United States v. Jorge Cisneros
826 F.3d 1190
9th Cir.2016Background
- Cisneros pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The government sought an ACCA enhancement (15-year mandatory minimum) under 18 U.S.C. § 924(e).
- The government relied on six prior convictions as ACCA predicates: one conspiracy to deliver a controlled substance (ORS §§ 161.450, 475.752), three counts of fleeing/eluding (ORS § 811.540(1)), and two first-degree burglary convictions (ORS §§ 164.215, 164.225).
- The district court treated all six priors as qualifying and imposed the ACCA mandatory minimum.
- After the Supreme Court invalidated ACCA’s residual clause (Johnson), the Ninth Circuit reexamined whether at least three priors remained qualifying predicates without the residual clause.
- The panel found the drug-conspiracy prior conceded as a serious drug offense, the fleeing convictions conceded and held not qualifying, and analyzed whether Oregon first-degree burglary is a categorical match to generic burglary.
- The court concluded Oregon’s burglary statute is overbroad and indivisible; therefore the burglary convictions do not qualify as ACCA violent-felony predicates, vacated the ACCA sentence, and remanded for resentencing without the enhancement.
Issues
| Issue | Plaintiff's Argument (Gov’t) | Defendant's Argument (Cisneros) | Held |
|---|---|---|---|
| Whether Cisneros has three ACCA predicate convictions | At least three priors (including two OR burglary convictions) qualify to trigger ACCA | Only one admitted serious-drug prior; other priors do not meet ACCA without residual clause | No — fewer than three qualifying priors without the residual clause, so ACCA inapplicable |
| Whether ORS § 164.225 (first-degree burglary) is a categorical match to generic burglary | Oregon burglary convictions are predicate violent felonies | Oregon statute is broader and therefore does not categorically match | Oregon first-degree burglary is overbroad and not a categorical match |
| Whether ORS § 164.225 is divisible (allowing the modified categorical approach) | If divisible, Shepard documents can show generic burglary | The statute’s alternative wording are means, not separate elements, so it is indivisible | Statute is indivisible; modified categorical approach not available |
| Whether ORS fleeing/eluding convictions qualify as ACCA predicates | Arguably present serious risk / violent character | Government conceded they are not violent felonies or serious drug offenses | They do not qualify as ACCA predicates |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (established categorical/modified categorical framework for predicate-offense analysis)
- Taylor v. United States, 495 U.S. 575 (1990) (defined generic burglary elements for ACCA purposes)
- United States v. Parry, 479 F.3d 722 (9th Cir. 2007) (construed Oregon drug-conspiracy prior as serious drug offense)
- United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (held Oregon burglary statutes broader than generic burglary)
- Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2015) (explained divisibility inquiry and elements-vs-means analysis)
- Shepard v. United States, 544 U.S. 13 (2005) (limited documents permissible under modified categorical approach)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel bound by prior Ninth Circuit precedent)