Ninth Circuit -- USA V. AGUILA-MONTES DE OCA

USA V. AGUILA-MONTES DE OCA

Court rejects a bright line "missing element" rule for counting priors for sentencing bumps.  Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction.  There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.

Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.

Another concurrence:  Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.