FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MCKENZY ALII ALFRED,

Petitioner,

v.

MERRICK B. GARLAND, United States 

Attorney General,

Respondent.

No. 19-72903

Agency No.

A215-565-401

OPINION

Petition for Review from an Order of the 

Board of Immigration Appeals 

Argued and Submitted March 3, 2021

Seattle, Washington

Filed September 22, 2021

Before: Johnnie B. Rawlinson and Jay S. Bybee, 

Circuit Judges, and Morrison C. England, Jr.,*

District Judge.

Opinion by Judge England;

Special Concurrence by Judge England;

Concurrence by Judge Rawlinson

* The Honorable Morrison C. England, Jr., United States District 

Judge for the Eastern District of California, sitting by designation.
2 ALFRED V. GARLAND

SUMMARY**

Immigration

Granting McKenzy Alii Alfred’s petition for review of a 

decision of the Board of Immigration Appeals, and 

remanding, the panel held that Petitioner’s convictions for 

robbery in the second degree and attempted robbery in the 

second degree, in violation of Wash. Rev. Code 

§§ 9A.56.190, 9A.56.210 and 9A.28.020, do not qualify as 

aggravated felony theft offenses under 8 U.S.C. 

§§ 1101(a)(43)(G), (U).

The panel concluded it was bound by United States v. 

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which a 

divided panel determined that when considering the 

immigration effect of a Washington controlled substance 

conviction, accomplice liability is an implicit and indivisible 

component of the conviction that must be considered under 

the categorical approach. The Valdivia-Flores majority 

further concluded that the accomplice liability mens rea 

under Washington law (knowledge) is broader than that 

required under federal law (specific intent), and therefore, 

there could be no categorical match between the state statute 

of conviction and the generic federal definition of a drug 

trafficking crime.

Because, according to the Valdivia-Flores majority, it is 

well-established that aiding and abetting liability is implicit 

in every criminal charge, the panel explained that 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ALFRED V. GARLAND 3

accomplice liability must be considered here. Observing 

that the Valdivia-Flores majority never reached the text of 

the drug trafficking statute, the panel concluded that its 

inquiry ended with accomplice liability as well. To this 

effect, the panel concluded that the overbreadth of 

Washington’s accomplice liability means there can be no 

categorical match to the generic federal offense in this case 

either, and Petitioner’s second-degree robbery convictions 

cannot constitute aggravated felony theft offenses. 

Accordingly, the panel concluded that Petitioner was not 

removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Specially concurring, District Judge England, joined by 

Judge Bybee, wrote that the panel relied on a theory of 

liability that assumes a crime was committed by someone 

else when it was undisputed that Petitioner himself—

alone—committed the offense. Judge England also 

explained that it is quite possible that, at least in similar 

cases, no Washington conviction can be an aggravated 

felony at all. In such cases, future panels will never need to 

turn to the actual statute of conviction, but the exact same 

conduct may be an aggravated felony in a neighboring state. 

Judge England observed that Congress could not have 

intended such disparities. 

Judge England wrote that the approach also puts 

attorneys in an untenable spot where they must argue against 

positions they would not normally advocate; the drive to 

show that state crimes of conviction are overbroad in 

comparison to their federal counterparts results in 

governments and prosecutors advocating for narrow 

readings of state criminal codes while defense counsel 

instead argue for expansion. Judge England wrote that all 

the confusion left in the wake of the categorical approach 
4 ALFRED V. GARLAND

undermines the legitimacy of the third branch of 

government. 

Concurring in the result, Judge Rawlinson wrote that she 

concurred in the result because, and only because, the result 

was compelled by the majority opinion in Valdivia-Flores. 

However, for the reasons explained in her dissent in 

Valdivia-Flores, Judge Rawlinson wrote that the conclusion 

that convictions for second degree robbery do not constitute 

aggravated felonies makes no sense legally or factually. 

COUNSEL

Aaron Korthuis (argued), Northwest Immigrant Rights 

Project, Seattle, Washington; Alison Hollinz, Northwest 

Immigrant Rights Project, Tacoma, Washington; for 

Petitioner.

