United States v. Jorge Cisneros

763 F.3d 1236

9th Cir.

2014

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Docket

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Armando CISNEROS, Defendant-Appellant.

No. 13-30066.

United States Court of Appeals, Ninth Circuit.

Filed Aug. 19, 2014.

Submitted May 13, 2014.*

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Brian C. Butler (argued), Assistant Federal Public Defender, Federal Public Defender‘s Office, Medford, OR, for Defendant-Appellant.

Douglas W. Fong (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; and S. Amanda Marshall, United States Attorney, Office of the United States Attorney, Medford, OR, for Plaintiff-Appellee.

Before: ALFRED T. GOODWIN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

Jorge Armando Cisneros appeals the district court‘s decision that six of his past convictions—three convictions for fleeing or attempting to elude a police officer, two convictions for first-degree burglary, and one conviction for conspiracy to commit delivery of a controlled substance—qualify as predicate offenses under the Armed Career Criminal Act (“ACCA“). See 18 U.S.C. § 924(e). Cisneros concedes that his drug offense qualifies as an ACCA predicate offense under United States v. Parry, 479 F.3d 722, 724-25 (9th Cir. 2007).¹ Therefore, only two more of his convictions must qualify as ACCA predicate offenses for Cisneros to receive ACCA‘s mandatory minimum sentence of 180 months’ imprisonment. See 18 U.S.C. § 924(e)(1).

Cisneros‘s three convictions for fleeing or attempting to elude police officers under Oregon Revised Statutes section 811.540(1) constitute “violent felon[ies]” under ACCA‘s residual clause. Because section 811.540(1) contains alternative elements for fleeing from a police officer in a vehicle and fleeing on foot, the statute is divisible. See Descamps v. United States, — U.S. —, 133 S. Ct. 2276, 2284, 186 L. Ed. 2d 438 (2013). We may therefore review the charging documents to confirm that Cisneros was convicted for vehicular flight, see id. at 2284, which constitutes a “violent felony” under ACCA‘s residual clause, see United States v. Snyder, 643 F.3d 694, 699-700 (9th Cir. 2011). Given Cisneros‘s three convictions under section 811.540(1) and his drug offense, the district court properly sentenced Cisneros to 180 months’ imprisonment under ACCA. See 18 U.S.C. § 924(e)(1).

Nevertheless, because the district court also decided that Cisneros‘s convictions for first-degree burglary qualified as predicate offenses, we address those convictions as well. We have already held that a conviction for first-degree burglary under Oregon Revised Statutes section 164.225 qualifies as a “violent felony” under ACCA‘s residual clause. United States v. Mayer, 560 F.3d 948, 954 (9th Cir. 2009). Because the Supreme Court “express[ed] no view” on Mayer when it decided Descamps, 133 S. Ct. at 2293 n. 6, Mayer remains the law of the Ninth Circuit. Thus, Cisneros‘s past convictions under Oregon Revised Statutes sections 811.540(1)(A) and 164.225 qualify as predicate offenses under ACCA. Accordingly, we affirm the district court.

FACTS

On November 26, 2012, Cisneros pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government sought to enhance Cisneros‘s sentence under ACCA. See 18 U.S.C. § 924(e). The government based its proposed sentence enhancement on six of Cisneros‘s prior convictions: three convictions for fleeing or attempting to elude a police officer, Or. Rev. Stat. § 811.540(1), two convictions for first-degree burglary, id. § 164.225, and one conviction for conspiracy to deliver a controlled substance, see id. §§ 161.450, 475.752. The district court held that all six of the prior convictions qualified as ACCA predicate offenses and sentenced Cisneros to the mandatory minimum of 180 months in prison.

STANDARD OF REVIEW

We review de novo whether Cisneros‘s prior convictions qualify as predicate offenses under ACCA. United States v. Chandler, 743 F.3d 648, 650 (9th Cir. 2014).

DISCUSSION

ACCA prescribes a mandatory minimum sentence of fifteen years imprisonment for any felon who unlawfully possesses a firearm and who has three or more prior convictions for a “violent felony.” See 18 U.S.C. § 924(e)(1). Under ACCA‘s “residual clause,” the definition of “violent felony” includes any crime punishable by more than one year‘s imprisonment that “involves conduct that presents a serious potential risk of physical injury to another.” See id. § 924(e)(2)(B)(ii).

