does it deal with the residual clause? Well the problem is did they deal with the top question not the bottom question both because the missing element is not The lack of intent or the lack of being in a building the missing element is forced entry camp's burglary was the common law burglary Which was a break in an injury Isn't that right? Well, it was it was virtually it wasn't a stat it's statutorily defined But it's a breaking it every it was a breaking an It does not require that but this one doesn't that's what you're getting at yes, sir This is an entry without breaking your saying Right the 459 does not require a break, but I think I you show you have you show you right on day camp You said they camp applies to the residual clause as well. No, sir Well, yes, it does. I mean there's a residual clause in 924 E Did the supreme court say that their reasoning and they camp Applied to the residual clause that they consider the residual clause and they camp they did I always said they did because they referred to the crime as being almost like a shoplifting Why don't you say the footnote number six in that decision and they camp which says the government has Forfeited and alternative argument that 459 qualifies as a predicate offense under ACC a residual clause The the the Supreme Court said that's not even being argued in this case I think I can't speak for the government. I can probably well I can speak for I can speak with screen Right, I mean she just said they didn't argue why I didn't they in our position would be if they had a argument No, no, no, no, no, no, no, no, no, no, no, no, no, they forfeited that in other words the court's not going to consider that What the court and they camp I don't say a day camp applies because they camp is to the top of what is the burglary It does not involve the residual clause spring court says that Absolutely clearly and then in their four-circuit law that says even if we were to look at day camp We don't consider it because we don't consider under the reentry guidelines here in the four-circuit We don't consider the ACCA anchor and career criminal Well if you don't have dead in the four-circuit say that Do you know I'm not familiar with that you're on around you don't you see me? I'm not familiar with that I understand there may not If I make this is apparition sore case okay And it says I'm just going to read it to you and it says This the organ also fails the government's argument for a simple reason Wardric and Jenkins involve different clauses of different sentencing provisions Both cases involve the residual clause which categorize prior state offenses as federal sentencing predicates if they criminalize quote Conduct that presents a serious potential risk of physical injury to another This language appears in the arm career criminal act and the career of fender guidelines But it is not in the reentry guideline that is why Wardric and Jenkins are irrelevant to this case If that's I mean bring you the lawyer the court and if that's the way it stands Still without the break without the forced entry you don't have a crime of violence And even under the 18 u.s.c Which I think 16 opposition It's clear that what he was convicted that didn't require a forced entry right so they're yes, sir. Yes, sir So there's none of that from me how do we know that Because 459 just says just see who enters into the building is guilty and just kegans was big for 60 well That's just a dwelling it didn't add the element to be a first degree burglary under 460 It didn't add the additional element of break and entering it just simply said as a dwelling Then it becomes a higher degree that does nothing to say The california is just says the entering right yes, sir And this in 460 doesn't add that add the breaking into it is either but then What did the indictment say Of california indictment do we know oh it was just simple possession of a fire and body We have a look at that under the categorical approach just the categorical approach yes, sir We are really out of the look at the california indictment Yes, sir under the categorical approach yes, sir But don't we look at what california says about its own law to decide whether or not this fits in the reentry guideline Well, not that but it's the crime of violence under 16 any other offense that is a felony and that by its nature Invas is a substantial is that physical force against the personal property of another may be used No, sir because they're looking at from a different standpoint What are they looking at? We don't we don't If he's convinced of a felony in california wouldn't you look at the california law? Yes, sir Why won't we look at and in that california law In the final definition of that given to it by the Supreme Court in california No, sir. I think the five definitions by the US Supreme Court and the camps he said it is not a crime of violence categorically It's not a burglary. Yeah, but california is calling it a burglary and it's not but I mean the Supreme Court said repeatedly that In terms of what a state law means Under that state's law that's determined by the high school of that state If it's they can call it a burglary, but when it comes to the fine But they also said that entry into and the haven't the habitat structure is most dangerous and most likely to cause personal injury Justifying a summit of the higher degree of burglary law california case But