FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-10560

Plaintiff-Appellee, D.C. No.

v. 2:05-CR-00923-  FJM-1 RAYFORD TERRELL,

District of Arizona, Defendant-Appellant.

Phoenix

ORDER 

Filed September 13, 2010

Before: A. Wallace Tashima, Susan P. Graber and

Jay S. Bybee, Circuit Judges.

Order;

Dissent by Judge M. Smith

ORDER

The panel has voted to deny the petition for panel rehearing. Judges Graber and Bybee have voted to deny the petition

for rehearing en banc, and Judge Tashima has so recommended.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied. Judge M. Smith’s dissent from denial

of rehearing en banc is filed concurrently herewith.

13999
Judge M. SMITH, with whom Chief Judge KOZINSKI and

Judges PREGERSON and REINHARDT join, dissenting

from the denial of rehearing en banc:

Just one year ago, Chief Judge Kozinski presciently

observed that we had on our hands “a train wreck in the making.” United States v. Mayer, 560 F.3d 948, 951 (9th Cir.

2009) (Kozinski, C.J., dissenting from the denial of rehearing

en banc). For years we had become accustomed to applying

uniformly the Taylor categorical approach in our immigration

and criminal sentencing jurisprudence. Mayer ended that

practice. It developed a unique categorical approach for cases

involving the Armed Career Criminal Act (ACCA) and the

Sentencing Guidelines career offender provision. It also

expanded those provisions’ “residual clause” to cover nearly

any crime. Chief Judge Kozinski warned of the growing number of casualties that would result in our circuit following our

decision in Mayer. See id. at 954. Add Rayford Terrell as the

next name on that list, and expect it to grow after the panel’s

decision here.

In this case the panel holds that we can find a categorical

match—and apply a substantial sentence enhancement—

without reference to a single state case or other objective measure of whether the state offense falls within the definition of

the generic federal offense that Congress intended to be the

basis for enhancement. Apparently, a panel’s gut instinct is all

that matters. It also holds that a state offense that lacks one

of the generic crime’s key elements—key because it makes

the generic offense inherently violent—is “almost always” the

same offense as the corresponding generic crime. As a result,

we have officially abandoned the categorical approach in “residual clause” cases. Because I believe the panel’s approach

is contrary to the intent of Congress and Supreme Court case

law, I respectfully dissent from the court’s denial of rehearing

en banc.

14000 UNITED STATES v. TERRELL
I

Determining whether an offense falls within the ACCA’s

residual clause involves two distinct questions. First, we

examine the degree of risk associated with the crime to determine whether the offense “involves conduct that presents a

serious potential risk of physical injury to another,” 18 U.S.C.

§ 924(e)(2)(B)(ii). See James v. United States, 550 U.S. 192,

203 (2007) (“ask[ing] whether the risk posed by [the offense

at issue] is comparable to that posed by its closest analog

among the enumerated offenses—[burglary, arson, extortion,

or crimes that involve the use of explosives]”); Begay v.

United States, 553 U.S. 137, 141 (2008) (assuming that New

Mexico’s DUI statute involves conduct presenting such a

risk). If we determine that the degree of risk posed by the

offense is such that it presents a serious potential risk of physical injury to another, we move on to the second question:

whether the offense is “roughly similar, in kind as well as in

degree of risk posed” to the enumerated offenses in that it

“typically involve[s] purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 143-45 (internal quotation marks

omitted).

The fatal flaw in the panel’s analysis is that it ignores the

Supreme Court’s repeated instructions that we answer these

questions under the categorical approach first articulated in

Taylor v. United States, 495 U.S. 575, 602 (1990). See Begay,

553 U.S. at 141 (citing Taylor for “adopting this ‘categorical

approach’ ” and explaining that “[i]n determining whether this

crime is a violent felony, we consider the offense generically,

that is to say, we examine it in terms of how the law defines

the offense and not in terms of how an individual offender

might have committed it on a particular occasion”).

The categorical approach focuses on “the elements of the

crimes of which the defendant was previously convicted.”

United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990);

James, 550 U.S. at 202 (“[W]e consider whether the elements

UNITED STATES v. TERRELL 14001
of the offense are of the type that would justify its inclusion

within the residual provision, without inquiring into the specific conduct of this particular offender.”); United States v.