Jaclyn E. Shea (argued), Trial Attorney; Zoe J. Heller, 

Senior Litigation Counsel; Office of Immigration Litigation, 

Civil Division, United States Department of Justice, 

Washington, D.C.; for Respondent.
ALFRED V. GARLAND 5

OPINION

ENGLAND, District Judge:

Petitioner McKenzy Alii Alfred (“Petitioner”), a native 

and citizen of the Republic of Palau (“Palau”), petitions for 

review of an order of the Board of Immigration Appeals 

(“BIA” or “Board”) that found him removable as an alien 

convicted of an aggravated felony offense. Because we are 

bound by the decision in United States v. Valdivia-Flores, 

876 F.3d 1201 (9th Cir. 2017), we conclude that Petitioner’s 

convictions for robbery in the second degree and attempted 

robbery in the second degree under Washington law do not 

qualify as aggravated felonies under §§ 101(a)(43)(G), (U) 

of the Immigration and Nationalization Act (“INA”), 

8 U.S.C. §§ 1101(a)(43)(G), (U). The petition must 

therefore be GRANTED.

I

A.

In December 2011, Petitioner entered the United States 

from Palau pursuant to the so-called Compact of Free 

Association between the United States and several Pacific 

Island territories, including Palau.1 Approximately seven 

1 Under the Compact, the Republic of the Marshall Islands, the 

Federated States of Micronesia, and Palau entered into an agreement 

with the United States allowing their citizens to enter, work, and 

establish residence in the United States without visas. See Compact of 

Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986), 

amended by Compact of Free Association Amendments Act of 2003, 

Pub. L. No. 108-88, 117 Stat. 2720 (2003). Individuals so entering the 

United States, however, remain subject to removability on the same 

grounds applicable to other noncitizens. See Pub. L. No. 108-88 

§ 141(f), 117 Stat. at 2762.
6 ALFRED V. GARLAND

years later, Petitioner pled guilty in Washington state court 

to one count of second-degree robbery and two counts of 

attempted robbery in the second degree in violation of Wash. 

Rev. Code §§ 9A.56.190, 9A.56.210 and 9A.28.020. 

According to his plea agreement, Petitioner—by himself—

first tried to obtain cash from a teller at a credit union before 

going to a nearby coffee kiosk and taking money from the 

barista. He then attempted to carjack a vehicle operated by 

another third party. There was no evidence that anyone other 

than Petitioner committed these crimes, let alone any 

evidence that Petitioner acted as an accomplice to someone 

else, or was charged as an accomplice. Petitioner was 

eventually sentenced to fifteen-month concurrent terms of 

imprisonment on each count.

B.

During Petitioner’s incarceration, the Department of 

Homeland Security (“DHS”) issued a Notice to Appear 

(“NTA”) alleging that Petitioner was removable under 

8 U.S.C. § 1227(a)(2)(A)(iii) because, inter alia, he had 

been convicted of an aggravated felony as defined by 

8 U.S.C. § 1101(a)(43)(G). Specifically, in this case, 

Petitioner had been convicted of a theft or burglary offense 

for which the term of imprisonment is at least one year. See 

8 U.S.C. § 1101(a)(43)(G).2

Petitioner admitted the factual allegations in the NTA, 

but nonetheless contested removability. At a hearing before 

an Immigration Judge (“IJ”), the IJ agreed with the 

2 The DHS ultimately added additional charges of removability, 

including charges that Petitioner had been convicted of aggravated 

felonies involving both violence and moral turpitude. The violence 

charges, however, were ultimately dismissed.
ALFRED V. GARLAND 7

Government that Petitioner was indeed removable as having 

sustained theft-related aggravated felonies.3 The IJ’s 

findings were subsequently memorialized in writing.

According to the IJ, this circuit’s decision in United 

States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), 

controlled. In that case, another panel of this court held that 

the same state statute under which Petitioner was convicted 

was a categorical match to the INA’s generic offense. Since 

Petitioner, like Alvarado-Pineda, had unquestionably been 

sentenced to a term of imprisonment of more than a year for 

each of his convictions, the IJ determined that he had been 

convicted of aggravated felonies.4

The IJ was unpersuaded by Petitioner’s claim to the 

contrary based on the split decision of a later panel in 

Valdivia-Flores. There, the panel determined that when 

considering the immigration effect of a Washington 

conviction for possession of a controlled substance with 

intent to distribute, accomplice liability is an implicit and 

indivisible component of the conviction that must be 

considered under the categorical approach. Valdivia-Flores, 

876 F.3d at 1207. The majority concluded that the 

accomplice liability mens rea under Washington law is 

broader than that required to establish accomplice liability 

3 The IJ also sustained moral turpitude aggravated felony charges, 

but, as discussed below, the Board based its decision solely on the theft 

charges. Accordingly, we also do not consider moral turpitude.

