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United States v. Grant

United States District Court, N.D. California

July 7, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
LORENZO GRANT, Defendant.

          ORDER RE CLASSIFICATION OF VIOLATION

          PHYLLIS J. HAMILTON United States District Judge

         This 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.

         I. Applicable Sentencing Guidelines

         Under 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 another.

U.S.S.G. § 4B1.2.

         "Under 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.

         II. Crime of Violence

         A. Residual Clause

         Defendant 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).

         B. Force Clause

         The 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.[1]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 ยง ...


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