Dissenting Opinion
with whom Judges REINHARDT and W. FLETCHER join, dissenting from the denial of rehearing en banc:
This is a train wreck in the making.
The panel cleaves a formerly uniform doctrine — the Taylor categorical approach — into two branches. One approach for most things; a separate, incompatible version for a single clause of the Armed Career Criminal Act. This approach is novel, difficult to administer and will encourage future panels to splinter the categorical approach into even smaller pieces. That’s not all: The panel also reads ACCA’s residual clause so broadly that nearly any crime will qualify. And it does so by embracing an argument that the Supreme Court rejected this Term, in an opinion on which the ink is barely dry. This is precisely the sort of case we need to take en banc in order to prevent serious damage to the fabric of our circuit law.
1. The categorical approach of Taylor v. United States,
This case is about whether Oregon’s first-degree burglary statute is a crime of violence. There are two ways that it could be. First, it could qualify as a generic Taylor burglary; second, it could fall under the statute’s residual clause, which covers crimes that present a “serious potential risk of physical injury.” The panel quickly recognizes that Oregon’s burglary statute doesn’t qualify as generic burglary. United States v. Mayer,
To determine whether this is the case, the panel needs to ask a simple question: Does Oregon’s burglary statute only reach
Instead of asking and answering this simple question, the panel comes up with a new, complicated question to ask: Do “[m]ost of the cases” under the state statute involve dangerous conduct? Mayer,
A great virtue of the categorical approach has been its consistency across doctrinal areas. Immigration cases that explain it, like Duenas-Alvarez, can be applied to ACCA. E.g. James v. United States,
By creating a side-spur just for ACCA’s residual clause, the panel has laid the groundwork for major confusion. This is especially true given that we have already applied the ordinary categorical approach to every other part of the same statutory sentence: the enumerated offenses of burglary, United States v. Grisel,
Now, circle back to that question about the legal basis for this needless innovation: There is none. The panel says, quoting James, that not “every conceivable factual offense covered by a statute” need fall within the generic federal definition for it
The panel has dragged us far out of the mainstream. We now have the dubious distinction of being the only federal court in the country to hold that there are two categorical approaches: one for most situations and another one for the ACCA’s residual clause. It’s going to be a tough regime to administer, and wrong to boot.
2. But there’s more. Congress didn’t intend ACCA “to be all-encompassing,” or it wouldn’t have included the enumerated crimes at all. Begay v. United States, — U.S. —,
The panel adopts an argument that stretches the residual clause beyond recognition: Oregon’s burglars are dangerous, says the panel, because they might turn violent if apprehended. Mayer,
The validity of this “dangerousness at apprehension” theory is not an open question; the Supreme Court just rejected it. Chambers v. United States, — U.S. —,
There is nothing about an Oregon burglar that makes him more likely to turn violent if cornered than any other serious felon. If Oregon burglary qualifies under ACCA’s residual clause, so does any other
We have sown the wind and will reap the whirlwind. Mr. Mayer’s the first casualty; he won’t be the last.
OPINION
The district court properly denied Casey Dale Mayer’s motion to suppress, because (1) officers had probable cause to believe that Mayer lived at the residence they searched and (2) the conditions of his probation authorized the search. We also hold that the district court properly found that Mayer’s prior conviction for first-degree burglary in Oregon was a predicate “violent felony” under the residual clause of the Armed Career Criminal Act (“ACCA”). In the ordinary case, conduct falling within Oregon’s first degree burglary statute presents a serious possibility of risk of physical injury to others. Lastly, the district court properly concluded that Mayer’s two prior drug convictions were “serious drug offenses” under the ACCA because Mayer’s offenses involved manufacturing and delivering marijuana and Oregon law prescribes a maximum term of imprisonment of ten years or more for such offenses. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
BACKGROUND
1. Factual Background
In February 2004, Mayer was on both post-prison supervision and probation as a result of two convictions for drug-related offenses.
