United States v. Flores-Cordero

In Arizona, a conviction for resisting arrest does not authorize a sixteen-level sentencing increase because it is not categorically a crime of violence, and it is only appropriate to apply a modified categorical approach when a prior conviction is divisible.

Margarito Flores-Cordero pled guilty to reentry providing that the presentence report did not reflect a “prior crime of violence conviction.” The report reflected a prior Arizona conviction for “resisting arrest,” which the district could held was a crime of violence. The Ninth Circuit’s determination of whether resisting arrest was a “crime of violence” authorizing a sixteen-level sentencing increase rested on an analysis of the Arizona statute and recent controlling decisions. Under federal laws, a prior crime is considered violent if physical force is involved. The Arizona statute that criminalizes resisting arrest requires “use of actual physical force” or threatened use of physical force with a “risk of physical injury.” From the decision in State v. Lee, it was determined that, under federal Sentencing Guidelines, being convicted of resisting arrest in Arizona is not categorically a crime of violence. Therefore, Flores-Cordero’s prior Arizona conviction for resisting arrest was not categorically a crime of violence. However, the case needed to be remanded in order for the district court to determine if Flores-Cordero’s prior conviction was one of violence. The Supreme Court’s decision in Descamps v. United States established that when a prior conviction statute is indivisible, a modified categorical approach should not be applied. Since the statute Flores-Cordero was convicted under is not a divisible statute, it would not be appropriate to remand for application of the modified categorical approach. VACATED and REMANDED.