U.S. v. O'Neal

• Decision Date: 02 July 1991
• Docket Number: No. 89-10051,89-10051
• Citation: 937 F.2d 1369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donnie Roy O'NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1369

937 F.2d 1369

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.

As Amended on Denial of Rehearing and Rehearing En Banc July

2, 1991.

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.

The Taylor Court noted, however, that some states define burglary more broadly than its generic definition by eliminating the requirement that the entry be unlawful, or by including places other than buildings. California is such a state. See Cal.Penal Code Sec. 459 (1988). In then discussing the question of whether, in the case of a defendant who has been convicted under a non-generic burglary statute, sentence enhancement could be sought on the grounds that the defendant had in fact committed a generic burglary, the Court adopted a formal categorical approach requiring the trial court to "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 110 S.Ct. at 2160 (approving of United States v. Sherbondy, 865 F.2d 996, 1006-10 (9th Cir.1988)).

The Court in Taylor said, however, that the categorical approach may permit the trial court to go beyond the mere fact of conviction in cases in which a jury was actually required to find all the elements of generic burglary. Id. Hence, an offense constitutes burglary for purposes of section 924(e) sentence enhancement in cases in which "the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id.

We do not believe that while suggesting that the categorical approach "may permit the sentencing court to go beyond the mere fact of conviction" that the Court limited the possibilities to the example given; that is, a jury finding. In our view, this refinement of the categorical approach by the Supreme Court also allows for enhancement purposes the use of convictions based on guilty pleas to charges that contain all the elements of generic burglary. In both instances, the sentencing court is limited to a review of the indictment or other charging papers and the resulting judgment of conviction; ⁵ no inquiry into the underlying facts, which was the Supreme Court's primary concern, is involved.

The Court noted that Taylor's burglary convictions were in Missouri state courts in 1963 and 1971. In those years, Missouri had seven different statutes under which one could be charged with second degree burglary. All seven required entry into a structure, but they varied as to the type of structure and means of entry involved. The Taylor Court concluded that it was not apparent from the record which of those statutes were the basis for Taylor's prior convictions and remanded for further proceedings. Just as it is necessary to look at the charging paper to determine which burglary statute applied to Taylor, it is necessary to look at the charging paper to determine whether O'Neal was convicted of generic burglary within the broader California definition of burglary.

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 ...