On February 24, 2004, one of Mayer’s former neighbors from Hansen Lane called Rauch. He informed her that Mayer was again living at 103 Hansen Lane and was likely selling drugs out of the house. Rauch drove by 103 Hansen Lane on several occasions; however, she was not able to personally verify the caller’s information.
On December 28, 2004, Parole and Probation supervisor Susan McFarland received an anonymous phone call from a man who refused to identify himself. The man stated (a) that “absconded parolee Casey Mayer” was at 103 Hansen Lane, (b) that he was certain that Mayer had a firearm, and (c) that Mayer was probably growing marijuana. The man expressed fear that Mayer would kill him if Mayer found out that he had called the probation department. He also indicated that Mayer
McFarland’s practice was to use the probation department’s database to verify the information from an anonymous caller. McFarland used the database to check Mayer’s listed address, prior contacts and convictions, outstanding warrants, and to assess his dangerousness. McFarland also called Rauch, who advised her that there was a high likelihood that Mayer would have weapons in the house and that he would resist arrest. McFarland and four other Parole and Probation officers then went to 103 Hansen Lane to execute the two outstanding arrest warrants. When they arrived, McFarland positioned two officers at the front door and sent two other officers to the rear of the house (where the officers entered Mayer’s backyard through an open gate) to block the suspected escape route and to cover for the other officers. McFarland then noticed a man and a woman standing directly across the street. When McFarland approached the couple, the man told McFarland that Mayer lived at 103 Hansen Lane, that Mayer lived by himself, and that he had noticed a lot of people going in and out of the house.
McFarland returned to join the officers at the front of the house, who were pounding on the front door and identifying themselves loudly and repeatedly. Although the officers heard someone moving around in the house and the sounds of a television coming from inside the house, no one answered the door.
McFarland then went to the back of the house to check on the other two officers. While in the backyard, she observed an 18-inch gap in the backyard fence, which she believed to be the escape route described by the anonymous caller. McFarland also observed a bright light emanating from a plastic vent in the house’s foundation, and she heard a loud electrical buzzing noise coming from behind the vent. McFarland peeked through a slit in the vent, saw a marijuana plant, and smelled marijuana.
While McFarland was at the back of the house, one of the officers (positioned at the front of the house) heard sounds coming from the attic and called the sheriffs department to request back-up assistance. When the sheriffs deputies arrived, McFarland told Deputy Sheriff Eric Franklin about her observations at the rear of the house. Franklin positioned himself at the back of the house, outside of the fence. Franklin had a photograph of Mayer that he handed through the slats in the fence to Deputy Sheriff David Thomas, who was stationed in the backyard. Thomas told Franklin that he had seen Mayer inside of the house. Franklin then crossed the fence and went into the backyard, where he observed a marijuana plant, smelled the odor of growing marijuana, and saw a PVC pipe consistent with a hydroponic marijuana growing operation.
Approximately 1.5 hours after the probation officers arrived, Mayer and his brother came out of the house. Mayer admitted that there was marijuana growing inside the house, but denied the presence of firearms. He also refused to consent to a search of the residence.
Deputy Marvin Combs then applied for, and obtained, a search warrant based on information that Franklin provided over the telephone. The subsequent search revealed marijuana, items associated with growing marijuana, a .45 caliber pistol in the attic, and a box of .45 caliber ammunition in the bedroom.
II. Procedural History
On July 21, 2005, Mayer was indicted for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.
The government argued that the district court should enhance Mayer’s sentence under the ACCA, because Mayer had one prior conviction for a violent felony and two prior convictions for serious drug offenses. The ACCA imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for “ ‘a violent felony or a serious drug offense.’ ” United States v. Jennings,
STANDARDS OF REVIEW
We review de novo a district court’s denial of a motion to suppress. United States v. Lopez,
DISCUSSION
I. Motion to Suppress
Mayer first argues that the officers illegally entered his backyard and that, consequently, their observations of criminal activity were tainted. Mayer therefore contends that the officers’ observations while in his backyard were improperly included in the affidavit supporting the search warrant. We disagree.
