U.S. v. O'Neal

• Decision Date: 09 August 1990
• Docket Number: No. 89-10051,89-10051
• Citation: 910 F.2d 663
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donnie Roy O'NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 663

910 F.2d 663

UNITED STATES of America, Plaintiff-Appellee, v. Donnie Roy O'NEAL, Defendant-Appellant.

No. 89-10051.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1990.

Decided Aug. 9, 1990.

Stephen Mensel, Asst. Federal Public Defender, Fresno, Cal., for defendant-appellant.

Lawrence Lincoln, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE, ALARCON and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

FACTS AND PROCEEDINGS

On November 30, 1987, police chased Donnie Roy O'Neal through the streets of Clovis, California. O'Neal abandoned his car in a pasture and fled on foot. When an officer ordered him to stop, O'Neal reached for his waistband and then extended his arm in the direction of the officer. O'Neal was later arrested. A gun holster was recovered from the site where O'Neal extended his arm. Government agents also recovered a gun from close to the site of O'Neal's arrest. The agents traced the gun to a friend of O'Neal, who said she noticed the gun missing shortly after a visit by O'Neal.

In January 1988 O'Neal was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1) (1988). The government gave notice of its intention to seek enhanced penalties pursuant to the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e) (1988). A jury found O'Neal guilty as charged. The district court enhanced the applicable penalty to O'Neal's offense and sentenced him to 360 months imprisonment with five years of supervised release.

O'Neal attacks the use of his prior convictions to enhance his penalty. He also mounts numerous other procedural and constitutional challenges to the legality of his sentence. We affirm.

DISCUSSION

I. ENHANCED PENALTY UNDER SECTION 924(e)

The district court relied on five of O'Neal's prior convictions to determine that O'Neal was subject to a penalty enhancement as a career criminal under 18 U.S.C. Sec. 924(e). Two of these were for second degree burglary and one for second degree attempted burglary, all under Cal. Penal Code Sec. 459. ¹ A fourth conviction was for assault with a deadly weapon, in violation of Cal. Penal Code Sec. 245 (1969). The fifth was for vehicular manslaughter, in violation of Cal. Veh.Code Secs. 23101a, 20001, and 23109b (1976) and Cal. Penal Code Sec. 192.3a (1976). O'Neal contends that none of these convictions can be used to enhance his penalty for being a felon in possession of a firearm. ²

We review de novo a district court's interpretation and application of the Armed Career Criminal Act. United States v. Potter, 895 F.2d 1231, 1235 (9th Cir.1990), cert. denied, --- U.S. ----, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990).

Title 18, United States Code, section 924(e)(1) imposes a mandatory minimum sentence of fifteen years for felons in possession of a firearm if the felon "has three previous convictions ... for a violent felony." Section 924(e)(2)(B) defines a violent felony as an offense carrying a term of imprisonment 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 ... or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. Sec. 924(e)(2)(B)(i)-(ii).

We therefore turn to the question of whether three of O'Neal's prior convictions (1) have as an element of the offense the use or threatened use of force; (2) are for burglary; or (3) otherwise involve conduct that presents a serious potential risk of physical injury to another.

A. Assault with a Deadly Weapon

O'Neal seems to concede that his prior felony conviction for assault with a deadly weapon under Cal. Penal Code Sec. 245 qualifies as a violent felony under section 924(e). See Supplemental Reply Brief at 2. In any event, we conclude that the offense qualifies as a violent felony under section 924(e)(2)(B)(i) because the offense has as an element the attempted use of force. People v. Parrish, 170 Cal.App.3d 336, 342, 217 Cal.Rptr. 700, 704 (1985) ("Assault is an attempted battery.").

B. Vehicular Manslaughter

O'Neal argues that his prior conviction for vehicular manslaughter does not qualify as a violent felony under section 924(e). O'Neal recognizes that we have held that involuntary manslaughter is a violent felony for purposes of 18 U.S.C. Sec. 924(c) (1988), which proscribes the use of a firearm in a crime of violence. ³ United States v. Springfield, 829 F.2d 860, 863 (9th Cir.1987). O'Neal argues, however, that our precedent regarding involuntary manslaughter should not apply to the crime of vehicular manslaughter.

