United States v. Cisneros

• Decision Date: 22 June 2016
• Docket Number: No. 13-30066,13-30066
• Citation: 826 F.3d 1190
• Parties: United States of America, Plaintiff–Appellee, v. Jorge Armando Cisneros, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

826 F.3d 1190

United States of America, Plaintiff–Appellee

v.Jorge Armando Cisneros, Defendant–Appellant.

No. 13-30066

United States Court of Appeals, Ninth Circuit.

Filed June 22, 2016

Brian C. Butler, Assistant Federal Public Defender, Federal Public Defender's Office, Medford, Oregon, for Defendant–Appellant.

Douglas W. Fong, Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; Office of the United States Attorney, Medford, Oregon; 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 to sentence him to a mandatory-minimum sentence of fifteen years in prison under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1). Cisneros does not have “three previous convictions” that qualify as “a violent felony or a serious drug offense” under ACCA. Id. Accordingly, we vacate Cisneros's sentence and remand to the district court for resentencing.

I.

Under ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) faces a fifteen-year mandatory-minimum sentence if he “has three previous convictions ... for a violent felony or a serious drug offense, or both.” Id. § 922(e)(1). ACCA defines “serious drug offense” as follows:

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq. ), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law[.]

Id. § 924(e)(2)(A). ACCA also defines “violent felony”:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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, [or] involves use of explosives[.]

Id. § 924(e)(2)(B).

At the time the district court sentenced Cisneros, a prior conviction also qualified as a violent felony if it “otherwise involve[d] conduct that presented a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). We previously relied on this “residual clause” to affirm Cisneros's sentence. See United States v. Cisneros , 763 F.3d 1236 (9th Cir. 2014). However, the Supreme Court subsequently invalidated ACCA's residual clause, reasoning that it violated “the Constitution's prohibition of vague criminal laws.” Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2555–57, 192 L.Ed.2d 569 (2015). Therefore, we must determine whether, in the absence of ACCA's residual clause, at least three of Cisneros's previous convictions nonetheless qualify as predicate offenses.

II.

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: one conviction for conspiracy to deliver a controlled substance, see Or. Rev. Stat. §§ 161.450, 475.752, three convictions for fleeing or attempting to elude a police officer, see id. § 811.540(1), and two convictions for first-degree burglary, see id. § 164.225. The district court held that all six of Cisneros's prior convictions qualified as ACCA predicate offenses and sentenced Cisneros to the mandatory-minimum sentence of fifteen years in prison.

III.

We review de novo whether Cisneros's prior convictions qualify as predicate offenses under ACCA. United States v. Bonat , 106 F.3d 1472, 1474 (9th Cir. 1997). We must determine whether at least three of Cisneros's previous convictions are either serious drug offenses or violent felonies under ACCA.

IV.

We would first address Cisneros's conviction for conspiracy to deliver a controlled substance under Oregon Revised Statutes sections 161.450 and 475.752. However, Cisneros concedes that this prior conviction is a serious drug offense under United States v. Parry , 479 F.3d 722, 724–25 (9th Cir. 2007).¹

We next review Cisneros's three convictions for fleeing or attempting to elude a police officer under Oregon Revised Statutes section 811.540(1). The government concedes that these prior convictions are not serious drug offenses or violent felonies. We agree. These prior convictions are not serious drug offenses under § 922(e)(2)(A). Further, they are not violent felonies—they did not have “as an element the use, attempted use, or threatened use of physical force,” see § 924(e)(2)(B)(i), and are not one of the enumerated offenses listed in § 924(e)(2)(B)(ii).

V.

Accordingly, in order for ACCA's mandatory-minimum sentence to apply to Cisneros, both of his previous convictions for first-degree burglary under Oregon Revised Statutes section 164.225² must qualify as either serious drug offenses or violent felonies. It is evident that such convictions do not qualify as serious drug offenses under § 922(e)(2)(A). Further, they do not have “as an element the use, attempted use, or threatened use of physical force.” See § 924(e)(2)(B)(i).

Therefore, we must determine whether Cisneros's convictions for first-degree burglary qualify as violent felonies under § 924(e)(2)(B)(ii) —i.e. whether a conviction for first-degree burglary under Oregon law is a categorical match to generic burglary under federal law. In order to do so, we apply the three-step process set forth in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) :

At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. If this “categorical approach” reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony. When a statute is “overbroad,” meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is “divisible” or “indivisible.” If the statute is indivisible, “our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Only when a statute is overbroad and divisible do we turn to step three—the “modified categorical approach.” At this step, we may examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating.

Lopez–Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015) (internal citations omitted) (citing Descamps , 133 S.Ct. at 2293 ).

A. Step One: Oregon's Burglary Statute is Overbroad.

The first step is to “compare the elements of the crime of conviction ... with the elements of the generic crime.” Descamps , 133 S.Ct. at 2281. We have previously determined that Oregon's first-degree burglary statute is not a “categorical match” to generic burglary. In United States v. Grisel, we recognized that “Oregon defines second-degree burglary more broadly than the ACCA,” because “[t]he text of the statute expressly includes in its definition that which the Supreme Court expressly excluded from the generic, federal definition.” 488 F.3d 844, 850 (9th Cir. 2007) (en banc). In United States v. Mayer, we confirmed that Oregon defines first-degree burglary more broadly as well.

560 F.3d 948, 959 (9th Cir. 2009) (“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.” (alterations in original)).

Confirming our prior analysis, Cisneros was convicted of first-degree burglary under Oregon Revised Statutes section 164.225. Under such law, a person commits first-degree burglary if he “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,” Or. Rev. Stat. § 164.225. Oregon defines “building” to include “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). Oregon defines “dwelling” as “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” Id. § 164.205(2).

Similar to Oregon's burglary statute, generic burglary has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, the “building or structure” element of generic burglary does not include booths, vehicles, boats, or aircrafts. See id. (“A few States' burglary statutes ... define burglary more broadly ... by including places, such as automobiles and vending machines, other than buildings.”).

Accordingly, Oregon's burglary statute is not a categorical match to generic burglary, because the Oregon statute defines building more broadly than does generic burglary and therefore criminalizes more conduct than generic burglary.

B. Step Two:...