United States v. Margarito Flores-Cordero

Citations: 723 F.3d 1085; 2013 U.S. App. LEXIS 15186; 2013 WL 3821604Docket: 12-10220

Court: Court of Appeals for the Ninth Circuit; July 25, 2013; Federal Appellate Court

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The Ninth Circuit vacated the sentence of Margarito Flores-Cordero and remanded for resentencing, ruling that his prior conviction for resisting arrest under Arizona law (Ariz. Rev. Stat. 13-2508(A)(1)) does not qualify as a "crime of violence" under the United States Sentencing Guidelines (U.S.S.G. 2L1.2). The court found that Arizona decisions indicate that minimal force is sufficient for a resisting arrest charge, thus rendering it not categorically a crime of violence per federal law. This decision supersedes the precedent set in Estrada-Rodriguez v. Mukasey, which had previously classified this Arizona statute as a crime of violence. The panel also determined that the Arizona statute is not divisible, negating the need for the modified categorical approach in sentencing. Flores-Cordero had pled guilty to illegal reentry, and the determination of whether his prior conviction constituted a crime of violence was crucial as it affected his eligibility for certain discretionary relief from removal in immigration proceedings.

Under the Armed Career Criminal Act (ACCA), a defendant with three prior convictions for "violent felonies" can face a life sentence, as outlined in 18 U.S.C. 924(e)(1). In cases of illegal reentry, prior deportation due to a "crime of violence" results in a substantial upward adjustment in sentencing, per U.S.S.G. 2L1.2(b)(1)(A). For Flores-Cordero, this adjustment increased his sentencing range from 18-27 months to 70-87 months, though the district court ultimately imposed a below-guideline sentence of 63 months. Definitions of "violent felonies" and "crimes of violence" hinge on the application of "physical force," as specified in 18 U.S.C. 16 and further clarified in 18 U.S.C. 924(e)(2)(B).

Flores-Cordero's prior conviction for resisting arrest under Ariz. Rev. Stat. 13-2508(A)(1) was examined, which stipulates that a person commits this offense by using or threatening physical force against a peace officer. The interpretation of "physical force" is pivotal, necessitating an analysis of Arizona's statute in light of federal and state court rulings, particularly the U.S. Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010). In Johnson, the Court emphasized that while federal law governs the definition of "violent felony," the nature of a prior conviction is determined by state law. The Court adopted a definition of "physical force" requiring force capable of causing physical pain or injury, which applies to the Sentencing Guidelines relevant to this case.

In examining the Arizona statute on resisting arrest, the court referenced early interpretations, notably Womack, which clarified that the statute necessitates the actual use of physical force or the risk of physical injury. Thus, the interpretation of "resisting arrest" in Arizona law is significant in determining whether Flores-Cordero's conviction qualifies as a "violent felony" under federal law.

The court ruled that nonviolent flight from arrest does not fall under the “resisting arrest” statute. In the case of Estrada-Rodriguez, it was determined that the Arizona statute's requirement of force or risk of injury categorizes it as a “crime of violence” under federal law. The level of force needed was not addressed. Following this, Arizona courts, notably in State v. Lee, found that any physical force used during an arrest qualifies as “resisting arrest.” In Lee, the defendant's struggle and kicking of officers during an attempt to be handcuffed was deemed sufficient to invoke the statute, despite the lack of injury. This ruling has been consistently upheld in subsequent Arizona cases. 

Current Arizona law establishes that minimal force can constitute “resisting arrest.” The pivotal question is whether a conviction under Ariz. Rev. Stat. 13-2508(A)(1) qualifies as a crime of violence under federal guidelines, which require “physical force” capable of causing pain or injury. The conduct in Lee, while a “minor scuffle,” does not necessarily meet this threshold as defined by the U.S. Supreme Court in Johnson. Therefore, an Arizona conviction for resisting arrest cannot be categorically classified as a crime of violence under federal guidelines. 

This ruling represents the first examination of the Arizona resisting arrest statute since Estrada-Rodriguez, which predates both the Supreme Court’s Johnson decision and the clarifying Lee decision. Consequently, it is concluded that a conviction for “resisting arrest” under Arizona law does not meet the federal definition of a crime of violence, superseding any previous interpretations suggested by Estrada-Rodriguez.

Flores-Cordero’s prior conviction for resisting arrest under Ariz. Rev. Stat. 13-2508(A)(1) is determined not to be categorically a crime of violence. Previously, the inquiry would have required remand for the district court to assess the conviction's status through the modified categorical approach, as established in United States v. Aguila-Montes de Oca. However, following the Supreme Court’s ruling in Descamps v. United States, the modified categorical approach is now applicable only to statutes with multiple, alternative elements. Since Ariz. Rev. Stat. 13-2508(A)(1) is deemed indivisible, and given that the conviction was undisputedly under this specific section, remand for further analysis is unnecessary. Consequently, Flores-Cordero’s sentence is vacated and the case is remanded for resentencing without any enhancements under U.S.S.G. 2L1.2(b)(1)(A) for a “crime of violence” conviction.