so which they can do I mean they can call it anything and have higher degree, but But it can't be applied in the federal You think it has to be do you think that this rides on the definition of burglary? As the Supreme Court and the camps yeah, but applying it as far as naggar veta fellonia, sir I know, but they camp didn't look at the residual clause and a statute that's similar, but doesn't control And that one in this case wouldn't rise or fall on that our position still would be the residual clause would not apply No matter in this case because you don't have the requirement of a forced entry It cannot be considered in any shape reform as a burglary California law seems to say that whether there's a forced or injured not to dispose of it Under the residual clause That if you go into You commit a burglary without the forced entry that's still dangerous Well, they can say that but I don't think all of eyes under 16 B right But it's not a burglary language of their cases seem to fit under 16 B substantial risk of whatever the language is The only problem with them your honor is that they fell to in the statute to say that that it criers a forced entry And you read lights on there. I'm sorry. Oh, if I may just and I don't I can entertain more questions That our position summary is that the element missing is the forced entry and therefore How are we shape it? There is no it's not a crime of violence and therefore you're using every but all time Oh, I don't know am I I'll let you I'm sorry, Your Honor Um, I would also make mention that I apologize and I lost track of my time then Um that the reason why this is important in mr. Avis case also is because the second issue was under 3553 arguments that the court Uh, committed procedural air and subs of air because whenever we made our arguments under 3553 A is mentioned in our Our statute. I mean our statement of facts about mr. Avis under his characteristics and his rehabilitative approach Um That he took rehabilitation efforts took classes in in jail and The court did not address those when he sentenced him to 37 months. He simply said Regarding that he didn't think he was being deterred his history focused on his criminal history If the eight level does not apply in this case that would make the district court sentence Considerably higher a considerable variance beyond the guidelines You explained that in your brief right. Yes, we are and therefore the it would not waste in listening one mr. Miller. Thank you. I apologize mr. Miller What's the government's position on this to camps point Your Honor William Miller on behalf of the United States The government's position on the camp is that it has no application in this case that's where you didn't brief it Uh, that footnote six at the court identified earlier. It makes it explicitly clear that You didn't even miss that you brief did you I didn't mention they mentioned their brief and you didn't even Come back on and that's what we spend that spend a commuero and perhaps I should put as a Supreme Court case on on the Almost the same statute in California involving burglary It's a case addressing I mean I'm I'm interested in how can be distinguished it can be distinguished because it's a case addressing Um, when you get to look at shepherd approved documents for the purpose of determining whether or not the crime is generic burglary Which is the first part of the definition the case has nothing to say about our Question which is whether or not it qualifies under the residual clause? We're not here. Are we concede the California burglary is not generic burglary The proper inquiry Under the residual clause though is whether in the ordinary case And this comes straight from James the proper inquiry is whether the conduct encompass by the elements of the fence In the ordinary case presents a serious potential risk of entry to another and that's just there's just this California conviction he has require a forced entry No, sir, and that's why it's not generic burglary But but he says The defendant's attorney says since it doesn't require a forced entry That takes it out I'm being a crime of violence now You don't agree with that. No, sir. My response to that what makes the crime of violence My response to that is that in the ordinary case a violation of The residential burglary statute because it does require the element of a dwelling would present Similar risks to generic burglary now I draw the courts attention to the James case I was going to go in the house inhabited house without breaking but there's danger still there Yes, your honor in James which was about attempted burglary California courts said that basically Yes, sir, that's right judge AG and that was a California Supreme Court They told us what the risks associated with their usual burglary Situation were and you know your honor is summarized those a moment ago, but they are identical to the risks that we rely on with California courts said It's they it's It's a crime of violence under 16 B of title 18 Correct Yes, your answer makes it a crime of violence under the guidelines It makes it a crime of violence for purposes of that eight level enhanced and which makes it an aggravated felony Yes, your honor and The illegal reentry guidelines are a little funny because they have two different crime of violence They need definitions of crimes of violence or in the federal code far too many I'm in far too