4 In addition to finding second-degree robbery under Washington 

law to be an aggravated felony for INA purposes, the IJ further found 

that the same categorical match applied to Petitioner’s two convictions 

for attempted robbery. Because there is no dispute that the same analysis 

applied in both instances, we need not separately address attempted 

robbery here.
8 ALFRED V. GARLAND

under federal law. Id. at 1208. This overbreadth, in the 

majority’s view, meant there could be no categorical match 

between the state statute of conviction and the generic 

federal definition of a drug trafficking crime.5 Id. at 1209. 

According to the IJ, Valdivia-Flores was nonetheless 

distinguishable because that case involved comparing the 

state offense to a federal generic offense defined by statute 

as opposed to an offense such as theft, which is defined with 

reference to federal case law.

The BIA affirmed, agreeing that the Washington statutes 

categorically qualified as aggravated felony theft offenses 

for immigration purposes, consequently rendering Petitioner 

removable. Petitioner then timely petitioned this court for 

review.

II

This court has jurisdiction under 8 U.S.C. § 1252, and 

we “review only the BIA’s opinion, except to the extent that 

it expressly adopted portions of the IJ’s decision.” 

Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019) 

(citation omitted). Where the BIA concurs with the 

reasoning employed by the IJ’s analysis, both decisions are 

reviewed. Garcia-Martinez v. Sessions, 886 F.3d 1291, 

1293 (9th Cir. 2018). Otherwise, however, a reviewing court 

must “confin[e] [its] review to a judgment upon the validity 

of the grounds upon which the [agency] itself based its 

5 8 U.S.C. § 1101(a)(43)(B) defines aggravated felony to include 

“illicit trafficking in a controlled substance (as defined in [21 U.S.C. 

§ 802]), including a drug trafficking crime (as defined in [ 18 U.S.C. 

§ 924(c)]).” 18 U.S.C. § 924(c) defines “drug trafficking crime” to mean 

“any felony punishable under the Controlled Substances Act (21 U.S.C. 

§ 801 et seq.), the Controlled Substances Import and Export Act 

(21 U.S.C. § 951 et seq.), or chapter 705 of title 46.”
ALFRED V. GARLAND 9

action.” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). 

This means that we “may affirm the BIA based only on ‘the 

explanations offered by the agency.’” Toor v. Lynch, 

789 F.3d 1055, 1064 (9th Cir. 2015) (quoting Arrington v. 

Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008)).

An agency’s legal determinations are generally reviewed 

“de novo, subject to established principles of deference.” 

Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). 

Factual findings, on the other hand, are reviewed for 

substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 

(9th Cir. 2011). Under the substantial evidence standard, 

“administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to 

the contrary.” 8 U.S.C. § 1252(b)(4)(B).

III

A.

An alien convicted of an “aggravated felony” at any time 

after entering the United States is subject to removal under 

the INA. See 8 U.S.C. § 1227(a)(2)(A)(iii). DHS bears the 

burden of proving removability by clear and convincing 

evidence. 8 U.S.C. § 1229a(c)(3)(A). The INA defines an 

aggravated felony offense as, among other things, “a theft 

offense (including receipt of stolen property) or burglary 

offense for which the term of imprisonment [is] at least one 

year.” 8 U.S.C. § 1101(a)(43)(G). The INA additionally 

makes it clear that an attempt or conspiracy to commit an 

aggravated felony under 8 U.S.C. § 1101(a)(43) is also 

deemed an aggravated felony. See 8 U.S.C. 

§ 1101(a)(43)(U). If any of Petitioner’s three state 

convictions qualify as an aggravated felony for INA 

purposes, the BIA’s removability decision was proper, and 

the other offenses need not be considered. See, e.g., INS v. 
10 ALFRED V. GARLAND

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 

courts and agencies are not required to make findings on 

issues the decision of which is unnecessary to the results they 

reach.”).

In evaluating whether a state statute qualifies as an 

aggravated felony for removal purposes, this court must 

“employ a ‘categorical approach’ to determine whether the 

state offense is comparable to an offense listed in the INA.” 

