United States District Court, N.D. California
ORDER RE CLASSIFICATION OF VIOLATION
PHYLLIS J. HAMILTON United States District Judge
matter is before the court for sentencing on supervised
release violations by defendant Lorenzo Grant, as alleged in
the November 7, 2014 Amended Form 12. Defendant challenges
the recommendation of Probation that Charge Number Five,
alleging that he violated the condition that he not commit
another federal, state, or local crime, based on his
conviction for California Penal Code § 273.5, Willful
Infliction of Corporal Injury on a Spouse or Cohabitant, is a
Grade A Violation. Defendant contends that the § 273.5
conviction does not qualify as a "crime of
violence" to satisfy the definition of a Grade A
violation, in light of Johnson (Samuel) v. United
States, 135 S.Ct. 2551 (2015) ("Johnson
II"). Def. Disp. Mem. (doc. no. 39) at 4-11. Having
heard argument on the matter, and having reviewed the papers
and relevant legal authority, the court finds that the §
273.5 conviction is a Grade A supervised release violation.
Applicable Sentencing Guidelines
U.S.S.G. § 7B1.1(a)(1), a Grade A supervised release
violation is defined to include conduct constituting a
federal, state, or local offense punishable by a term of
imprisonment exceeding one year that is a crime of violence.
A "crime of violence" is defined at § 4B1.2
under the "force" clause in subsection (a)(1) and
the enumerated offenses clause and the "residual"
clause in subsection (a)(2):
(a) The term "crime of violence" means any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2.
California law, a person who commits a domestic violence
offense ‘is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison
for two, three or four years, or in a county jail for not
more than one year.'" U.S. v. Denton, 611
F.3d 646, 651 (9th Cir. 2010) (citing Cal. Penal Code §
273.5). Defendant does not dispute that his § 273.5
offense was punishable by more than one year's
imprisonment, but contends that the offense does not qualify
as a "crime of violence" as defined in § 4B1.2
of the guidelines.
Crime of Violence
argues that the residual clause of the definition of
"crime of violence" under the guidelines, §
4B1.2(a)(2), has been rendered void for vagueness under the
holding of Johnson II, which invalidated an
analogous residual clause. In Johnson II, the Court
held that the residual clause of the Armed Career Criminal
Act (ACCA) defining a "violent felony" to include
any felony that "involves conduct that presents a
serious potential risk of physical injury to another, "
18 U.S.C. § 924(e)(2)(B), violates the
Constitution's guarantee of due process against vague
criminal laws. 135 S.Ct. at 2563. Here, the government does
not dispute that Johnson II has rendered the
residual clause of U.S.S.G. § 4B1.2(a)(2) invalid. The
court notes that the Sentencing Commission has adopted an
amendment to the definition of "crime of violence"
in the guidelines, effective August 1, 2016, that deletes the
residual clause at § 4B1.2(a)(2).
government contends that defendant's conviction for
violation of Penal Code § 273.5 meets the definition of
a crime of violence under the force clause of §
4B1.2(a)(1), to qualify as a Grade A violation under §
7B1.1. The government cites controlling Ninth Circuit
authority recognizing that Penal Code § 273.5 qualifies
as a categorical crime of violence under the force clause of
18 U.S.C. § 16(a), which contains a force clause and
residual clause nearly identical to U.S.S.G. §
4B1.2.Banuelos-Ayon v. Holder, 611 F.3d
1080, 1083-84 (9th Cir. 2010). See also United States v.
Ayala-Nicanor,659 F.3d 744, 752 (9th Cir. 2011)
(holding that § ...