U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010)

The facts in this case are irrelevant. The issue is whether the court can increase the sentence of the defendant for commission of burglary under the federal statute. The Armed Career Criminal Act (ACCA) defines a violent felony as any crime punishable by imprisonment of more than one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. See 18 U.S.C. 924(e)(2)(B). The court increases the sentence of a defendant if convicted with the addition of prior convictions. The Ninth Circuit has repeatedly interpreted 18 U.S.C. 924 in sentencing criminals and deporting illegal aliens under a “categorical approach.” The court examines the statute to determine the scope of its application in the charge, transcript of the plea, or the trial court record. If the crime is “generic,” the court applies the categorical approach; if the a crime apparently falls outside this category it is resolved under the residual clause above. The majority interprets the statute (burglary) in Terrell correctly despite its apparent duplication of the use of harm. The first clause of the statute listing “violent crimes” includes the “use, attempted use or threatened use” of physical force against another. This definition obliviously applies to crimes of robbery, assault, battery, theft from the person, rape or some degree of homicide. The second paragraph identifies specific crimes outside the personal type of crime: Burglary, a property crime; arson, a property crime; extortion, a property crime and personal crime; and the use of explosives, a property and/or personal crime. The statute also includes any conduct consisting of a “potential” risk of crime. The majority interprets the second clause as a “catch all” phrase, in effect. This language does not include the “use, attempted use or threatened use of harm,” it includes the “potential” of that use. The conduct of a person can include the “potential” use of harm without “using any harm, attempting to use harm or threatening to do so.” In the second clause, Congress obviously attempted to include all possible linguistic interpretations of the ACCA to avoid the academic hairsplitting indigenous to the Ninth Circuit. Under this new judicial interpretation of the statute, any risk of potential physical harm is the appropriate test. Burglary, a property crime, does not routinely include the “use, attempted use or threatened use of harm”, nevertheless the conduct exposes the occupant of a dwelling house, a police officer or a bystander to a potential risk of confrontation and consequent harm. In other words the generic crime of burglary may include the risk of harm not ordinarily included in the statutory definition of the crime. The minority in Terrell, worried about the “train wreck” this interpretation has caused by an earlier Ninth Circuit decision in U.S. v. Mayer, 560 F.3d 948 (9th Cir.2009), identifies Terrell as an example. The minority says nothing about all the “train wrecks” caused by untold numbers of “categorical” approaches in Ninth Circuit precedent, particularly in immigration cases where the illegal alien should be deported. There is no reason to apply the categorical approach in sentencing to immigration cases as the Mayer case notes. The new rule will end that analysis.