ORDER
Defendant Ryan Michael Snyder is set to be sentenced for the second time on his conviction for being a felon in possession of a firearm. The Ninth Circuit reversed this court’s sentence and remanded for resentencing. United States v. Snyder,
But after the Ninth Circuit issued Snyder, the Supreme Court decided Descamps v. United States, — U.S. -,
PROCEDURAL BACKGROUND
Defendant pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). By itself, the crime carries a maximum sentence of ten years in prison, but a defendant with three prior convictions for violent felonies or serious drug offenses faces a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e).
. At sentencing, the government argued defendant had three prior convictions for violent felonies: (1) second-degree assault and second-degree robbery
I concluded second-degree burglary was a violent felony,
On appeal, the government contended attempting to elude police was a violent felony. Defendant, contended second-degree burglary was not a violent felony.
On June 9,2011, while the parties’ cross-appeals were pending, the Supreme Court ruled that an Indiana conviction for fleeing police was a violent felony under the ACCA. Sykes v. United States, — U.S. -,
On June 30, 2011, the Ninth Circuit affirmed that second-degree burglary was a violent felony, but reversed this court’s ruling that attempting to elude was not a violent felony. The Ninth Circuit held Sykes controlled because the Indiana statute at issue there was “similar enough” to the Oregon statute.
In June 2013, the Supreme Court issued Descamps.
When a Ninth Circuit decision becomes “‘clearly irreconcilable’ with the reasoning or theory of intervening higher authority,” this court must follow the higher authority. Rodriguez v. AT & T Mobility Servs. LLC,
DISCUSSION
I. The ACCA’s Definition of Violent Felony
The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
The ACCA has three tests to determine whether a prior conviction is a violent felony. First, the sentencing court asks whether the prior crime requires proof that the defendant used, attempted to use, or threatened to use physical force against another person. 18 U.S.C. § 924(e)(2)(B)(i). The “force clause” does not apply here because neither burglary nor attempting to elude, police includes an element of force.
Second, if the crime does not include an element of force, the sentencing court asks whether the elements of the prior crime match the elements of one of the ACCA’s list of “generic” crimes: burglary, arson, extortion, or crimes involving explosives. “To determine whether a past conviction is for one of those crimes, courts use what has become known as the ‘categorical approach’: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime — ie., the offense as commonly understood.” Descamps,
Third, if the prior crime is not a generic crime, the sentencing court asks whether the prior crime “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This is the ACCA’s “residual clause.”
II. Second-Degree Burglary Under Oregon Law
A. Oregon Burglary Is Not Generic Burglary
Defendant pleaded guilty to second-degree burglary. Under Oregon law, “a person commits the crime of burglary in the second-degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.” Or.Rev. Stat. § 164.215(1). For ACCA purposes, the Supreme Court defines generic burglary as an “ ‘unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.’ ” Descamps,
Making the categorical comparison, the elements of the Oregon burglary statute appear to match the elements of generic burglary, but Oregon defines “building” more broadly to include non-structures: “building, in addition to its ordinary meaning includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodations of persons or for carrying on business therein.” Or.Rev.Stat. § 164.205(1). Because of Oregon’s broad definition of “building,”
B. The Oregon Burglary Statute Is Not Divisible
The categorical approach generally prohibits the sentencing court from considering “the specific conduct that resulted in the conviction or the circumstances under which the crime was committed.” Aguilar-Turcios v. Holder,
Federal law governs whether a crime is a “violent felony,” but when “determining the meaning or scope of the crime of conviction,” this court is “bound by the state courts’ interpretations of state criminal statutes.” United States v. Flores-Cordero,
The text of the Oregon burglary statute indicates that “building” is a single element. I did not find Oregon decisions directly on point. Cf. State v. Nollen,
Here, applying the modified categorical approach, the Ninth Circuit found the indictment “did not simply allege [defendant] entered or remained in any unnamed building. It designated a specific building occupied by a business: ‘a building located at 1341 Rogue River Highway, (Friendly Motors).’ ”
Judge Tashima’s reluctant concurrence illustrates why the modified categorical approach does not work with indivisible statutes. The problem is that “just because the broad statutory term ‘building’ is accompanied by a street address does not necessarily make the statutory term more narrow or precise. “Building” still means “building,” as defined in the statute.” Snyder,
could just as well have alleged that the defendant entered a trailer located at 1341 Rogue River Highway. Any term can be accompanied by a street address. For all we know from the indictment, 1341 Rogue River Highway could be the address of a five or ten acre lot full of trucks, trailers, RVs, booths, and sheds, as well as the site of a generic building. Thus, for purposes of the modified categorical approach, accompanying the statutory term “building” with a street address does nothing, categorically, to aid the analysis.
Id.
Because the elements of Oregon burglary do not match the elements of generic burglary, a conviction under the Oregon statute cannot be generic burglary, regardless of the underlying facts of the crime. See Descamps,
C. Second-Degree Burglary Is Not a Violent Felony Under the Residual Clause
The government ‘argues that even if defendant’s burglary conviction is not for the generic crime, the conviction still qualifies as a violent felony under the ACCA’s residual clause.’
The categorical approach also applies to the residual clause. The sentencing court may consider only “ “whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.’ ” Sykes,
1. Serious Potential Risk of Physical Injury
Although the Ninth Circuit has held that Oregon first-degree burglary is a violent felony under the residual clause, the court has not analyzed second-degree burglary under the residual clause. See United States v. Mayer,
Mayer does not control here because second-degree burglary, as defined by Oregon law, is inherently less dangerous than first-degree burglary. A conviction for first-degree burglary ‘under Oregon law requires proof of conduct that is violent or could lead to violence, such as breaking into a dwelling; causing or attempting to cause physical injury to another; or using
Physical confrontation is possible during the commission of second-degree burglary, but that is true of almost any crime. See United States v. Farrell,
2. Similarity in Type and Degree of Risk
Second-degree burglary under the Oregon statute does not pose a risk similar to generic burglary. The Oregon offense is not a violent felony under the residual clause of the ACCA.
III. Conviction for Attempting to Elude
Relying on Sykes, the Ninth Circuit found defendant’s conviction for attempting to elude police was a violent felony. Snyder,
CONCLUSION
Because defendant has two violent felony convictions, he is not subject to the ACCA mandatory minimum sentence. Defendant is sentenced to 110 months’ imprisonment with credit for time served. An amended judgment will follow.
IT IS SO ORDERED.
Notes
. Because these convictions arose from one incident, they count as a single violent felony. See 18 U.S.C. § 924(e)(1).
. Based on Descamps, I now conclude that Oregon second-degree burglary is not a violent felony for ACCA purposes.
. The model instruction requires proof that the defendant "entered or remained unlawfully in the premises described in the charge” and the "premises described in the charge is a building.” Or. Unif. Cr. Jury Instruction No ... 1903. "Premises” is defined as "any building and any real property, whether privately or publicly owned.” Id., No. 1900(9).
. Chief Judge Kozinski disagreed with the opinion in Mayer, stating "Oregon prosecutes as burglars’ people who pose no risk of injury to anyone.” Mayer,