In determining whether a search is reasonable, we examine the “totality of the circumstances” in a “common-sense” manner. United States v. Diaz,
Even though officers only entered Mayer’s backyard during the probation search, the conditions of Mayer’s probation authorized a warrantless search of his entire residence. One condition of Mayer’s probation was that he “[p]ermit the probation officer to visit [him] or [his] work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under[his] control.” Another condition was that he had to “[c]onsent to the search of person, vehicle or premises upon ... request ... if the supervising officer has reasonable grounds
There is no doubt that the Parole and Probation officers had a “reasonable suspicion” of criminal activity. Parole and Probation officers received two phone calls— one from a neighbor and one from an anonymous source — in which the callers reported that Mayer was selling marijuana, and that he was in possession of a firearm.
Before law enforcement officers may conduct a warrantless probation search, however, they must also have probable cause to believe that the probationer actually lives at the residence searched. See United States v. Howard,
The district court correctly determined that the officers had probable cause to believe that Mayer resided at 103 Hansen Lane on the day of the search. First, Mayer had previously resided at the Hansen Lane address, providing some basis for the officers to believe that he might be residing there again. When Mayer reported his change of address to the Davis Street address, he indicated that the move was “temporary.” The fact that Mayer had absconded from probation presumably meant that Rauch had been unable to locate Mayer at the Davis Street address.
Second, in February 2004, one of Mayer’s Hansen Lane neighbors called Rauch to report that Mayer was residing at 103 Hansen Lane and likely selling drugs from the residence. Although this information was provided by an informant, Rauch testified that she knew the neighbor’s name and address, had known him for a long time, and trusted him. The information provided by the neighbor was consistent with Mayer’s previous convictions for marijuana offenses, and it tended to show that Mayer was living at the Hansen Lane address. See Gates,
Third, on the day of the search, McFarland received an anonymous phone call informing her that Mayer could be found at 103 Hansen Lane. The caller knew that Mayer had absconded from probation, believed Mayer had a gun and a marijuana growing operation, and knew about a possible escape route through the backyard. These facts were arguably specific details not readily known by the public, and they were corroborated by Mayer’s previous residence at 103 Hansen Lane, his history of marijuana and firearms offenses, the fact that he had actually absconded from parole, and McFarland’s subsequent observation of a possible escape route. See id. at 234, 243-45,
Finally, before McFarland entered the backyard of 103 Hansen Lane, a man who lived directly across the street told her that Mayer lived there alone. This provided further corroboration that Mayer was actually living at the Hansen Lane address.
We next turn to Mayer’s argument that the district court erred by failing to suppress the firearm found in his residence. As discussed above, the officers could have conducted a constitutionally permissible warrantless search of Mayer’s entire residence. The officers, however, went an extra step and obtained a search warrant before entering Mayer’s residence. “A search warrant, to be valid, must be supported by an affidavit establishing probable cause.” United States v. Jawara,
Even if the conditions of Mayer’s probation had not authorized the search of his residence, the totality of the circumstances indicate that the search warrant was supported by probable cause. See Gates,
II. Predicate Offenses Under the ACCA
“The Armed Career Criminal Act imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for committing certain drug crimes or ‘violent felon[ies].’ ” Begay v. United States, — U.S. —,
A. Mayer’s Burglary Conviction
Mayer argues that the district court erred by holding that his 1994 Oregon conviction for first-degree burglary qualified as a predicate “violent felony.” The ACCA defines a “violent felony” as any crime punishable by imprisonment of more than a year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
To determine whether Mayer’s state conviction for burglary constitutes generic “burglary” under the ACCA, we first apply the categorical approach set forth in Taylor v. United States,
Under Oregon law, a person commits first-degree burglary if he
violates [the second degree burglary statute] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person: (a) Is armed with a burglary tool or theft device ... or a deadly weapon; (b) Causes or attempts to cause physical injury to any person; or (c) Uses or threatens to use a dangerous weapon.
