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9TH HOLDS CALIFORNIA ASSAULT WITH DEADLY WEAPON IS NOT A GUIDELINES VIOLENT CRIME
The Sentencing Commission is required by 28 USC § 994(h) to include provisions in the Guidelines to ensure that people with more than one prior conviction for crimes of violence or drug trafficking are sentenced “at or near the maximum term authorized” by statute. To carry out that mandate, the Commission created the career offender provision in Chapter 4B of the Guidelines.
Jesus Gomez was sentenced to 188 months for a drug distribution offense, being found to be a Guidelines career offender because of a prior conviction for assault with a deadly weapon (ADW) under California Penal Code § 245(a)(1).
Last week, the 9th Circuit vacated his sentence, holding that its prior decisions that California ADW was a crime of violence “are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States.
In Borden, the Supreme Court held that the mens rea requirement of USSG § 4B1.1 stems from the language requiring that force be used “against the person… of another.” A defendant acts recklessly when he “consciously disregards a substantial and unjustifiable risk.” But the phrase “against another” demands that the defendant “direct his action… at another individual.” Because reckless conduct is not aimed “in that prescribed manner,” the Borden court ruled, it does not satisfy the elements clause of 4B1.1.
California state courts have previously recognized that the ADW statute does not require an intent to cause harm but instead only requires an intent to do the act that results in harm. The Gomez court ruled that the ADW’s “intentional act” requirement does not equate to the “intent to harm” or “purpose” mens rea required for a Guidelines crime of violence.
Jesus, whose non-career offender Guidelines are 130-162 months, will go back for resentencing.
United States v. Gomez, Case No. 23-435, 2024 U.S.App. LEXIS 22457 (9th Cir. Sep 4, 2024)
Borden v. United States, 593 US 420 (2021)
– Thomas L. Root