O'Neal offers no principled reason to distinguish vehicular manslaughter from involuntary manslaughter. In Springfield we held that involuntary manslaughter is a crime of violence because it "involves the death of another person [and] is highly likely to be the result of violence." Id. at 863. Vehicular manslaughter, like involuntary manslaughter, involves the death of a human being under violent circumstances. We therefore hold that it qualifies as a violent felony under section 924(e)(2)(B)(ii) in that it "involves conduct that presents a serious potential risk of physical injury to another."

C. The Burglary Convictions

O'Neal argues that none of his burglary convictions are violent felonies for purposes of section 924(e). O'Neal relies on United States v. Chatman, 869 F.2d 525 (9th Cir.1989), for the proposition that a burglary conviction under Cal. Penal Code Sec. 459, as were all his burglary convictions, does not fall under the common law definition of burglary and thus cannot be considered violent under section 924(e). See id. at 527. ⁴ In Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court held that 18 U.S.C. Sec. 924(e) is not limited to the common-law definition of "burglary" as we held in Chatman and concluded that "a person has been convicted of burglary for the purpose of a Sec. 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in a building or structure, with intent to commit a crime." Id. 110 S.Ct. at 2158.

On June 28, 1967, O'Neal was charged before the Superior Court of the State of California as follows:

The District Attorney of the county of Fresno hereby accuses Donny Roy O'Neal ... of a felony, to wit: violation of section 459 of the penal code, burglary, 2nd dg., in that ... [O'Neal] wilfully and unlawfully entered a building, to wit: the Dime Self Service Laundromat, ... with intent to commit theft therein.

Clerk's Record 53, tab A-1. The resulting judgment of conviction stated:

This certifies that ... [Donnie Roy O'Neal] was convicted by [the] Court; on his plea of guilty; of the crime of Burglary, 2nd degree in violation of section 459 of the Penal Code of the State of California.

Id. at tab A-7. The record thus reveals that O'Neal was convicted of violating Cal. Penal Code Sec. 459 by unlawful entry into a building with intent to commit a crime.

Since O'Neal was convicted of at least three previous felonies qualifying as violent felonies under section 924(e), the district court's decision to enhance O'Neal's sentence was proper. ⁵

II. O'NEAL'S SENTENCE UNDER THE GUIDELINES

The district court sentenced O'Neal to 360 months imprisonment under the career offender provisions of the Sentencing Guidelines applicable to offenses committed at the time of O'Neal's offense. See Guideline 4B1 (1988). ⁶ O'Neal argues that the district court erred in determining that he was a career offender under the Guidelines.

We review de novo the interpretation of a provision of the Sentencing Guidelines. United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).

Guideline 4B1.1 provides in part that a defendant is a career offender if (1) he is at least eighteen years old at the time of the instant offense; (2) the instant offense of conviction is a felony that is a crime of violence; and (3) the defendant has at least two prior felony convictions that are crimes of violence. Only the second and third requirements are at issue in this case.

A. The Instant Offense

At the time of O'Neal's offense, Guideline 4B1.2 defined a "crime of violence" by reference to 18 U.S.C. Sec. 16 (1988). ⁷ Under section 16, a crime of violence is

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

At the outset, we note that section 16(a) does not apply to the instant offense: the offense of possession of a firearm by a felon does not have as an element the use or threatened use of physical force against person or property.

Section 16(b) explicitly limits its application to felonies which, by their nature, involve a substantial risk that physical force will be used against person or property. O'Neal argues that our analysis of whether an offense is violent under section 16(b) must be categorical, i.e., by reference to the statute of conviction rather than the facts underlying the offense. The government argues that inquiry into the underlying facts of the offense is allowed by the Commentary to Guideline 4B1.2, Application Note 1. See United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989) (relying on commentary to inquire into the factual context of the offense), cert. denied, --- U.S. ----, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990).

We find it unnecessary to reach the issue of whether the commentary to Guideline 4B1.2...