Or.Rev.Stat. § 164.225(1). A person commits second-degree burglary if he “enters or remains unlawfully in a building with intent to commit a crime therein.” Or. Rev.Stat. § 164.215(1). A “building” is, “in addition to its ordinary meaning ... any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.” Or.Rev.Stat. § 164.205(1). A “dwelling” in Oregon is defined as a “building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” Or.Rev.Stat. § 164.205(2).
Oregon Revised Statutes section 164.225 is therefore broader than the definition of generic burglary because the statute does not limit burglary to “building[s] or structure[s],” but also includes non-structures (such as booths, vehicles, boats, and aircraft) that are regularly or intermittently used as lodgings. Cf. Taylor,
In Grisel, we held that Oregon’s second-degree burglary statute defined burglary more broadly than the generic definition because it included entries into booths, vehicles, boats, or aircraft. See id. at 850-52. In so holding, we explained that, in Taylor, the Supreme Court made clear that the generic term “building or structure” was limited to structures designed for occupancy and intended for use in one place. See Grisel,
As discussed, the ACCA enumerates four violent felonies as predicate
We apply the categorical approach to determine whether an offense poses a serious potential risk of physical injury. See James v. United States,
The main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party — whether an occupant, a police officer, or a bystander— who comes to investigate. That is, the risk arises ... from the possibility that an innocent person might appear while the crime is in progress.
Id. at 1594-95.
The Supreme Court has rejected arguments that canons of statutory construction require an interpretation of the residual clause that only allows burglary to qualify as a violent felony under the residual clause if it constitutes generic burglary under the Taylor definition. In James, the Supreme Court explained that the residual clause may “cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary.” James,
We previously declined to adopt an interpretation of the residual clause under the categorical approach or the modified categorical approach to cover offenses that were similar to an enumerated offense, because such an interpretation would render the ACCA’s inclusion of the enumerated offenses in the same section to be “sur-plusage.” United States v. Fish,
Fish’s conviction for possessing a pipe bomb could not fall under the ACCA’s residual clause, because the ACCA explicitly prohibits “use,” but says nothing about “possession” of explosives, and we could not square this omission with the residual clause without making the “use” language superfluous. Fish,
The analysis turns on both the plain language of state statutes and how state courts actually apply them. See James,
The Supreme Court, however, has made it clear that the risk of face-to-face confrontation stems not only from encountering the occupant of a building, but also from — for example — a police officer or bystander who comes to investigate. See James,
Under Oregon Revised Statutes section 164.235(2), a “burglary tool or theft device” is by definition a very dangerous object.
For these reasons, the district court did not err by determining that first-degree burglary under Oregon Revised Statutes section 164.225 is categorically a “violent felony” under the ACCA’s residual clause.
We therefore hold that first-degree burglary under Oregon Revised Statutes section 164.225 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. The risk of potential injury due to a face-to-face confrontation between the burglar and a third party is not lessened simply because, under Oregon law, the dwelling does not have to be a generic “building” or “structure,” or because the offense does not necessarily involve fleeing the scene of a burglary. “[I]n the ordinary case,” a violation of Oregon Revised Statutes section 164.225 will involve conduct that presents a serious potential risk of physical injury to another, in a manner similar to generic burglary. James,
B. Mayer’s Prior Drug Convictions
The ACCA defines a “serious drug offense” as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Mayer contends that his two prior Oregon convictions for unlawful manufacture and delivery of marijuana were not “serious drug offenses” under the ACCA, because Oregon law does not “prescribe” a maximum term of imprisonment of ten years or more for those offenses. Mayer reasons that, although the statutory maximum sentence for these offenses is more than ten years,
Mayer’s argument is foreclosed by United States v. Parry,
It is true that 18 U.S.C. § 922(g) requires that the predicate offense be “punishable by imprisonment for a term exceeding one year,” while ACCA requires, for a “serious drug offense,” a “maximum term of imprisonment of ten years or more” as “prescribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii). Although the phrasing differs slightly, we conclude that neither formulation suggests that we look to sentencing guidelines to the exclusion of the statutes. If anything, “punishable” would appear to point more specifically to time spent in prison, while “prescribed by law” would appear to point more to the statute. If the former phrase requires that we use the statutory maximum, a fortiori, the latter phrase does too.