many I agree with that and there's two and have any of them or aggravated felonies or that that At terms thrown around a lot right there's two just in a legal entry and as mr. Archimbron summarized the 16 level enhancement has a crime of violence division where there's no residual And the 16 level enhance puts what the spring court was dealt with and The camp they were dealing with the arm career criminal act, but it functions the same way as the crime of violence definition here for the 16 level You think the camps to be worth a footnoter too And I apologize for not drawing those things really Right and long opinions about the California burglary stuff Um, it's just clearly based excuse me, Your Honor. It's clearly based on that footnote Just not applicable here that the did you think it was so obvious nobody would even Batham that it would be you know, I certainly wish now that I had cited the camps you're on But it is clearly it is clearly Doesn't guide our analysis in this case which is to look at the ordinary case and determine what the risks are And as the California Supreme Court has said they are the same risks Um as generic burglary and that's the conclusion that's been read really question Here that the categorical approach applies everybody agrees with that right it's not the category and under the categorical approach We have to look at what the out the statute the elements of the offense. Yes, Your Honor. You look at the risks present There's no disagreement as to what the statute says or what the elements of the offense are Not just our knowledge is there any is the indictment from California in here? Do we know what he was charged with or allowed to look at that? Uh, the indictment doesn't come into the analysis here. There's no dispute Is the indictment in the record? Let me ask you that part. No, Your Honor. So we don't know what the indictment says So with with with if we're here would be would we be allowed to look at it under the categorical approach? It would not we would not be able to and that's what the case we look at the fact he was convicted of First degree Cali first degree California burger. He look at the statute look at the elements How does it measure up with 16 B? Exactly. That's it. It's well Well isn't the elements as the state has defined those elements. Yes, Your Honor I mean the language they use is the judicial gloss of the of the court right of the California Supreme because and it isn't It true that the state just for what is worth as an aside the state Supreme Court other than some due process All of you miss something they can decide those hellos me whatever they say they mean and most they said that correct Yes, Your Honor and this court would but it's elements with that judicial gloss in other words and your argument is It is no question on the California law is defined by California That this falls within 16 B Or whatever number the the Supreme Court of California has done our work for us Which is to define the risk maybe maybe they cited they can Which is to define the risk of a usual burglaries. Have they yeah, have they had a California state court spring court had a case sent to camp If you know I don't know that they have I don't know that that would apply to their analysis really federal courts had this California burglarie statute sent to Canada and I've looked for that and I haven't I haven't found any I will say that the four circuits that looked at this issue Prior to the camp all came out the same way which is to say that First degree of California burglarie qualifies under the residual clause Be it under the arm career criminal act or here and their 16 B um If there are no additional questions other than on my failure to cite the camp with respect to the first issue I'll just briefly touch on the second issue Your Honor and the standard there is whether or not um This court can conduct a meaningful review um as to the reasons for the sentence imposed and here The district court although it was a brief summary it did show um The basis for the court's decision to sentence at the high end of the guidelines and that was based on the history and characteristics of the defendant in this case Which as the district court summarized is a pattern of illegally reentry illegally entering the country and committing violent crimes starting with um the salt with a weapon Where you were you I don't know where you the trial counsel in this case I handled the sentencing Your Honor then I'm just wondering why you wouldn't suggest to the court Ask them to make a little more explicit little more detail you may be right. This may be sufficient But if it had been more articulated more precise Wouldn't that resolve this and almost make and make it a non-appealable An issue not worthy of an appeal I'm asking you and perhaps I should have your honor I do think in this case there is enough where the court's not left to speculate. I didn't ask you that I said wouldn't it have been better? Absolutely, I mean why and why wouldn't a lawyer stand up a lawyer who's at risk or not being enough and just say your honor We appreciate what you've done, but we'd ask that you pronounced under the fact under the factors. What's wrong with that? There's nothing wrong with that and perhaps that would be the better practice Your honor it might it might help the parties judicial system The the family members who are sitting out there and