Riley, 183 F.3d 1155, 1158 (9th Cir. 1999) (recognizing that

under the categorical approach “we analyze only the elements

of the crime charged”). Under the residual clause, then, the

elements of the offense must satisfy: (1) James’s requirement

that the degree of risk associated with the crime presents a

serious potential risk of physical injury; and (2) Begay’s

requirement that the offense typically involves purposeful,

violent, and aggressive conduct. 

As to the Arizona sexual assault offense at issue in Terrell,

this means that we first ask whether “sexual intercourse or

oral sexual contact . . . without consent,” Ariz. Rev. Stat.

§ 13-1406(A), presents a serious risk of physical injury. I

agree that our decision in Riley, 183 F.3d at 1159, governs

this part of the analysis, because we held in Riley that nonconsensual sexual intercourse presents such a risk.

At step two of the analysis, we must ask whether the elements of Arizona sexual assault typically involve purposeful,

violent, and aggressive conduct. They do not. Under Arizona

law, sexual assault does not require the use of force, the threat

of force, or any sexual penetration. See Ariz. Rev. Stat. § 13-

1401(5)(b)-(d). Because the statute’s elements cover instances

in which the offender acts neither violently nor aggressively,

it does not categorically fall under Begay. See United States

v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc)

(“Where . . . a state statute explicitly defines a crime more

broadly than the generic definition, no ‘legal imagination,’ is

required to hold that a realistic probability exists that the state

will apply its statute to conduct that falls outside the generic

definition of the crime.” (citing Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007), which was cited with approval in

James, 550 U.S. at 208)). 

The panel’s opinion attempts to explain that Arizona sexual

assault involves “violent” and “aggressive” conduct because

14002 UNITED STATES v. TERRELL
the Supreme Court told us in Coker v. Georgia, 433 U.S. 584,

597-98 (1977), that Georgia’s rape law is a violent crime. See

United States v. Terrell, 593 F.3d 1084, 1090 (9th Cir. 2010).

I concede that reasonable minds may disagree on how one

should go about applying Taylor’s categorical approach and

what exactly the Supreme Court has in mind when it repeatedly tells us that we are not to consider “how an individual

offender might have committed [the offense] on a particular

occasion.” Begay, 553 U.S. at 141. But surely, in examining

a particular state offense before us under the categorical

approach, no one thinks we may look to what the Supreme

Court has said about another state’s entirely different offense.

Yet that is precisely what the Terrell panel does. Arizona’s

sexual assault law covers conduct very different from the

Georgia rape statute in Coker. The Georgia statute defined

rape as “having carnal knowledge of a female, forcibly and

against her will. Carnal knowledge in rape occurs when there

is any penetration of the female sex organ by the male sex

organ.” 433 U.S. at 586 n.1 (emphases added) (internal quotation marks omitted). The Arizona statute requires neither

force nor sexual penetration. See Ariz. Rev. Stat. § 13-

1401(3) (including “masturbatory contact” within the definition of “sexual intercourse”).

Nevertheless, relying on Coker and citing no Arizona cases,

the panel holds that while some cases prosecuted under the

Arizona law do not necessarily involve violence, the “typical”

case does, which is enough to create a categorical match with

Begay. Terrell, 593 F.3d at 1090. One is unable to discern

from the panel’s opinion how future panels, and more importantly future criminal defendants and their counsel, are to

determine when the “typical” offense involves “violent” and

“aggressive” conduct in the absence of an element in the state

offense requiring it.1 Mayer held that we determine the “typi1

Indeed, the panel’s interpretation of the role of “typicality” in this analysis draws the wrong lesson from Begay. “Typical” does not mean we can

UNITED STATES v. TERRELL 14003
cal” case by looking at whether “[m]ost of the cases” applying

the state statute involve such conduct. See Mayer, 560 F.3d at

961-62. Chief Judge Kozinski argued that Mayer’s “most of

the time” rule would prove difficult to administer. See id. at

952 (Kozinski, C.J., dissenting from the denial of rehearing en

banc). He was wrong in this case, but only because the panel

does not even bother to consult whether “most of the cases”

applying Arizona’s sexual assault offense involve “violent”

and “aggressive” conduct. It cites no Arizona cases whatsoever. 