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The 

categorical approach requires comparison of “the elements 

of the statute forming the basis of the defendant’s conviction 

with the elements of the ‘generic’ crime” to determine 

whether the offense is an aggravated felony. See Descamps 

v. United States, 570 U.S. 254, 257 (2013).6 Those statutory 

elements, and not the underlying facts of the particular crime 

involved, govern the inquiry into determining whether a 

categorical match is present. See generally, EsquivelQuintana v. Sessions, 137 S. Ct. 1562, 1567–68 (2017).

The relevant generic offense here, as indicated above, is 

“a theft . . . or burglary offense for which the term of 

imprisonment [is] at least one year.” 8 U.S.C. 

§ 1101(a)(43)(G). The Ninth Circuit has defined generic 

“theft” for INA purposes as “a taking of property or an 

exercise of control over property without consent with the 

criminal intent to deprive the owner of the rights and benefits 

of ownership.” Alvarado-Pineda, 774 F.3d at 1202 (quoting 

6 While Descamps was decided in the context of the Armed Career 

Criminal Act (“ACCA”), both the ACCA and the INA employ the same 

categorial approach in analyzing whether a conviction triggers either a 

fifteen-year mandatory minimum sentence under ACCA, Mathis v. 

United States, 136 S. Ct. 2243, 2247–48 (2016), or removal for 

immigration purposes under the INA in accordance with Moncrieffe, 

respectively.
ALFRED V. GARLAND 11

United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th 

Cir. 2002) (en banc)).

Accordingly, if the required comparison between this 

generic federal offense and the Washington statute reveals a 

categorical match, then immigration consequences are 

triggered and, thus, Petitioner is removable. See RomanSuaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014). If we 

conclude, on the other hand, that the state statute reaches 

conduct falling outside of the generic federal definition, then 

the Washington statute and generic federal offense are not a 

categorical match. In other words, if the elements of the state 

conviction are broader than the generic federal definition, 

then the state conviction is not an aggravated felony, and 

Petitioner is not removable on those grounds. Mellouli v. 

Lynch, 135 S. Ct. 1980, 1986–88 (2015); Descamps, 

570 U.S. at 257; Ramirez v. Lynch, 810 F.3d 1127, 1130–31 

(9th Cir. 2016). Thus, in this case, our analysis begins and 

ends with Valdivia-Flores.

7

B.

The Washington statute underlying Petitioner’s 

conviction provides:

7 The Government’s reliance on Alvarado-Pineda is misplaced 

because the impact of accomplice liability on the aggravated felony 

analysis was not raised therein. Webster v. Fall, 266 U.S. 507, 511 

(1925) (“Questions which merely lurk in the record, neither brought to 

the attention of the court nor ruled upon, are not to be considered as 

having been so decided as to constitute precedents.”); see also Brecht v. 

Abrahamson, 507 U.S. 619, 631 (1993) (a court is free to address an issue 

on the merits, if that issue has not been “squarely addressed” by prior 

precedent). Given that Valdivia-Flores expressly addressed aiding and 

abetting liability, it binds us instead.
12 ALFRED V. GARLAND

A person commits robbery when he or she 

unlawfully takes personal property from the 

person of another in his or her presence 

against his or her will by the use or threatened 

use of immediate force, violence, or fear of 

injury to that person or his or her property or 

the person or property of anyone.

Wash. Rev. Code § 9A.56.190. Because, according to the 

Valdivia-Flores majority, it is well-established that aiding 

and abetting liability is implicit in every criminal charge, it 

must also be considered. Valdivia-Flores, 876 F.3d at 1207. 

The majority there explained how accomplice liability 

differs under the Washington statute as opposed to the 

generic federal definition:

Washington’s aiding and abetting statute 

state[s]: “A person is an accomplice . . . in the 

commission of a crime if . . . [w]ith 

knowledge that it will promote or facilitate 

the commission of the crime, he . . . solicits, 

commands, encourages, or requests such 

other person to commit it; or aids or agrees to 

aid such other person in planning or 

committing it.” Wash. Rev. Code 

§ 9A.08.020(3)(a)(i)–(ii) (1997) (emphasis 

added). In contrast, under federal law, “to 

prove liability as an aider and abettor the 

government must establish beyond a 

reasonable doubt that the accused had the 

specific intent to facilitate the commission of 

a crime by someone else.” United States v. 