watching their family member being sentenced I'm not saying that he that he didn't meet the court here didn't meet the standard of law, but it seems to me Judge King I've heard him say a couple times this week about it's important the appearance is important too Maybe not to legal determination in other words we don't decide on appearance whether the law was followed or not But my gosh, didn't that just help everybody know what's going on and help the family members No, they to them is just not what's that person in that black robe sending you know our brother to jail for 30 years At least they may disagree, but at least the judge can just tick off those things And by the way, let me say and I'm just wondering why The defense lawyer that's not the defense lawyer's job to do that The defense lawyer does not have the job to say your honor How about make a little more clear so you're verdict your decision will stand up on appeal Seems to me in the best interest of the public it might be Concederation for the government to take into account you'll do with me a point well taken judge that I will just conclude by saying that in this case There is sufficient Discussions of the court can conduct that meaningful review, but the prosecutors aren't Careful of the judges They don't seem to be yet when they come up here Let's separate that out of you all fearful of district I know you're fearful of a pellet go not to be afraid of us Those boys are nice man, and I think he'd be And typically he does go through all the all the particular arguments, but in this case your honor I think this is sufficient for a peller view it satisfied the Carter standards Just let me say one other thing to you. I mentioned them earlier when I was a district court judge ever someone stood up and suggestion your honor We think it might be more appropriate if he did x1 z I appreciated Them not let me make potentially an error and I thought it was good for the system to not make an error at that time Rather than have the court of appeals have to tell me to do it later. I just say for what it's for Thank you judge and unless the court has any other questions. I'd ask that they affirm the judgment of the district court. Thank you, Mr. Miller Mr. Rock and Brock Arjun Brock I'm sorry I Used to call my rebuttal time if I have you and me to be about time you go right ahead Well very good. I don't have much more to add again. I think the Justice here evolved figured out our position and I think it could be more opposite. I would say as far as a California Supreme Court addressing Inherent dangers again before them was not whether a person is that aggravated it has committed an aggravated felony or not Their standard was different. It wasn't the same issue before them I understand they were trying to defend why they have first-degree regulatory and creates more of a punishment for someone who goes into a home But again our position is it doesn't really solve the problem with regard to James the Supreme Court case That was they were again reviewing a Generic burglary where they're saying understandably when someone when the law says they have to break in and the person's trying to break in That does create more of a chance for a conflict for the face-to-face counter as California was pointing out when they refer to You can't get around these California cases. I would disagree. I don't think and I think again when DeCamps was reviewing Judge Kagan She was saying it's like shoplifting the burglary is almost like a home shoplifting case if you would um I understand they were making the law and in order to try to punish people more who went into a home to steal and I understand that Still out of the floor is not covered by this statute Army stealing out of a store If you go if he shoplifted out down at the mall that's not covered by this burglary statute Judge Kagan the Supreme Court said it would be it would be covered under California. Well I understand I stand yes or four sixty it would not be but The body For me this talk about dwelling you say exactly yes It's a dwelling I'm seen in diamonds, but you all Think the real man's as well. That's correct. All right. It is well I don't know if it's a dwelling or it was a it was a rise of dwelling because that's what he's convicted of that's correct I don't know what kind it was we did and again, you don't use a modified approach anyway. You just have to stick to what went down to the Walmart and shoplifted in Los Angeles That doesn't seem to fit here Well the burglary part would it just wouldn't be the the first degree burglary of the second degree burglary of the dwelling in California not first degree burglary but it would still be a burglary wouldn't be first degree Burglary which what this was you all said Right, but did not require a break in entering and the James case again Every time this will California kept calling it an intrusion an invasion Again, I think when our Supreme Court reviewed that they're saying that's not required So they're perhaps looking at it in the light but understandably a different reason looking at in that light and that's our all adult Did you uh were you involved in this in the lower court? Yes, sir Um In your court pointed up here. Yes, John. We appreciate your efforts Half of thank you client and assistant. Thank you Thank you very much. You're welcome sir We'll uh The juren court sign it i and go down and read counci