NINTH CIRCUS AT WORK

In Bananas, Woody Allen cross-examines himself during a sedition trial -- and breaks himself down during withering questioning. The scene comes to mind when reading Esparza-Herrera, where a three-judge panel "concurs" (really, dissents) from its own per curiam decision. United States v. Esparza-Herrera, __ F.3d __, No. 07-30490, 2009 WL 455512 (9th Cir. Feb. 25, 2009), decision available here.

Players: Nice win from a skeptical panel by Montana AFPD Thomas Monaghan.

Facts: Esparza-Herrera, a § 1326 defendant, got hit with the sixteen offense-level specific offense adjustment for an Arizona assault prior. Id. at *1. The PSR described this assault as the defendant breaking into his girlfriend’s house and beating her for four hours. Police said she had blood on her hands and face, both eyes were swollen shut, and she was covered in bite marks. Id. at *1 & n.2. [Ed. Note: Recall that PSRs cannot be used as evidence for the modified categorical analysis].

Held: “We [in the Ninth Circuit] do not use the common sense approach. Instead, we must apply the categorical approach even when the object offense is enumerated as a per se crime of violence under the guidelines.” Id. at *3

See summary here.