U.S. v. Grisel, No. 05-30585.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Graber
• Citation: 488 F.3d 844
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrel Duane GRISEL, Defendant-Appellant.
• Docket Number: No. 05-30585.
• Decision Date: 05 June 2007

488 F.3d 844 UNITED STATES of America, Plaintiff-Appellee,
v.
Darrel Duane GRISEL, Defendant-Appellant. No. 05-30585. United States Court of Appeals, Ninth Circuit. Argued and Submitted En banc March 22, 2007. Filed June 5, 2007.

[488 F.3d 845]

Kendra M. Matthews, Ransom Blackman LLP, Portland, OR, for the defendant-appellant.

Stephen F. Peifer, Assistant U.S. Attorney, Portland, OR, for the plaintiff-appellee.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the amicus curiae.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CR-05-00116-JO.

Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, PAMELA ANN RYMER, ANDREW J. KLEINFELD, HAWKINS, A. WALLACE TASHIMA, SUSAN P. GRABER, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge BEA.

GRABER, Circuit Judge.

We took this case en banc primarily to reexamine the validity of United States v. Cunningham, 911 F.2d 361 (9th Cir.1990) (per curiam). In Cunningham, we held that second-degree burglary under Oregon law is a categorical burglary offense under the analysis required by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for purposes of applying the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e). Cunningham, 911 F.2d at 363. We now hold that Cunningham was wrongly decided and expressly overrule it.

Defendant Darrel Duane Grisel pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a district court must sentence a defendant who violates § 922(g) and who has three prior convictions for violent felonies or serious

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drug offenses to a mandatory minimum of 180 months' imprisonment. 18 U.S.C. § 924(e)(1). The ACCA identifies "burglary" as a violent felony for purposes of the mandatory minimum enhancement. 18 U.S.C. § 924(e)(2)(B)(ii).

At Defendant's sentencing hearing, the government submitted judgments of conviction and indictments or informations for seven second-degree burglaries under Oregon law, Or.Rev.Stat. § 164.215(1), to which Defendant had pleaded guilty. Pursuant to Cunningham, the district court sentenced Defendant to 180 months' imprisonment Defendant timely appealed, and we decided to hear the case en banc initially. See Fed. R.App. P. 35. We review de novo whether a prior conviction is a predicate felony under the ACCA. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997).

Antecedent to examining the substance of his prior convictions, Defendant argues that, procedurally, the government failed to satisfy the ACCA because it did not plead and prove beyond a reasonable doubt the sequence of his prior convictions. Essentially, his argument is twofold. First, Defendant urges that the doctrine of constitutional avoidance requires that we not apply the rule of Almendarez-Torres v. United States, 523 U.S. 224, 243-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity. Alternatively, Defendant argues that the date of an offense falls outside the prior-conviction exception. We are not persuaded by either part of his challenge.

Under the doctrine of constitutional avoidance, "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916). "The doctrine seeks in part to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections." Almendarez-Torres, 523 U.S. at 238, 118 S.Ct. 1219.

But the Supreme Court already has considered and decided the very constitutional questions that arise from judicial determination of prior convictions during sentencing. When the Court has decided expressly that a practice is constitutional, there are no "grave doubts" about its constitutionality. Almendarez-Torres never has been overruled. To the contrary, its rule has been stated and applied repeatedly by the Supreme Court. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court expressed some doubt about whether Almendarez-Torres was correctly decided, but the Court still held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856, 864, 868, 166 L.Ed.2d 856 (2007); and, most recently, James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 1600 n. 8, 167 L.Ed.2d 532 (2007).

Defendant points to Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in support of his constitutional avoidance argument. In Dretke, the Supreme Court tailored its holding in order to avoid a difficult constitutional issue —

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namely, reconsideration of Almendarez-Torres. Id. at 395-96, 124 S.Ct. 1847. We reject Defendant's attempt to turn Dretke on its head by transforming the Court's refusal to overturn or ignore Almendarez-Torres into support for our doing so. The doctrine of constitutional doubt does not trump the principle of stare decisis. "[I]f a precedent of th[e] [Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e] Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (internal quotation marks omitted). The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.

In addition, we reject Defendant's assertion that the dates of his prior convictions are not a part of the "fact" of his prior convictions. When, as here, the face of the document demonstrating Defendant's prior conviction includes the date of the offense, the date is just as much a part of the plea as is the nature of the offense described on the face of the document.¹ Thus, the dates of Defendant's prior convictions were properly before the district court. The question remains whether his prior convictions qualify as predicate felonies under the ACCA.

In Taylor, the Supreme Court established a method of analysis to determine whether a prior conviction is a predicate felony under the ACCA. Using a categorical approach, a court "look[s] only to the fact of conviction and the statutory definition of the prior offense" to determine whether the prior conviction necessarily satisfies 18 U.S.C. § 924(e). Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If the state statute defines the offense more broadly than the federal statute, encompassing crimes both listed and not listed in § 924(e), a court may "go beyond the mere fact of conviction in a narrow range of cases." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Under this modified categorical approach, a prior conviction established after a jury trial is a predicate felony "if the indictment or information and jury instructions show that the defendant was charged only with a[crime listed in § 924(e)], and . . . the jury necessarily had to find [the elements of the crime listed in § 924(e)] to convict." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The Supreme Court later clarified that,

[i]n cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.

Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (citation omitted).

In addition to establishing the categorical and modified categorical approaches, Taylor defined burglary for purposes

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of the ACCA because Congress had deleted the statutory definition when it amended the ACCA in 1986. 495 U.S. at 581-82, 110 S.Ct. 2143; see also James, 127 S.Ct. at 1591 (discussing "the definition of burglary under ACCA that th[e Supreme] Court set forth in Taylor"). The Court in Taylor rejected the use of state statutory labels of crimes. The Court observed that "[t]he word `burglary' has not been given a single accepted meaning by the state courts; the criminal codes of the States define burglary in many different ways," Taylor, 495 U.S. at 580, 110 S.Ct. 2143, and concluded "that `burglary' in § 924(e) must have some uniform definition independent of the labels employed by the various States' criminal codes," id. at 592, 110 S.Ct. 2143. The Court also rejected the common law definition of burglary. The Court reasoned that

[t]he arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns . . . . [C]onstruing `burglary' to mean common-law burglary would come close to nullifying that term's effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.

Id. at 593-94, 110 S.Ct. 2143. Consequently, the...