I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.
It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam. Judge Milan Smith writes a dissent, joined by three other judges. And Judge Graber (joined by others) writes a concurrence to respond to the dissent (which argues that the court should reach an issue not raised by the opening brief regarding whether a recent en banc decision of the Ninth Circuit counsels reversal of the judgment below as plain error)
What makes this otherwise straightforward outcome slightly weird is that Judge Graber is joined by no less than five of her colleagues. In other words, the concurrence is joined by a majority of the court, and responds to a dissent joined by four judges. In short, it's a 7-4 decision, and 6 of the 7 want to say X as well, and yet the majority opinion does not contain the argument of the 6. As I presaged at the outset, the only judge not part of the 6 or the 4 is Judge Fletcher, who's vote on the point mathematically matters not.
Traditionally, you'd see the 6 judges write a majority opinion, the 4 judges write a dissent, and the one judge left out write a separate concurrence that says "I agree with the majority, but not with X." And yet, here, it's inverted, with the one judge (essentially) writing the majority opinion [though my sense from the writing is that Judge Fletcher wasn't the actual author] and a majority of the court writing a "concurrence". Weird.
The lineup is also not what you'd usually expect. It's a criminal case, so you've got your traditional splits, and yet here's who's on the defendant's side: Kozinski, Reinhardt, Thomas and Milan Smith. Now, the first two are occasional buddies both on and off the court, though typically more in civil liberties matters. But the latter two joining this mix; well, if there's ever been an en banc decision with only these four on one side, I certainly haven't seen it. A Carter, a Reagan, a Clinton, and a Bush II. Strange bedfellows. Especially when on the other side you've got the two remaining Bush I appointees and five Clintons. I don't remember such an ususual split in a non-snoozer sort of case (ERISA, state contract law, etc.) in a long time. Only adds to the weirdness.
As for the merits, you can read the relevant opinions. But I think Judge Smith does a fairly decent job of presenting the respective positions -- as well as advancing his own -- in the penultimate paragraph of the dissent:
"I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result."
So there you have it. An interesting case for sure.