In any event, Mayer’s “most of the time” rule was not correct either. The Supreme Court has given us at least one

ignore the definition of the state offense. It relates to conduct covered by

the elements of the state offense “in the ordinary case,” James, 550 U.S.

at 208, rather than some hypothetical case “in which even a prototypically

violent crime might not present a genuine risk of physical injury,” id. One

would think that if the Supreme Court meant to depart in Begay from this

long-standing understanding of Taylor’s categorical approach, it would

stop relying on the same cases over and over again when explaining how

to apply it. See Begay, 553 U.S. at 141 (citing Taylor); id. (citing James,

550 U.S. at 208-09, for the proposition that an offense “is a violent felony

even if, on some occasions, it can be committed in a way that poses no

serious risk of physical harm”); James, 550 U.S. at 207-09 (explaining that

Taylor’s categorical approach does not “requir[e] that every conceivable

factual offense covered by a statute must necessarily present a serious

potential risk of injury before the offense can be deemed a violent felony”

and citing Duenas-Alvarez, 549 U.S. at 193); id. at 208 (“[T]he proper

inquiry is whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk of injury to

another.” (emphasis added)); Duenas-Alvarez, 549 U.S. at 193 (“[T]o find

that a state statute creates a crime outside the generic definition of a listed

crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not

a theoretical possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime. To show that realistic

probability, an offender, of course, may show that the statute was so

applied in his own case. But he must at least point to his own case or other

cases in which the state courts in fact did apply the statute in the special

(nongeneric) manner for which he argues.”). 

14004 UNITED STATES v. TERRELL
approach for determining what type of conduct is involved in

the “typical” case that cannot be reconciled with either Mayer

or Terell. In Chambers v. United States, 129 S. Ct. 687, 692

(2009), the government attempted to show that typically, failure to report to a penal institution involves violence and

aggression by citing three cases clearly associating such violence and aggression with the offense. The Court rejected this

flimsy evidence, relying instead on a Sentencing Commission

report identifying every federal case over a period of two

years. Id.

Chambers teaches that we should rely on empirical data

when determining whether an offense “typically involve[s]

purposeful, violent, and aggressive conduct.” Begay, 553 U.S.

at 144-45 (internal quotation marks omitted).2 Without such

objective evidence we are left with nothing but a panel’s gut

instinct as to what constitutes a violent felony; or worse, comparison to inapposite statutes from other states. The law of our

circuit, when it comes to the ACCA, will turn on the arbitrary

composition of the panel hearing each case. This can’t be

what Congress intended when it passed a uniform sentencing

scheme for armed career offenders.

Terrell’s license to ignore objective indicia as to whether

the offense typically involves violent and aggressive conduct

has now been officially sanctioned by our court. This will

only lead to more decisions like it. Already, our court has held

that a theft statute encompassing pickpocketing constitutes a

“crime of violence.” See United States v. Alderman, 601 F.3d

949, 953-54 (9th Cir. 2010); see also State v. Johnson, 97

Wash. App. 1055 (Ct. App. 1999) (per curiam) (unpublished)

(upholding a conviction under the theft statute at issue in

Alderman where one teenager took twenty dollars from

another teenager without his permission); see also Thomas W.

2At the very least, we should be pointing to an illustrative list of cases,

from the jurisdiction in question, to show that the state offense is the kind

of serious felony Congress intended to merit sentencing enhancement. 

UNITED STATES v. TERRELL 14005
Hutchison et al., Federal Sentencing Law and Practice 1409

(2010) (questioning whether offenses such as pickpocketing

should be considered a “crime of violence” under the residual

clause absent empirical evidence that the offense will result in

physical injury).

The insidious nature of the panel’s treatment of the residual

clause is even clearer in the panel’s treatment of burglary

under Arizona and Missouri law. The panel recognized that

burglary under Arizona and Missouri law is defined more

broadly than generic burglary. Neither burglary statute limits

itself to unmovable structures, which is what the generic definition requires. See Grisel, 488 F.3d at 848-49. Arizona’s

statute does not even require unlawful entry. See Taylor, 495

U.S. at 598. Despite these categorical differences, the panel

holds that a state burglary offense, no matter how much it

may stray from the generic definition, is categorically “almost

always” a violent felony. See Terrell, 593 F.3d at 1095. Our

refusal to rehear this case means that we are developing a

“catch all categorical approach,” one which renders superfluous the question whether the state offense meets the enumerated offense’s generic definition. See also United States v.

