United States v. Walton

• Decision Date: 01 February 2018
• Docket Number: No. 15-50358,15-50358
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Donnie Lee WALTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

881 F.3d 768

UNITED STATES of America, Plaintiff–Appellee,

v.Donnie Lee WALTON, Defendant–Appellant.

No. 15-50358

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 8, 2018, Pasadena, California

Filed February 1, 2018

Jonathan D. Libby (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant–Appellant.

L. Ashley Aull (argued), Chief; Michael Anthony Brown, Assistant United States Attorney; Sandra R. Brown, Acting United States Attorney; Criminal Appeals Section, United States Attorney's Office, Los Angeles, California; for Plaintiff–Appellee.

Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff,^* Senior District Judge.

RAKOFF, Senior District Judge:

Defendant–Appellant Donnie Lee Walton challenges the district court's imposition of a sentencing enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). ACCA imposes a mandatory minimum sentence of fifteen years of imprisonment on a person who both violates Section 922(g) and has three previous convictions for either a "serious drug offense," or a "violent felony," or some combination of the two. Id.

When Walton pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g), he had previously been convicted of (1) assault with a deadly weapon, in violation of California Penal Code § 245(a)(1) ; (2) second-degree robbery, in violation of California Penal Code § 211 ; (3) first-degree robbery in violation of Alabama Criminal Code § 13A-8-41; and (4) attempted murder, in violation of Alabama Criminal Code §§ 13A-4-2 and 13A-6-2. The sentencing court found that all four of these convictions were for violent felonies under ACCA.

Walton argues on appeal that the district court erred as to each of these previous convictions. We hold that neither first-degree robbery under Alabama law nor second-degree robbery under California law is a violent felony under ACCA. Since at least two of his four prior non-drug convictions did not qualify as violent felonies, Walton should not have been subject to ACCA's mandatory sentencing provision. It is therefore unnecessary to decide whether Walton's attempted murder and assault with a deadly weapon convictions are violent felonies. We reverse and remand.

I.

This court generally reviews de novo whether a state conviction qualifies under ACCA's definition of "violent felony." United States v. Dixon , 805 F.3d 1193, 1195 (9th Cir. 2015). The Government nevertheless argues for plain error review because Walton failed to raise the claims advanced in his opening brief before the district court. This is incorrect. Walton argued below that he did not have the required number of violent felonies necessary for enhancement under ACCA, and while he did not make the precise arguments that he makes on this appeal, "it is claims that are deemed waived or forfeited, not arguments." United States v. Pallares–Galan , 359 F.3d 1088, 1095 (9th Cir. 2004). Moreover, we are not limited to plain error review when, as here, "we are presented with a question that is purely one of law and where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." United States v. Evans–Martinez , 611 F.3d 635, 642 (9th Cir. 2010) (quoting United States v. Saavedra–Velazquez , 578 F.3d 1103, 1106 (9th Cir. 2009) ). The Government expressly argued in its brief before the sentencing court that Walton's prior convictions were all violent felonies under ACCA, and its arguments on this purely legal question have been squarely presented at length before this court. We therefore review de novo whether Walton's prior convictions qualify as violent felonies under ACCA.

II.

ACCA defines a "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 [ (iii) ] otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). These three clauses are known as the "force clause," the "enumerated clause," and the "residual clause," respectively. The Government does not argue that Walton's convictions qualify under the enumerated clause, and the Supreme Court has held that the residual clause is unconstitutionally vague. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015) (" Johnson II "). Thus only the force clause is at issue.

Counterintuitive though it may seem, to determine whether a defendant's conviction under a state criminal statute qualifies as a violent felony under the force clause, we do not look to the underlying facts of the defendant's actual conviction. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016). Rather, established Supreme Court precedent requires that we employ a so-called "categorical" approach, looking "only to the fact of conviction and the statutory definition of the prior offense" to determine whether the state statute under which the defendant was convicted criminalizes only conduct that is a violent felony under ACCA. Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; see also United States v. Grisel , 488 F.3d 844, 847 (9th Cir. 2007) (en banc). Under this approach, "even the least egregious conduct the statute covers must qualify" as a violent felony for a defendant's conviction under that statute to count toward ACCA's mandatory sentence. United States v. Lopez–Solis , 447 F.3d 1201, 1206 (9th Cir. 2006).¹ "State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because ‘we must presume that the conviction rested upon nothing more than the least of the acts criminalized’ " by that statute. United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017) (alterations omitted) (quoting Moncrieffe v.Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). If a state's highest court has not ruled on the level of force required to support a conviction, we are bound by reasoned intermediate court rulings. See Poublon v. C.H. Robinson Co. , 846 F.3d 1251, 1266 (9th Cir. 2017) (citing West v. Am. Tel. & Tel. Co. , 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940) ).

If a statute is "divisible"—that is, if it "lists alternative sets of elements, in essence several different crimes"—we apply the "modified categorical approach," under which we "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction," and then apply the categorical approach to the subdivision under which the defendant was convicted. United States v. Werle , 815 F.3d 614, 619 (9th Cir. 2016) (quoting Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). If the government fails to produce those documents, courts determine whether the "least of [the] acts" described in the statute can serve as a predicate offense. Johnson v. United States ("Johnson I "), 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

A.

We turn first to evaluating whether Walton's conviction for first-degree robbery under Alabama law qualifies as a violent felony under ACCA. A person commits first-degree robbery in Alabama if he commits third-degree robbery and "[i]s armed with a deadly weapon or dangerous instrument" or "[c]auses serious physical injury to another." Ala. Code § 13A-8-41(a). In turn, a person commits third-degree robbery in Alabama if, "in the course of committing a theft," she either

(1) [u]ses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or (2) [t]hreatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.

Ala. Code § 13A-8-43(a). An actual taking of property is not required. Ex parte Verzone , 868 So.2d 399, 402 (Ala. 2003).

The Government does not contend that first-degree robbery's aggravating factors independently render it a violent felony under ACCA, and for good reason. Third-degree robbery becomes first-degree if the perpetrator merely "[i]s armed with a deadly weapon." Ala. Code § 13A-8-41(a). The defendant need not ever use or threaten to use that weapon. See, e.g. , Saffold v. State , 951 So.2d 777, 778–81 (Ala. Crim. App. 2006) (affirming conviction of first-degree robbery where police discovered defendant had a gun hidden in his trench coat but it was never mentioned or seen during the robbery). Merely possessing a gun, even in the course of a robbery, does not involve the use, attempted use, or threatened use of force. See United States v. Molinar , 876 F.3d 953, 957 (9th Cir. 2017); United States v. Parnell , 818 F.3d 974, 980 (9th Cir. 2016) ("The mere fact an individual is armed, however, does not mean he or she has used the weapon, or threatened to use it, in any way."). First-degree robbery, then, is only a violent felony under ACCA's force clause if third-degree robbery is. This question in turn depends on whether the force required for third-degree robbery under Alabama law is sufficient to qualify as a violent crime under ACCA.

In Johnson I , the United States Supreme Court clarified that the "physical force" required under ACCA's force clause must be "violent force" or "force capable of causing physical pain or injury to another person." Johnson I , 559 U.S. at 140, 130 S.Ct. 1265. The mere potential for some trivial pain or slight injury will not suffice. Rather, "violent" force must be "substantia...