Garcia, 400 F.3d 816, 819 (9th Cir. 2005) 

(emphasis added). Therefore, federal law 

requires a mens rea of specific intent for 
ALFRED V. GARLAND 13

conviction for aiding and abetting, whereas 

Washington requires merely knowledge.

Id.8 The difference between these mentes reae—specific 

intent and knowledge—matters, said the majority, because 

Washington’s knowledge mens rea9 captures more conduct 

than the federal specific intent mens rea, rendering 

accomplice liability in Washington overbroad compared to 

its federal counterpart. Valdivia-Flores, 876 F.3d at 1207–

08. In that case, the overbreadth meant that “Washington’s 

drug trafficking statute [was] overbroad compared to its 

federal analogue, and Valdivia-Flores’s conviction [could] 

not support an aggravated felony determination.” Id.

at 1209.

The Valdivia-Flores analysis binds us and requires that 

we consider and compare the mentes reae for accomplice 

liability here, albeit in reference to a different principal 

8 It is unclear how this last statement of the law (i.e., that federal law 

always requires specific intent for an aiding and abetting conviction) 

comports with the analysis set forth in Rosemond v. United States, 

572 U.S. 65 (2014), a case not addressed by the Valdivia-Flores

majority. See, e.g., Bourtzakis v. United States Attorney General, 

940 F.3d 616, 623 (11th Cir. 2019) (concluding that based on Rosemond

the Washington aiding and abetting mens rea is not significantly broader 

than the federal requirement). Because we are bound by ValdiviaFlores, however, we make no attempt to reconcile these authorities here.

9 Under Washington law, “[a] person knows or acts knowingly or 

with knowledge when: (i) [h]e or she is aware of a fact, facts, or 

circumstances or result described by a statute defining an offense; or 

(ii) [h]e or she has information which would lead a reasonable person in 

the same situation to believe that facts exist which facts are described by 

a statute defining an offense.” Wash. Rev. Code § 9A.08.010.
14 ALFRED V. GARLAND

offense.10 The Valdivia-Flores majority never reached the 

text of the drug trafficking statute in their analysis, and so 

our inquiry ends with accomplice liability as well. The 

overbreadth of Washington’s accomplice liability statute 

means there is no categorical match to the generic federal 

offense in this case either, and Petitioner’s second-degree 

robbery convictions cannot constitute aggravated felony 

theft offenses. Petitioner is therefore not removable under 

8 U.S.C. § 1227(a)(2)(A)(iii).

IV.

We grant the petition and remand for further 

consideration by the agency.

PETITION FOR REVIEW GRANTED, 

REMANDED.

10 Respondent’s attempt to distinguish Valdivia-Flores because it 

compared a state statute to a federal statute as opposed to what we are 

asked to do here—which is to compare a state statute to a generic theft 

offense—is unavailing. Respondent has not identified, nor have we 

found, any authority to suggest that this is a distinction with a difference. 

Both require comparisons between the state statute and an enumerated 

offense.

We note that in United States v. Door, 917 F.3d 1146 (9th Cir. 

2019), another panel of this court held that Valdivia-Flores did not apply 

to a categorical “crime of violence,” and distinguished between 

enumerated offense aggravated felonies and “crime of violence” 

aggravated felonies for the purposes of sentence enhancement. Because 

we are not faced with a “crime of violence” aggravated felony, we limit 

our analysis to aggravated felonies that require comparison to 

enumerated offenses, like 8 U.S.C. §§ 1101(a)(43)(B), (G).
ALFRED V. GARLAND 15

ENGLAND, District Judge, with whom BYBEE, Circuit 

Judge, joins, specially concurring:

Our holding may be compelled by precedent, but it is not 

compelled by reason. To the contrary, this case, as have 

countless others, “demonstrates the absurdity of applying the 

categorical approach.” Quarles v. United States, 139 S. Ct. 

1872, 1880 (2019) (Thomas, J., concurring).1 Not only did 

1 Indeed, we are far from the only jurists to decry our continued 

reliance on this broken approach. See, e.g., Lopez-Aguilar v. Barr, 

948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring) (“I write 

separately to add my voice to the substantial chorus of federal judges 

pleading for the Supreme Court or Congress to rescue us from the morass 

of the categorical approach. The categorical approach requires us to 

perform absurd legal gymnastics, and it produces absurd results.”

