United States v. Aguila-Montes De Oca

RAWLINSON, Circuit Judge, concurring in part and dissenting in part, joined by Judges SILVERMAN, GOULD and CALLAHAN:

I agree with and join Parts I-IV of the majority opinion explaining why we should reverse our prior ruling in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc). However, I respectfully dissent from the balance of the opinion applying the modified categorical approach to the facts of this case.

Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of…