U.S. v. Terrell

• Decision Date: 02 February 2010
• Docket Number: No. 08-10560.,08-10560.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rayford L. TERRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

593 F.3d 1084

UNITED STATES of America, Plaintiff-Appellee, v. Rayford L. TERRELL, Defendant-Appellant.

No. 08-10560.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2009.

Filed February 2, 2010.

Daniel R. Drake, Drake Law, PLC, Phoenix, AZ, for the defendant-appellant.

Karla Hotis Delord, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Frederick J. Martone, District Judge, Presiding. D.C. No. 2:05-CR-00923-FJM-1.

Before A. WALLACE TASHIMA, SUSAN P. GRABER and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

Defendant-Appellant Rayford L. Terrell was convicted of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court enhanced Terrell's sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 921-31, which raises the mandatory minimum sentence for convicted felons in possession of a firearm who have "three previous convictions ... for a violent felony." 18 U.S.C. § 924(e)(1). Terrell argues that the prior convictions relied upon for the enhancement—sexual assault under Arizona law, second-degree burglary under Arizona law, and second-degree burglary under Missouri law—do not qualify as "violent felon[ies]" under the ACCA. We hold that all of these prior offenses fit categorically within the ACCA's residual clause in that they "involve[ ] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii). Thus, we affirm the district court's decision to enhance Terrell's sentence.

I

On May 31, 2005, as part of a large-scale operation to identify drug and firearm dealers, Phoenix Police Detective Matthew Shay met with Terrell, claiming that he wanted to purchase firearms. After several subsequent discussions and meetings with Terrell and with Terrell's co-defendant, Cindy O'Quinn, Shay purchased a .380 caliber pistol from Terrell.

On September 20, 2006, Terrell was charged in the District of Arizona with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment also alleged that, at the time of the offense, Terrell had previously been convicted of at least three felony offenses: (1) Burglary in the Second Degree on or about November 23, 1988, in Maricopa County, Arizona; (2) Sexual Assault on or about September 8, 1992, in Maricopa County, Arizona; and (3) Burglary in the Second Degree on or about March 3, 1993, in St. Louis County, Missouri. Following a two-day trial, the jury found Terrell guilty as charged.

The Presentence Investigation Report ("PSR") found that Terrell had "committed the instant offense subsequent to sustaining three felony convictions for crimes of violence, as defined in U.S.S.G. § 4B1.2(a)." According to the PSR, these prior convictions made Terrell "an Armed Career Criminal within the meaning of U.S.S.G. § 4B1.4 and[therefore] subject to an enhanced sentence under 18 U.S.C. § 924(e)," the ACCA.¹ These determinations resulted in an offense level of thirty-three. The PSR then found that Terrell's offense level of thirty-three and criminal history category of VI resulted in a Sentencing Guidelines range of 235 to 293 months.

Terrell objected to the PSR, arguing that the alleged prior felony convictions were not "violent felon[ies]" and therefore that Terrell was not subject to an enhanced sentence under the ACCA. The district court overruled Terrell's objections to the PSR and held that Terrell's prior convictions qualified him as an armed career criminal under the ACCA. The court stated:

I think ... the whole approach to the categorization of prior offenses as crimes of violence ... is really needlessly complex.... And the case law that has developed ... contributes, I think, to the wholesale confusion in this area.... We, I think, intuitively know what Congress is trying to do, and yet given all the gloss and all the complexity, its intent is sometimes frustrated.... [I]t strikes me that at the end of the day, whether [Terrell's prior offenses] fit nicely within the categorical approach or the modified categorical approach, that, at a minimum, they fit within the residual clause of [the ACCA] as violent felonies.

However, the court granted the government's motion for a downward departure of two levels for substantial assistance and sentenced Terrell at the low end of the post-departure Guidelines range: 188 months' imprisonment, followed by a five-year term of supervised release. Terrell timely appealed.

II

Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as "violent felon[ies]."² "We review de novo whether a prior conviction is a predicate felony under the ACCA." United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc). We first review the complex statutory and legal framework governing this case.

Terrell was convicted under 18 U.S.C. § 922(g), which prohibits previously convicted felons from possessing firearms. In the ordinary case, the maximum penalty for violating § 922(g) is a fine and imprisonment for up to ten years. See 18 U.S.C. § 924(a)(2). However, a defendant convicted of violating § 922(g) who "has three previous convictions ... for a violent felony" is subject to a fifteen-year mandatory minimum sentence. Id. § 924(e)(1). 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

Id. § 924(e)(2)(B).

The government has conceded that none of Terrell's prior convictions fits within the first provision of the "violent felony" definition—those felonies that "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Thus, for each of Terrell's prior convictions, we must apply the categorical and, if appropriate, modified categorical approach to determine whether the state offense fits within one of two portions of § 924(e)(2)(B)(ii) ("subsection (ii)"). See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). First, we must determine whether the prior felony fits within the enumerated offenses in subsection (ii): burglary, arson, extortion, or crimes that involve the use of explosives. See 18 U.S.C. § 924(e)(2)(B)(ii). If not, we must determine, second, whether the prior felony fits within subsection (ii)'s residual clause, in that it "involves conduct that presents a serious potential risk of physical injury to another." Id.

Our analysis of whether Terrell's prior convictions fit within the residual clause contains a unique element because of the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In Begay, the Supreme Court determined that subsection (ii)'s enumerated offenses—burglary, arson, extortion, and crimes involving the use of explosives—"indicate[ ] that the statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another." Id. at 1585 (internal quotation marks omitted). In order to give effect to all of the words in subsection (ii), the Court held that the enumerated offenses "limit[ ] the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Id. The Court noted further that the enumerated crimes "all typically involve purposeful, violent, and aggressive conduct." Id. at 1586 (internal quotation marks omitted). Thus, even if Terrell's offenses "involve[ ] conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), we must determine whether these crimes are "roughly similar" to the enumerated offenses—that is, whether they "typically involve purposeful, violent, and aggressive conduct," Begay, 128 S.Ct. at 1585-86 (internal quotation marks omitted).

III

We now address, in turn, whether Terrell's sexual assault and burglary convictions fit within the ACCA's "violent felony" definition.

A

Arizona law provides that "[a] person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." ARIZ. REV. STAT. § 13-1406(A) (emphasis added). The statute defines "without consent" to include circumstances in which "[t]he victim is coerced by the immediate use or threatened use of force against a person or property." Id. § 13-1401(5)(a). However, it also includes circumstances in which no force or threat of force is used, including where "[t]he victim is incapable of consent" because of mental disorder, drugs, or other similar impairments known to the defendant, id. § 13-1401(5)(b); where "[t]he victim is intentionally deceived as to the nature of the act," id. § 13-1401(5)(c); or where "[t]he victim is intentionally deceived to erroneously believe that the person is the victim's spouse," id. § 13-1401(5)(d).

Sexual assault is not one of the enumerated offenses in subsection (ii). Thus, we must decide whether Terrell's sexual assault offense fits within the residual clause. This determination requires us to determine: (1) whether the offense "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii); and (2) whether sexual assault under Arizona law is "roughly similar" to the enumerated offenses in that it "typically involve[s] purposeful, violent, and aggressive conduct," Begay, 128 S.Ct. at 1585-86 (...