Matthews, 374 F.3d 872, 876 (9th Cir. 2004) (“[E]ven though

certain conduct (whether defined categorically or by a modified categorical approach) may present a serious potential risk

of physical injury to another, it may still be excluded under

the [residual] clause if including it would render the inclusion

of the [enumerated offense] surplusage.”). 

If the state offense of conviction is missing critical elements of the enumerated offense’s generic definition that

make the offense inherently violent, the state offense clearly

cannot “almost always” categorically involve the same purposeful, violent, and aggressive conduct as the enumerated

offense. When the Supreme Court held in Begay that the enumerated offenses all typically involve purposeful, violent, and

aggressive conduct, it did so in light of those offenses’

generic definitions. See Begay, 553 U.S. at 145 (generically

14006 UNITED STATES v. TERRELL
defining burglary, arson, and extortion). In other words, a burglar who commits generic burglary, i.e., who enters a building

unlawfully with intent to commit a crime, evinces “purposeful,” “violent,” and “aggressive” conduct. That’s not necessarily true for a burglar who enters lawfully. Nobody would

suggest that shoplifting is violent and aggressive, but the

panel decision will likely send some felons to prison for 15

years because they got caught shoplifting in the past. See

State v. Belcher, 776 P.2d 811, 812 (Ariz. Ct. App. 1989)

(“The requisite intent to commit burglary may be formed after

a person enters a store in all innocence.”).

The panel reasons that the distinction between lawful and

unlawful entry is inconsequential, since the Court in James

held that attempted burglary, which requires no entry at all,

posed the same risks as generic burglary. See Terrell, 593

F.3d at 1094-95. But the panel’s cursory analysis ignores the

fundamental role of this particular missing element. In James,

the Court noted that “[a]ll burglaries begin as attempted burglaries,” and explained that attempted burglaries—that is,

attempts to enter a building unlawfully—where the offender

is apprehended before he completes the burglary, may present

an even greater risk than the typical completed burglary.

James, 550 U.S. at 204. For support, the Court relied on the

fact that the Sentencing Guidelines include attempt crimes in

its definition of a “crime of violence,” a “judgment . . . based

on the Commission’s review of empirical sentencing data and

presumably reflect[ing] an assessment that attempt crimes

often pose a similar risk of injury as completed offenses.” Id.

at 206.3 In other words, the Court in James reasoned that

3The Court’s reliance on empirical data provides further support for the

notion that we should be employing such information in determining

which crimes should be categorized as violent felonies. Indeed, relying on

a 1992 opinion by then-Chief Judge Breyer, the James Court explained

that “the Commission, which collects detailed sentencing data on virtually

every federal criminal case, is better able than any individual court to

make an informed judgment about the relation between a particular

offense and the likelihood of accompanying violence.” 550 U.S. at 206

(internal quotation marks and brackets omitted). 

UNITED STATES v. TERRELL 14007
attempting to enter unlawfully perhaps poses an even greater

risk of injury than entering unlawfully and seeing the burglary

through to its completion. It doesn’t support the panel’s theory, which we’ve now endorsed by refusing to rehear this

case. Unlike the Court in James, the panel here provides no

“empirical sentencing data” to support its view that Arizona’s

burglary offense is “even more like generic burglary than the

statute in James.” Terrell, 593 F.3d at 1095. All we have is

the panel’s gut instinct.

II

The panel’s decision does not just allow future panels to

ignore the presence of the ACCA’s enumerated offenses. It

also does the same for those crimes the Sentencing Commission has listed as prototypical “crime[s] of violence” under

the Sentencing Guidelines.

The Sentencing Guidelines define a “crime of violence”

nearly identically to the ACCA’s definition of “violent felony.” Compare 18 U.S.C. § 924(e)(2)(B), with U.S.S.G.

§ 4B1.2(a). As a result, we have always interpreted the two

provisions “in a parallel manner,” see, e.g., United States v.

Jennings, 515 F.3d 980, 990 n.11 (9th Cir. 2008), and recently

held that “the same analysis the Court applied in Begay” controls whether an offense constitutes a “crime of violence”

under Guideline § 4B1.2, United States v. Coronado, 603

F.3d 706, 710 (9th Cir. 2010). Indeed, as discussed above, the

Court has turned to the definition of “crime of violence” in

the Sentencing Guidelines for support in determining what

constitutes a “violent felony” under the ACCA. See James,

550 U.S. at 206-07.

In addition to the four enumerated crimes that appear at the

beginning of the residual clause, the Application Notes to section 4B1.2 enumerate additional “crime[s] of violence.” See

U.S.S.G. § 4B1.2 cmt. n.1. The Guidelines provide:

14008 UNITED STATES v. TERRELL
“Crime of violence” includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling. Other offenses are

included as “crimes of violence” if (A) that offense

has as an element the use, attempted use, or threatened use of physical force against the person of

another, or (B) the conduct set forth (i.e., expressly

charged) in the count of which the defendant was

convicted involved use of explosives (including any

explosive material or destructive device) or, by its

nature, presented a serious potential risk of physical

injury to another. 