We have previously held that convictions pursuant to Oregon‘s first-degree burglary statute and Oregon‘s fleeing or attempting to elude a police officer statute qualify as violent felonies under ACCA‘s residual clause. See Snyder, 643 F.3d at 699-700 (fleeing or attempting to elude a police officer); Mayer, 560 F.3d at 954 (first-degree burglary). After we decided Snyder and Mayer, the Supreme Court clarified that, in deciding whether a conviction qualifies as a violent felony under ACCA, courts may not review documents relevant to the conviction “when the crime of which the defendant was convicted has a single, indivisible set of elements.” Descamps, 133 S. Ct. at 2282.

Cisneros argues that Descamps implicitly overruled Snyder and Mayer. “Although a three judge panel normally cannot overrule a decision of a prior panel on a controlling question of law, we may overrule prior circuit authority without taking the case en banc when an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.” Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002) (internal quotation marks and citation omitted). However, Descamps did not undermine Snyder or Mayer; both cases remain the law of the Ninth Circuit.

1. Attempting to Elude a Police Officer.

In Oregon,

[a] person commits the crime of fleeing or attempting to elude a police officer if:

(a) The person is operating a motor vehicle; and

(b) A police officer ... gives a visual or audible signal to bring the vehicle to a stop, ... and either:

(A) The person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer; or

(B) The person gets out of the vehicle and knowingly flees or attempts to elude the police officer.

Or. Rev. Stat. § 811.540(1). Snyder held that violating this statute‘s prohibition on vehicular flight constitutes a violent felony under ACCA‘s residual clause. See 643 F.3d at 699. Snyder relied on Sykes v. United States, — U.S. —, 131 S. Ct. 2267, 180 L. Ed. 2d 60 (2011), in which the Supreme Court held that an Indiana statute prohibiting vehicular flight qualified as a violent felony, “because, as a categorical matter, the prohibition falls within [ACCA‘s] residual clause in that vehicle flight presents a serious potential risk of physical injury to another.” 643 F.3d at 699 (citing Sykes, 131 S. Ct. at 2275-76). Comparing the portion of the Oregon statute that prohibits vehicular flight to the Indiana statute, Snyder held that the “statute at issue in Sykes is similar enough to the statute at issue here that the Supreme Court‘s Sykes ruling controls this case.” Id.

Our analysis in Snyder could prove problematic, because we zeroed in on vehicular flight after reviewing the indictment in Snyder‘s case, see id., a practice Descamps allows only when the statute is divisible, 133 S. Ct. at 2281-82. Of course, Snyder predates Descamps, which means we had no reason to embark on a divisibility inquiry at the time we decided Snyder. Thus, we must now answer the question we had no reason to ask in Snyder (whether section 811.540(1) is divisible).

If section 811.540(1) is divisible, Snyder‘s review of the indictment would be permissible—even post-Descamps. Consequently, Snyder would remain good law, and a violation of section 811.540(1) by vehicular flight would qualify as a violent felony. However, if section 811.540(1) is indivisible, Snyder‘s review of the indictment would be prohibited by Descamps. Under these circumstances, we would be required to consider the statute anew, as a whole, rather than relying on Snyder‘s analysis, which focused on vehicular flight.

We have little problem concluding that Oregon‘s fleeing or attempting to elude a police officer statute is divisible. By separating flight in a vehicle and flight on foot, the statute “lists multiple, alternative elements, and so effectively creates ‘several different ... crimes.‘” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). In fact, the statute separates itself into two different crimes, dictating flight in a vehicle constitutes a felony while flight on foot constitutes a misdemeanor. Or. Rev. Stat. § 811.540(3).

Oregon‘s jury instructions support the conclusion that the statute is divisible: section 811.540(1)(b)(A) uses an entirely different instruction than section 811.540(1)(b)(B). See UCrJI 2720 (“Fleeing or Attempting to Elude a Police Officer (While Still in the Vehicle)“); UCrJI 2721 (“Fleeing or Attempting to Elude a Police Officer (Out of the Vehicle)“). According to the jury instructions, both crimes require that the state prove five elements. Four of the elements are the exact same, but the fifth element is different for each crime. Compare UCrJI 2720 (“[Defendant‘s name], while still in the vehicle, knowingly fled or attempted to elude a pursuing police officer.“) with UCrJI 2721 (“[Defendant‘s name] got out of the vehicle and knowingly fled or attempted to elude the police officer.“). These alternative elements make the statute divisible. See Descamps, 133 S. Ct. at 2285.

Cisneros insists that Snyder‘s failure to address divisibility, as required by Descamps, means that Snyder no longer carries any precedential value. However, Descamps‘s imposition of a divisibility requirement does not give us carte blanche to run roughshod over all of Snyder‘s legal conclusions. Intervening Supreme Court authority only overrules past circuit precedent to the extent that the Supreme Court decision “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” See Miller, 335 F.3d at 900. The divisibility of section 811.540(1) means Snyder can be reconciled with Descamps. We are therefore duty-bound to follow Snyder.

