United States v. Chandler
Decision Date | 20 February 2014 |
Docket Number | No. 12–10331.,12–10331. |
Citation | 743 F.3d 648 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Tavares CHANDLER, Defendant–Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
James A. Oronoz, (argued), and Lucas J. Gaffney, Oronoz & Ericsson, L.L.C., Las Vegas, NV, for Defendant–Appellant.
Phillip N. Smith, Jr., (argued), Assistant United States Attorney, Daniel G. Bogden, United States Attorney, Robert L. Ellman, Appellate Chief, United States Attorney's Office for the District of Nevada, Las Vegas, NV, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Nevada, Gloria M. Navarro, District Judge, Presiding. D.C. No. 2:10–cr–00482–GMN–PAL–1.
Before: A. WALLACE TASHIMA and JAY S. BYBEE, Circuit Judges, and KIMBA M. WOOD, Senior District Judge.*
Tavares Chandler pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Chandler had been convicted of three “violent felonies,” as defined by the Armed Career Criminal Act (ACCA), and sentenced Chandler to a term of 235 months' imprisonment. Chandler does not contest his extensive criminal history, but he contends that the district court erred in concluding that he had been convicted of three violent felonies. Because we conclude that all three prior convictions are violent felonies under the ACCA, we affirm.
Chandler was indicted in 2010 for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Chandler pleaded guilty to the indictment without the benefit of a plea agreement. Chandler had previously been convicted in Nevada state court of the offenses of (1) second degree kidnapping, Nev.Rev.Stat. §§ 200.310, 200.330; (2) coercion, Nev.Rev.Stat. § 207.190; and (3) conspiracy to commit robbery, Nev.Rev.Stat. §§ 199.480, 200.380. The government sought an increased penalty under the ACCA, arguing that Chandler's Nevada state convictions qualified as violent felonies. See18 U.S.C. § 924(e)(1). Chandler objected, arguing that neither his conspiracy conviction nor his kidnapping conviction was a violent felony as defined by the ACCA. He did not dispute that his conviction for coercion qualified as a violent felony. Over Chandler's objection, the district court determined that Chandler's three Nevada state convictions were all violent felonies under the ACCA and sentenced Chandler to 235–months' imprisonment. Chandler timely appealed.
“We review de novo whether a prior conviction is a predicate felony under the ACCA.” United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc).
Under 18 U.S.C. § 924(e)(1), any “person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, ... shall be ... imprisoned not less than fifteen years.” For purposes of this subsection of the ACCA, a violent felony is “any crime punishable by imprisonment for a term exceeding one year ... [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Notably, a violent felony as defined in the ACCA is nearly identical to a “crime of violence” as defined in the Sentencing Guidelines' Career Offender enhancement.1Compare18 U.S.C. § 924(e)(2)(B)(ii)withU.S. Sentencing Guidelines Manual § 4B1.2(a) ( ). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013); United States v. Crews, 621 F.3d 849, 852 n. 4 (9th Cir.2010); United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003).
In United States v. Park, 649 F.3d 1175 (9th Cir.2011), we established a framework for analyzing whether a conviction under state law is a conviction for a crime of violence. “First, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present[ ] a serious potential risk of physical injury to another.’ ” Id. at 1177–78 (alteration in original) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). “Second, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause—burglary of a dwelling, arson, extortion, and crimes involving explosives.” Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). As we recently observed:
The inquiry under Park 's first prong is straightforward. But the second requirement—whether the state offense is “ ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause”—is more complicated, and must be addressed in light of the Supreme Court's quartet of ACCA cases.
Spencer, 724 F.3d at 1138 (internal citation omitted) (quoting Park, 649 F.3d at 1178).
In James, the Supreme Court held that the second requirement should focus on whether the risk posed by the state offense “is comparable to that posed by its closest analog among the enumerated offenses.” James, 550 U.S. at 203, 127 S.Ct. 1586. In Begay, however, the Court concluded that a state conviction for driving under the influence was not categorically a violent felony under the ACCA because it did not “involve purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144–45, 128 S.Ct. 1581 (internal quotation marks omitted); see also Chambers v. United States, 555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) ( ). In its most recent ACCA opinion, the Court once again focused on the level of risk posed by the state offense at issue compared with the level of risk posed by the enumerated offenses. See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2275, 180 L.Ed.2d 60 (2011) ().
We concluded in Spencer that Sykes meant that Begay 's “ ‘purposeful, violent, and aggressive formulation’ is only dispositive in cases involving a strict liability, negligence, or recklessness offense”—such as driving under the influence—and does not apply to intentional crimes. Spencer, 724 F.3d at 1139;see also Sykes, 131 S.Ct. at 2276 () . Many of our sister circuits have interpreted Sykes similarly. See, e.g.,Harrington v. United States, 689 F.3d 124, 135 (2d Cir.2012) ; United States v. Chitwood, 676 F.3d 971, 979 (11th Cir.2012) (); United States v. Bartel, 698 F.3d 658, 662 (8th Cir.2012); United States v. Meeks, 664 F.3d 1067, 1070 (6th Cir.2012); United States v. Smith, 652 F.3d 1244, 1248 (10th Cir.2011); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir.2011).
Here, neither conspiracy to commit robbery nor second degree kidnapping is a strict liability crime or offense that punishes reckless or negligent behavior. See Doyle v. State, 112 Nev. 879, 921 P.2d 901, 911 (1996) (overruled on other grounds by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004)) ; Nev.Rev.Stat. § 200.310(2) . As a result, we apply the “closest analog test” set forth in James. See Spencer, 724 F.3d at 1140.
With this framework in mind, we turn to Chandler's prior convictions.
We have not previously considered whether conspiracy to commit robbery is a violent felony.2 We have, however, determined that conspiracy to interfere with interstate commerce by robbery is a crime of violence for purposes of the firearm sentencing enhancement in 18 U.S.C. § 924(c)(1). 3See United States v. Mendez, 992 F.2d 1488, 1489 (9th Cir.1993). In Mendez, we explained that a conspiracy “ ‘increases the chances that the planned crime will be committed’ ” because a conspiracy “ ‘provides a focal...
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