U.S. v. Lawrence

• Decision Date: 10 December 2010
• Docket Number: No. 09-30285,09-30285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony L. LAWRENCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

627 F.3d 1281

UNITED STATES of America, Plaintiff-Appellee,

v.Anthony L. LAWRENCE, Defendant-Appellant.

No. 09-30285.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 5, 2010.

Filed Dec. 10, 2010.

Aine Ahmed, Russell E. Smoot, Assistant United States Attorneys, Spokane, WA, for the plaintiff-appellee.

Byron G. Powell, Spokane, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. No. 2:08-cr-00177-WFN-1.

Before: WILLIAM C. CANBY, JR., DAVID R. THOMPSON and MARSHA S. BERZON, Circuit Judges.

OPINION

CANBY, Senior Circuit Judge:

Anthony L. Lawrence was convicted by a jury of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), following his involvement in a shooting in early 2008. At sentencing, the district court determined that the Armed Career Criminal Act's ("ACCA") fifteen-year mandatory minimum sentence applied in Lawrence's case. Lawrence now appeals his sentence, arguing that the government failed to prove that he had three previous qualifying convictions that would trigger the ACCA's mandatory minimum.¹ We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

The ACCA provides that a person who is convicted of being a felon in possession of a firearm is subject to a fifteen-year mandatory minimum sentence if that person "has three previous convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The district court found that Lawrence previously had been convicted of not just three, but five, qualifying offenses, including two serious drug offenses and three violent felonies. Because Lawrence now concedes that the two drug convictions qualify as ACCA predicate offenses, we may affirm Lawrence's sentence if we conclude that he was convicted of at least one violent felony.

We review de novo whether a state conviction qualifies as a violent felony under the ACCA. United States v. Ankeny, 502 F.3d 829, 839 (9th Cir.2007). The ACCA defines "violent felony" to include, inter alia, "any crime punishable by imprisonment for a term exceeding one year ... 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). ² We are guided by the precedent of both the Supreme Court and our court in applying this definition. In particular, we bear in mind that "the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person." Johnson, 130 S.Ct. at 1271. In other words, the term "violent felony" "[']suggests a category of violent, active crimes.' " Id. (quoting Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)). We also are cognizant that, to qualify as defining a violent felony, a state statute must require that the physical force be inflicted intentionally, as opposed to recklessly or negligently. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc). ³

To determine whether a statute "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 first apply the "categorical approach" set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003), overruled on other grounds by Fernandez-Ruiz, 466 F.3d at 1132. Under the categorical approach, we consider only "the fact of conviction and the statutory definition of the prior offense," Taylor, 495 U.S. at 602, 110 S.Ct. 2143, not "the particular facts underlying [the] conviction[ ]," id. at 600, 110 S.Ct. 2143. "If the statute of conviction prohibits only conduct that includes the requisite use, threatened use or attempted use of force, we need not look beyond the fact of conviction to conclude that the prior offense was a crime of violence." Grajeda-Ramirez, 348 F.3d at 1125.

For reasons stated below, we hold that Lawrence's conviction for second-degree assault, in violation of Washington Revised Code section 9A.36.021(1)(a) ("Section 9A.36.021(1)(a)"), categorically qualifies as a violent felony under the ACCA. Thus, we need not decide whether Lawrence's previous Washington convictions for either third-degree assault, Wash. Rev.Code § 9A.36.031(1)(f), or felony riot, Wash. Rev.Code § 9A.84.010(1), (2)(b), qualify as ACCA predicate offenses.

Section 9A.36.021(1)(a) provides that "[a] person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree[,] ... [i]ntentionally assaultsanother and thereby recklessly inflicts substantial bodily harm." Wash. Rev.Code § 9A.36.021(1)(a).⁴ Washington courts interpret Section 9A.36.021(1)(a) to have two elements: an act (an intentional assault) and a result (reckless infliction of substantial bodily harm). See, e.g., State v. Keend, 140 Wash.App. 858, 166 P.3d 1268, 1272-73 (2007). Each element requires a different mens rea, and "under [ Section] 9A.36.021(1)(a), a defendant could intend to assault another without thereby intending to inflict substantial bodily harm." Id. at 1273.

