United States v. Jose Valdivia-Flores

O’SCANNLAIN, Circuit Judge,

specially concurring.

Although the result in this case is dictated by the case law of the Supreme Court and our Circuit, I write separately to highlight how it illustrates the bizarre and arbitrary effects of the ever-spreading categorical approach for comparing state law offenses to federal criminal definitions. I am hardly the first federal circuit judge, to express puzzlement at how the categorical approach has come to be applied. See, e.g., United States v. Doctor, 842 F.3d 306, 312 (4th Cir. 2016) (Wilkinson, J., concurring); United States v. Faust, 853 F.3d 39,…