(citations omitted)); United States v. Escalante, 933 F.3d 395, 406–07 

(5th Cir. 2019) (Elrod, J.) (“In the nearly three decades since its 

inception, the categorical approach has developed a reputation for 

crushing common sense in any area of the law in which its tentacles find 

an inroad. . . . Perhaps one day the Supreme Court will consider revisiting 

the categorical approach and setting the federal judiciary down a 

doctrinal path that is easier to navigate and more likely to arrive at the 

jurisprudential destinations that a plain reading of our criminal statutes 

would suggest.” (footnotes omitted)); United States v. Williams, 

898 F.3d 323, 337 (3d Cir. 2018) (Roth, J., concurring) (“I write 

separately because of my concern that the categorical approach . . . is 

pushing us into a catechism of inquiry that renders these approaches 

ludicrous.”); Cradler v. United States, 891 F.3d 659, 672 (6th Cir. 2018) 

(Kethledge, J., concurring) (“Whatever the merits of [the categorical] 

approach, accuracy and judicial efficiency are not among them . . . .”); 

United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J., 

concurring) (“All good things must come to an end. But apparently bad 

legal doctrine can last forever, despite countless judges and justices 

urging an end to the so-called Taylor categorical approach.”); United 

States v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011) (en 

banc) (Bybee, J.) (“In the twenty years since Taylor, we have struggled 

to understand the contours of the Supreme Court’s [categorical 

approach] framework. Indeed, over the past decade, perhaps no other 
16 ALFRED V. GARLAND

we conduct an aggravated felony analysis without ever 

addressing the principal statute of conviction, but the record 

contains not even a hint that Petitioner might have pled 

guilty as an accomplice. In fact, quite the opposite, he very 

clearly acted alone. So what we have done today is rely on 

a theory of liability that assumes a crime was committed by 

someone else when it is undisputed that Petitioner himself—

and himself alone—committed the offense. We are 

engaging in an accomplice liability analysis that in any other 

context would be utterly irrelevant.2

More distressing, of course, is the fact that our analysis, 

and the analysis set forth in Valdivia-Flores, infects 

countless Washington criminal statutes. Indeed, as the 

Government argued in that case, it is quite possible that, at 

least for aggravated felonies that require comparison of all 

elements of the state crime and an enumerated generic 

federal offense, “no Washington state conviction can serve 

as an aggravated felony at all because of [the] accomplice 

liability statute.” Valdivia-Flores, 876 F.3d at 1209. Future 

panels, like this one, will never even need to turn to the 

area of the law has demanded more of our resources.”). This list is far 

from exhaustive. See, e.g., United States v. Scott, 990 F.3d 94, 125–27 

(2d Cir. 2021) (Park, J., concurring) (collecting cases). The author of 

Valdivia-Flores himself wrote a special concurrence criticizing the 

doctrine. Valdivia-Flores, 876 F.3d at 1210 (O’Scannlain, J., specially 

concurring) (“I write separately to highlight how [this case] illustrates 

the bizarre and arbitrary effects of the ever-spreading categorical 

approach for comparing state law offenses to federal criminal 

definitions.”).

2 All of this despite the fact that, as Judge Rawlinson observed in 

her dissent to Valdivia-Flores, the majority “[c]ited no precedent [for] 

skipping over the actual statute of conviction to plug a completely 

different statute into the [categorical] analysis.” Valdivia-Flores, 

876 F.3d at 1213.
ALFRED V. GARLAND 17

actual statute of conviction to determine one’s status as an 

aggravated felon. Id. at 1208–09. Yet the exact same 

conduct may qualify as an aggravated felony in a 

neighboring state.

Congress “could not have intended vast . . . disparities 

for defendants convicted of identical criminal conduct in 

different jurisdictions.” Mathis, 136 S. Ct. at 2258 

(Kennedy, J., concurring). The most basic logic tells us this 

cannot be right but, as we have seen countless times, the 

categorical approach is untethered from common sense. 