This is not the first time that we have considered whether Section 9A.36.021(1)(a) requires the use of physical force against the person of another. In United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005), we held that Section 9A.36.021(1)(a) defined a categorical crime of violence within the meaning of U.S.S.G. § 2L1.2. We considered it sufficient that the statute requires the reckless infliction of substantial bodily injury, an element of statutes that we had held were categorical crimes of violence in United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000), and United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003). See Hermoso-Garcia, 413 F.3d at 1089.

In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), however, the Supreme Court held that the phrase "use of physical force" requires "a higher degree of intent than negligent or merely accidental conduct." Id. at 9, 125 S.Ct. 377. Thus, driving under the influence of alcohol and causing an accidental injury did not qualify as a crime of violence. Id. at 9-10, 125 S.Ct. 377. In Fernandez-Ruiz, we interpreted Leocal also to require more than recklessness, holding that a crime of violence "must involve the intentional use of force against the person or property of another." Fernandez-Ruiz, 466 F.3d at 1132. Fernandez-Ruiz expressly overruled cases such as Ceron-Sanchez that had held that crimes of violence could include offenses requiring only the reckless use of force against someone. Fernandez-Ruiz, 466 F.3d at 1126-27, 1132. By extension, Fernandez-Ruiz has undermined the underlying reasoning of Hermoso-Garcia's holding that Section 9A.36.021(1)(a) requires the use of physical force against someone solely because of its element of reckless infliction of injury.

Nonetheless, Section 9A.36.021(1)(a) differs in an important respect from the statutes at issue in Ceron-Sanchez,Grajeda-Ramirez, and Fernandez-Ruiz. While those statutes all required reckless infliction of injury without any intentional criminal assault,⁵ Section 9A.36.021(1)(a) requires an intentional assault that thereby inflicts substantial bodily harm. Therefore, we must address a question that we had no reason to reach in Hermoso-Garcia: whether Section 9A.36.021(1)(a) is a categorical violent felony because it requires not just recklessinfliction of substantial bodily harm, but also an intentional assault that causes such harm. We conclude that this requirement of intentional criminal assault, coupled with a requirement of substantial bodily harm, renders Section 9A.36.021(1)(a) a violent felony.

Because the Washington criminal code does not define assault, the Washington courts look to the common law for a definition. See, e.g., State v. Wilson, 125 Wash.2d 212, 883 P.2d 320, 323 (1994) (en banc). Washington courts recognize three means of accomplishing an assault: "(1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault]." Id. (internal quotation marks omitted) (bracketed alterations in Wilson ).

In applying the categorical approach, "we look 'at the least egregious end of the state statute's range of conduct.' " United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.2010) (brackets and citation omitted); see also Johnson, 130 S.Ct. at 1269 (looking to "the least [of a state statute's prohibited] acts" to determine whether the defendant was convicted of a violent felony). Here, the "least egregious" of the three assault modalities is the second (unlawful touching with criminal intent), which can be accomplished by merely spitting on another person. See State v. Humphries, 21 Wash.App. 405, 586 P.2d 130, 133 (1978).⁶

An element of "unlawful touching" would not on its own qualify Section 9A.36.021(1)(a) as a categorical violent felony, because the offense would not in all cases punish conduct that is violent in nature. See Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir.2004) (holding that an Oregon harassment statute was not a categorical crime of violence because it may be violated simply by " 'causing spittle to land on the person' of another") (citation omitted); see also Suazo Perez v. Mukasey, 512 F.3d 1222, 1226 (9th Cir.2008) (holding that Washington's fourth-degree assault statute was not a categorical crime of violence because it "can be committed by non-consensual offensive touching"); United States v. Sandoval, 390 F.3d 1077,...