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.