Absurd results are far from an anomaly.3

3 See, e.g., Quarles, 139 S. Ct. at 1880 (Thomas, J., concurring) 

(“The categorical approach relies on a comparison of the crime of 

conviction and a judicially created ideal of burglary. But this ideal is 

starkly different from the reality of petitioner’s actual crime: Petitioner 

attempted to climb through an apartment window to attack his exgirlfriend.”); Lopez-Aguilar, 948 F.3d at 1149–50 (Graber, J., 

concurring) (“As the majority opinion explains, Oregon Revised Statutes 

section 164.395 is not a categorical match for the generic theft offense 

because it incorporates consensual takings. But I can conceive of very 

few scenarios in which a defendant could use, or threaten the immediate 

use of, physical force against a third party while carrying out a taking 

that was consensual from the property owner’s perspective.”); United 

States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019) (Quattlebaum, J.) 

(“Through the Alice in Wonderland path known as the ‘categorical 

approach,’ we must consider whether Battle’s assault of a person with 

the intent to murder is a crime of violence. While the answer to that 

question might seem to be obviously yes, it is not so simple after almost 

30 years of jurisprudence beginning with Taylor.”); United States v. 

Burris, 912 F.3d 386, 407 (6th Cir. 2019) (en banc) (Thapar, J., 

concurring) (“A casual reader of today’s decision might struggle to 

understand why we are even debating if ramming a vehicle into a police 

officer is a crime of violence. The reader’s struggle would be 

understandable. The time has come to dispose of the long-baffling 

categorical approach.”); Ovalles v. United States, 905 F.3d 1231, 1253 
18 ALFRED V. GARLAND

Our current approach also puts attorneys in an untenable 

spot—whether they are litigating regarding immigration or 

criminal consequences—where they must argue against 

positions they would not normally advocate. The drive to 

show that state crimes of conviction are overbroad in 

comparison to their federal counterparts results in 

governments and prosecutors advocating for narrow 

readings of state criminal codes while defense counsel 

instead argue for expansion. On this point, Judge Owens 

most aptly described this mad transposition in the context of 

federal sentencing:

Here, one lawyer zealously argues that 

Washington law criminalizes a “conspiracy 

of one,” while the other lawyer strenuously 

contends for a narrower reading. Surely, the 

prosecutor is the one swinging for the fences, 

and the defense attorney the one pushing for 

lenity. In state court, you would be right. But 

we are in federal court, so a defense attorney 

ethically must play the role of the aggressive 

prosecutor, pushing for the most expansive 

reading of state law possible. She succeeded: 

she has established that the state law is 

broader than the federal law, so there is no 

categorical match, which favors her client. 

(11th Cir. 2018) (en banc) (Pryor, J., concurring) (“How did we ever 

reach the point where this Court, sitting en banc, must debate whether a 

carjacking in which an assailant struck a 13-year-old girl in the mouth 

with a baseball bat and a cohort fired an AK-47 at her family is a crime 

of violence? It’s nuts. And Congress needs to act to end this ongoing 

judicial charade.”); United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 

2016) (Wilkinson, J., concurring) (“[T]he categorical approach can serve 

as a protracted ruse for paradoxically finding even the worst and most 

violent offenses not to constitute crimes of violence.”).
ALFRED V. GARLAND 19

But this role reversal confirms that this is a 

really, really bad way of doing things. 

Defense attorneys should not be forced to 

argue for expanding criminal liability to 

benefit their clients, but in the Taylor Upside 

Down, that is what necessarily happened 

here.

Brown, 879 F.3d at 1051 (Owens, J., concurring). Only in 

the “Upside Down” would this make any sense.

All of the confusion left in the wake of the categorical 

approach undermines the legitimacy of our third branch of 

government. We know that bad facts make bad law. But in 

the case of the categorical approach, bad law makes even 

worse law time and again. “Instead of wasting more 

resources and interjecting more uncertainty into our . . .

decisions, either the Supreme Court or Congress should junk 

this entire system.” Id.

RAWLINSON, Circuit Judge, concurring in the result:

I concur in the result reached by the majority because, 

and only because, the decision reached by the majority is 

compelled by the majority opinion in United States v. 

Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017). However, 

for the reasons explained in my dissent to the majority 

opinion in Valdivia-Flores, the conclusion that convictions 

for second degree robbery do not constitute aggravated 

felonies makes no sense legally or factually. I guess when it 

comes to application of the Supreme Court’s contrived 

categorical approach, in the words of my dearly departed 

Mama Louise: common sense ain’t all that common.