U.S. v. Ladwig

• Decision Date: 27 December 2005
• Docket Number: No. 04-30393.,04-30393.
• Citation: 432 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig Allen LADWIG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.3d 1001

UNITED STATES of America, Plaintiff-Appellee, v. Craig Allen LADWIG, Defendant-Appellant.

No. 04-30393.

United States Court of Appeals, Ninth Circuit.

Submitted December 7, 2005.^*

Filed December 27, 2005.

Christina L. Hunt, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for defendant-appellant Craig Allen Ladwig.

Stephanie J. Lister, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CR-03-00232-RHW.

Before GOULD and BERZON, Circuit Judges, and SCHWARZER,^** District Judge.

GOULD, Circuit Judge.

We consider whether a felony conviction for making a harassing telephone call under Washington state law, R.C.W. § 9.61.230(3)(b) (2002),¹ is a predicate offense under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We hold that it is.

I

On November 4, 2003, a federal grand jury in the Eastern District of Washington indicted Craig Allen Ladwig on two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Ladwig pled guilty to Count Two of the indictment on March 3, 2004.² The Presentence Report, prepared pursuant to Fed.R.Crim.P. 32, indicated that the ACCA should apply because Ladwig had three prior convictions for committing violent felonies. These convictions were under Washington law, and included a conviction for making a harassing telephone call under R.C.W. § 9.61.230(3)(b)³ and convictions for second degree burglary and attempted second degree rape.

On September 3, 2004, the district court conducted a sentencing hearing, and heard argument on whether Ladwig's convictions for second degree burglary and making a harassing telephone call qualified as predicate offenses under the ACCA.⁴ The district court concluded that Ladwig's conviction for making a harassing telephone call was a predicate felony under the ACCA, relying on the Washington statute criminalizing the making of harassing telephone calls, the text of the ACCA, and United States v. Bonner, 85 F.3d 522, 527 (11th Cir.1996) ("Because the use or threatened use of force is an element of the crime and he threatened to use violence, making a threatening telephone call is a crime of violence under [U.S.S.G.] § 4B1.2."). The district court sentenced Ladwig to 200 months imprisonment and 5 years supervised release, and imposed a $100 special penalty assessment. The only issue in this timely appeal is whether Ladwig's felony conviction for making a harassing telephone call under R.C.W. § 9.61.230(3)(b) is a predicate felony under the ACCA.

II

The district court's conclusion that a prior conviction may be used for purposes of sentencing enhancement is reviewed de novo. United States v. Lopez-Montanez, 421 F.3d 926, 928 n. 2 (9th Cir.2005).

III

The ACCA provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1). The ACCA defines the term "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...." Id. § 924(e)(2)(B).

We have previously held that we take a "categorical approach" to assessing whether a prior felony conviction meets the ACCA's definition of "violent felony." United States v. Wofford, 122 F.3d 787, 792 (9th Cir.1997) ("In applying § 924(e), this court must take a `categorical approach.' That is, the court should `look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.'") (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).⁵ In determining what constitutes a violent felony, federal law, rather than state law, is dispositive. United States v. Sherbondy, 865 F.2d 996, 1005 (9th Cir.1988) ("[W]e look to the federal definition when determining whether a defendant was convicted of a violent felony.").

We have not previously decided whether making a harassing telephone call qualifies as a violent felony for the purposes of the ACCA. The Washington statute generally makes it a gross misdemeanor to make harassing telephone calls, but it characterizes the conduct as a felony if the caller threatens to kill. See R.C.W. § 9.61.230(3)(b). The only way to be convicted of a felony under this subsection is to threaten to kill.⁶ See id. Because all conduct that R.C.W. § 9.61.230(3)(b) treats as a felony is conduct that qualifies as a violent felony under the ACCA, a felony conviction under this provision qualifies as a violent felony under the categorical approach. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143 ("We think that the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.").⁷ Stated differently, R.C.W. § 9.61.230(3)(b) in all cases requires for conviction and felony punishment that there has been a threat to kill, so the minimum elements of this statutory provision necessarily include threatened use of violence. Ladwig's conviction for making a harassing telephone call satisfies the ACCA definition of "violent felony" because he was imprisoned for more than one year for a crime "that—(i) has 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).

We find further support for our conclusion in Sherbondy. There, we considered whether a conviction under California Penal Code section 136.1(c)(1), "which makes it a felony to `prevent or dissuade' a witness or victim from testifying in a trial `[w]here the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person,'" is to be considered a violent felony under the ACCA. Sherbondy, 865 F.2d at 1003 (quoting CAL. PENAL. CODE § 136.1(c)(1)) (emphasis added). Using a categorical approach, we reversed the district court's determination that Sherbondy's conviction was a violent felony under the ACCA because the California statute criminalized threats against both property and persons. Id. at 1010-11. In contrast to the California statute in Sherbondy, R.C.W. § 9.61.230(3)(b) is not overinclusive because it makes only a threat to kill another person a felony; threats against property, or threats against persons short of a threat to kill, are not felonies under R.C.W. § 9.61.230(3)(b). Under the logic of Sherbondy and under the categorical approach of Taylor, Ladwig's conviction qualifies as a predicate offense under the ACCA.

Ladwig argues that his conviction under R.C.W. § 9.61.230(3)(b) does not qualify as a crime of violence for two reasons. First he argues that "[i]t is nonsensical to believe that a person who may use the telephone to harass someone should be considered a violent offender." The ACCA is written in the disjunctive, applying to any felony "that has 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) (emphasis added). By using the disjunctive "or," Congress explicitly provided that the ACCA applies to the "threatened use of physical force against the person of another," id., even absent actual or attempted physical force against the person of another.

We also consider persuasive the decision of the United States Court of Appeals for the Eleventh Circuit, relied upon by the district court, wherein the Eleventh Circuit considered whether a felony conviction under 18 U.S.C. § 115(a)(1)⁸ is a "crime of violence" under § 4B1.2 of the United States Sentencing Guidelines. Bonner, 85 F.3d at 526-27. The court in Bonner concluded: "Because the use or threatened use of force is an element of the crime and he threatened to use violence, making a threatening telephone call is a crime of violence under § 4B1.2." Id. at 527.⁹ We agree with this reasoning of the Eleventh Circuit. We reject Ladwig's argument that it is "nonsensical" to conclude that making a harassing telephone call is a "violent felony" for purposes of the ACCA, because the definition of "violent felony" in the ACCA squarely applies to prior convictions that include as a necessary element of the offense the "threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).

Second, Ladwig argues that because the State of Washington does not consider the making of a harassing telephone call to be a violent offense, see R.C.W. § 9.94A.030(48) (defining a number of specific offenses as "violent offenses," but not including making harassing telephone calls), a conviction under R.C.W. § 9.61.230(3)(b) is not a "violent felony" under the ACCA. However, we look to federal law, not state law, to determine whether the required elements of a state law conviction are sufficient to make the conduct a "violent felony" within the meaning of the ACCA. See Sherbondy, 865 F.2d at 1005. That the State of Washington has chosen not to consider the making of harassing telephone calls in general to be a violent felony does not trump the Congressional determination, in the ACCA, that the conduct defined by Congress in section 924(e...