Parry,
Although Mayer contends that Parry was wrongly decided, it is clear that Parry is controlling precedent in our circuit. See, e.g., United States v. Crampton,
Because Oregon law prescribes a maximum sentence of ten years or more for Mayer’s prior convictions for unlawful manufacture and delivery of marijuana, the district court did not err by finding that those convictions were “serious drug offenses” under the ACCA. See 18 U.S.C. § 924(e) (2) (A) (ii). Accordingly, the district court correctly imposed the ACCA’s mandatory fifteen year sentence, because Mayer was a felon having three or more previous convictions for “a violent felony or a serious drug offense.” See Jennings,
CONCLUSION
We affirm the district court’s denial of Mayer’s motion to suppress. We also affirm the district court’s imposition of the ACCA’s mandatory fifteen year minimum sentence.
AFFIRMED.
Notes
. Mayer was serving post-prison supervision for a conviction, entered on October 8, 2001, in the Circuit Court of the State of Oregon for Lane County of: (i) unlawful manufacture of a controlled substance, (ii) delivery of marijuana for consideration, (iii) unlawful possession of a controlled substance, and (iv) felon in possession of a firearm. Mayer was sentenced to probation for a conviction, entered on February 2, 2004, in the same court for: (i) unlawful manufacture of a controlled substance, and (ii) unlawful delivery of a controlled substance.
. Rauch could not recall the dates on which she attempted to locate Mayer.
. Mayer asserts that the district court should not have relied on this information because, by the time that McFarland spoke with the neighbor, other officers had already entered the backyard and made tainted observations of the marijuana growing operation. That
. This circuit also refers to the "residual” clause as the "catchall” clause or the "otherwise” clause. Jennings,
. It is not clear how narrowly Congress intended the residual clause to be interpreted. See James,
. There is, however, no case law narrowing the statute to require entry into a place likely to be occupied by a person. Cf. James,
. Oregon Revised Statutes section 164.235(2) defines a "burglary tool or theft device” as "an acetylene torch, electric arc, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete or other solid material, or nitroglycerine, dynamite, gunpowder or any other explosive, tool, instrument or other article adapted or designed for committing or facilitating a forcible entry into premises or theft by a physical taking”.
. The district court did not rule on whether Mayer’s first-degree burglary conviction was generic burglary under the modified categorical approach. We generally adopt a modified categorical approach once a determination has been made that an offense does not categorically qualify as a crime of violence. See Shepard v. United States,
. Under Oregon Revised Statutes sections 161.605(1), 475.840(l)(a), and 475.856(2), the statutory maximum sentence for manufacture or delivery of marijuana is 20 years. Although Mayer's indictments for these offenses refer to violations of Oregon Revised Statutes section 475.992, that provision was subsequently renumbered.
. The defendant in Parry argued, similar to Mayer in this case, that “under the Oregon Sentencing Guidelines, no defendant could ever be sentenced to 10 years in prison for delivery or manufacture of a Schedule II controlled substance ... regardless of his criminal history. Instead, the maximum sentence for that crime under the guidelines is 90 months.”
Lead Opinion
Order; Dissent to Order by Chief Judge KOZINKI; Opinion by
ORDER
The opinion in the above-captioned matter filed on June 30, 2008, and published at
Having made the foregoing amendments to the opinion, all judges on the panel have voted to deny Defendant/Appellee’s Petition for Panel Rehearing, and so that petition is DENIED.
The full court has been advised of Defendant/Appellee’s Petition for Rehearing En Banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a majority of the active judges did not vote in favor of en banc consideration. Fed. RApp. P. 35. Accordingly, the Petition for Rehearing En Banc is also DENIED.