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).

Following the Supreme Court’s ejusdem generis analysis in

Begay, we must read these offenses as “limiting the crimes

that [the residual clause] covers to crimes that are roughly

similar, in kind as well as in degree of risk posed, to the

examples themselves.” Begay, 553 U.S. at 143. The the list of

enumerated offenses “indicates that the statute covers only

similar crimes, rather than every crime that ‘presents a serious

potential risk of physical injury to another.’ ” Id. at 142.

In its list of offenses, the Sentencing Commission tells us

that “forcible sex offenses” are to be considered crimes of

violence. In United States v. Beltran-Munguia, 489 F.3d

1042, 1051 (9th Cir. 2007), we held that the term “forcible

sex offenses” in the Sentencing Guidelines requires the use of

force. There, we examined a conviction for sexual abuse

under Oregon law. We held that it was not a conviction for

a “crime of violence” because the Oregon offense, like the

Arizona offense at issue in Terrell, required merely a lack of

consent, which could be proven if the victim was mentally

defective, mentally incapacitated, or physically helpless. Id. at

1046. Although our court later held that “[f]orcible sex

offenses . . . require more force than that inherent to penetraUNITED STATES v. TERRELL 14009
tion but need not require violent force,” United States v.

Bolanos-Hernandez, 492 F.3d 1140, 1146 (9th Cir. 2007), we

still require a showing that the defendant has used or

attempted at least some level of force on the victim,” id. Arizona requires neither force—violent or not—nor penetration.

The panel thus introduces a serious incongruity between

our circuit law on the ACCA’s residual clause and the Sentencing Guidelines: To qualify as a “crime of violence,”

“forcible sex offenses” must involve at least some level of

force; yet as a result of the panel’s opinion, sex offenses that

do not require any force will somehow qualify as both “violent felonies” and “crimes of violence” because they “otherwise involve[ ] conduct that presents a serious potential risk

of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii);

U.S.S.G. § 4B1.2(a)(2). Such a result is both irrational, and

irreconcilable with Begay. There the Court’s majority “rejected the approach of the dissent, which would have analyzed

the risk of harm posed by the behavior without regard for

whether the defendant’s crime involved ‘purposeful, violent,

and aggressive’ conduct.” United States v. Christensen, 559

F.3d 1092, 1095 (9th Cir. 2009).

In contrast, the holdings of Beltran-Munguia and BolanosHernandez are entirely consistent with Begay and James. For

a sexual offense to constitute a “crime of violence” it must

include “at least some level of force on the victim.” BolanosHernandez, 492 F.3d at 1146. Such a requirement ensures that

the offender engaged in “purposeful, violent, and aggressive

conduct,” and “effectuate[s] Congress’ purpose to punish only

a particular subset of offender, namely career criminals.”

Begay, 553 U.S. at 147. And as the Court explained in James

with respect to attempt crimes, the Commission’s decision to

include “forcible sex offenses” as the type of sexual offense

it considers to be a “crime of violence” reflects its considered

view that “forcible sex offenses” involve the requisite degree

of risk and accompanying violence. See James, 550 U.S. at

206-07. 

14010 UNITED STATES v. TERRELL
While the residual clause covers crimes not enumerated in

the statute, Begay makes clear that the list of enumerated

offenses “indicates that the statute covers only similar

crimes.” 553 U.S. at 142. An offense that does not require

force, the threat of force, or sexual penetration, is simply not

similar to a “forcible sex offense.”

III

The panel has effectively rendered the residual clause a

catch all clause, potentially turning every recidivist into a violent, armed career criminal for sentencing purposes. The categorical approach we once used uniformly has been expanded

beyond recognition, without regard to the offenses meant to

limit its scope. The tail, according to the panel, now officially

wags the dog. I respectfully dissent. 

UNITED STATES v. TERRELL 14011