In sum, Oregon Revised Statutes section 811.540(1), which prohibits flight or eluding a police officer, is divisible as to flight on foot and flight in a vehicle. See Descamps, 133 S. Ct. at 2285. Pursuant to Descamps, a court reviewing a conviction under section 811.540(1) may consult permissible documents to determine which alternative element played a part in the defendant‘s conviction. See id. at 2283; see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that under the modified categorical approach, a court “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented“). Where these documents show that the defendant was convicted of vehicular flight under section 811.540(1)(b)(A), the conviction constitutes a “violent felony” under the residual clause of ACCA. See Snyder, 643 F.3d at 699.

In the case at hand, all three of Cisneros‘s indictments for fleeing or attempting to elude a police officer use identical language, except for the date of the offense and the premises on which the offense was committed:

The defendant, on or about [date], in Jackson County, Oregon, being an operator of a motor vehicle upon [a public highway/premises open to the public], and having been given a visible and audible signal to stop by a police officer, who was operating a vehicle appropriately marked showing it to be an official police vehicle, did unlawfully and knowingly, while still in the vehicle, attempt to elude the police officer.

Each indictment establishes that Cisneros was convicted of vehicular flight pursuant to Oregon Revised Statutes section 811.540(1)(b)(A). Therefore, all three of Cisneros‘s convictions for fleeing or attempting to elude police officers qualify as violent felonies under ACCA‘s residual clause.²

2. First-degree burglary in Oregon.

In Oregon, a person commits the crime of first-degree burglary “if the person enters or remains unlawfully in a building with intent to commit a crime therein,” Or. Rev. Stat. § 164.215, and “the building is a dwelling,” id. § 164.225. Cisneros argues that Oregon‘s first-degree burglary statute does not qualify as a violent felony under ACCA‘s residual clause. We reached the opposite conclusion in Mayer, 560 F.3d at 954. We reasoned that the appropriate inquiry was whether, “‘in the ordinary case,’ conduct falling within the state statute presents” a serious potential risk of physical injury. Id. at 960 (quoting James, 550 U.S. at 208). In making that inquiry, we concluded that the statute fell within ACCA‘s residual clause, because it “categorically poses a serious potential risk of physical injury to people present in a dwelling at the time of a burglary, and to people in the immediate area of a building if a confrontation does occur.” Id. at 963.

Cisneros again asserts that Descamps constitutes intervening, superseding Supreme Court authority. He argues that Mayer impermissibly “engaged in the kind of fact-based inquiry rejected by the Supreme Court in Descamps.” However, Cisneros points to nothing in Mayer‘s analysis to show that the Mayer court looked at the facts underlying Mayer‘s conviction.

Instead, Cisneros disagrees with how Mayer applied ACCA‘s residual clause to Oregon‘s first-degree burglary statute. Specifically, he argues that the “proper inquiry is not how the statute is interpreted most of the time, but whether it has been interpreted to include conduct that does not involve dangerous conduct.” In effect, Cisneros takes issue with Mayer‘s use of an inquiry focused on the “ordinary case.”

However, Mayer‘s decision to use the ordinary-case analysis has nothing to do with the kind of fact-based inquiry rejected by the Supreme Court in Descamps. Descamps did not address how the categorical approach should be applied in the context of ACCA‘s residual clause, because the government forfeited its residual clause argument. 133 S. Ct. at 2293 n. 6. More to the point, Descamps went out of its way to make clear that it “express[ed] no view” on Mayer‘s holding. Id. This explicit disclaimer means Descamps could not have disturbed Mayer‘s conclusion that a “prior conviction for first-degree burglary in Oregon [is] a predicate ‘violent felony’ under the residual clause of the [ACCA].” See 560 F.3d at 954. Mayer therefore applies to Cisneros‘s first-degree burglary convictions, which means those convictions qualify as violent offenses for purposes of ACCA.³

CONCLUSION

Cisneros‘s convictions in Oregon for fleeing or attempting to elude police officers and first-degree burglary qualify as predicate offenses under ACCA‘s residual clause. Therefore, the district court did not err in sentencing Cisneros to the minimum 180 months’ imprisonment prescribed by ACCA.

AFFIRMED.

Notes

We reject Cisneros‘s argument that was wrongly decided, as a “three judge panel may not overrule a prior decision of the court.” (en banc).

We reject Cisneros‘s claim that ACCA‘s residual clause is unconstitutionally vague. See .

Because Oregon‘s first-degree burglary statute qualifies as a violent felony under ACCA‘s residual clause, we need not decide whether it also qualifies as a violent felony under ACCA‘s burglary clause.

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