United States v. Dixon

• Decision Date: 20 November 2015
• Docket Number: No. 14-10318,14-10318
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD DIXON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES EDWARD DIXON, Defendant-Appellant.

No. 14-10318

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: September 18, 2015
November 20, 2015

FOR PUBLICATION

D.C. No. 2:12-cr-00222-GMN-VCF-1

OPINION

Appeal from the United States District Court for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding

Argued and Submitted September 18, 2015—San Francisco, California

Before: William A. Fletcher, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

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SUMMARY^*

Criminal Law

The panel vacated a sentence and remanded for resentencing in a case in which the district court found that the defendant had three prior convictions for "violent felonies," as defined by the Armed Career Criminal Act.

The panel held that Calif. Penal Code § 211 (robbery) is not a categorical match to the ACCA's definition of "violent felony" because § 211 criminalizes conduct not included within the ACCA's definition. The panel also held that § 211 contains only alternative means and is not divisible. The panel therefore concluded that a conviction for violating § 211 cannot serve as a predicate "violent felony" conviction for the application of a mandatory minimum sentence under the ACCA.

COUNSEL

Angela H. Dows, Premier Legal Group, Las Vegas, Nevada, for Defendant-Appellant.

William Ramsey Reed (argued) and Elizabeth Olson White, Assistant United States Attorneys, Reno, Nevada, for Plaintiff-Appellee.

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OPINION

BEA, Circuit Judge:

James Dixon pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Upon conviction, and at sentencing, the district court found that Dixon had three prior convictions for "violent felonies," as defined by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B): two robbery convictions under California Penal Code ("CPC") § 211 and one assault-with-a-deadly-weapon conviction under Nevada Revised Statutes ("NRS") § 200.471. As a result, the district court sentenced Dixon to 15 years of imprisonment, the mandatory minimum sentence under the ACCA when a defendant has three prior "violent felony" convictions. See 18 U.S.C. § 924(e)(1). Dixon appeals the district court's imposition of the mandatory minimum sentence, contending that his prior convictions are not "violent felony" convictions as defined by the ACCA. We hold that a violation of CPC § 211 does not meet the ACCA's definition of "violent felony." As Dixon therefore does not have three predicate "violent felony" convictions, we vacate his mandatory minimum sentence and remand this case to the district court for resentencing.

I

The relevant facts are not in dispute. In 2012, a Nevada Highway Patrol officer pulled Dixon over because the windows of his vehicle were excessively tinted. When the officer approached the vehicle, he smelled marijuana and saw a small amount of marijuana in an open pocket of a backpack inside the vehicle. A second officer arrived at the scene and searched the vehicle, finding a .38 caliber revolver among

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Dixon's work tools. Dixon admitted he knew the gun was there, but claimed he was holding it for a co-worker and had forgotten about it.

Dixon, who had nine prior felony convictions, pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court found that three of Dixon's prior convictions qualified as "violent felony" convictions, as defined by the ACCA: 1983 and 1987 convictions for robbery under CPC § 211 and a 2002 conviction for assault with a deadly weapon under NRS § 200.471. As a result, the district court imposed a 15-year prison sentence, the mandatory minimum sentence under the ACCA when a defendant has three prior "violent felony" convictions. See 18 U.S.C. § 924(e)(1). Dixon appeals only his sentence, claiming, as he did in the district court, that he does not have three "violent felony" convictions, as defined by the ACCA, and thus does not qualify for the mandatory minimum sentence.

II

The ACCA prescribes a mandatory minimum sentence of 15 years of imprisonment when a defendant has three prior convictions for "violent felonies" or "serious drug offenses." 18 U.S.C. § 924(e)(1). The district court imposed the mandatory minimum sentence after finding that Dixon had three prior convictions for "violent felonies," as defined by the ACCA.¹ For purposes of the ACCA, a "violent felony" is:

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[A]ny 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; or

(ii) is burglary, arson, or extortion, [or] involves use of explosives . . . .²

18 U.S.C. § 924(e)(2)(B). To determine whether a state statute of conviction meets the ACCA's definition of "violent felony," a court must apply the categorical approach announced by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). See, e.g., United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc). We review de novo whether a state statute of conviction is a categorical match to the definition of "violent felony." See id. at 846.

A. Taylor's Categorical Approach

Under Taylor's categorical approach, a court determines whether a prior conviction under a state statute qualifies as a "violent felony" conviction under the ACCA by looking "only to the fact of conviction and the statutory definition of the prior offense," not to the facts underlying the conviction. Id. at 847 (quoting Taylor, 495 U.S. at 602). A violation of a

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state statute is categorically a "violent felony" under the ACCA "only if the [state] statute's elements are the same as, or narrower than," those included in the ACCA's definition of "violent felony." Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). In identifying the elements of a state statute, a court considers the language of the statute and judicial opinions interpreting it. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013); United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997). To evaluate whether a state statute matches one of the offenses enumerated in 18 U.S.C. § 924(e)(2)(B)(ii)—burglary, arson, or extortion—a court compares the elements of the state statute with the elements of the "generic" crime, or the offense as commonly understood. See Rodriguez-Castellon, 733 F.3d at 853; see also Descamps, 133 S. Ct. at 2281.

If a state statute defines as criminal more conduct than is included in the ACCA's definition of "violent felony," then a court must determine whether the state statute can be divided into violations that constitute "violent felonies" under the ACCA and others that do not. See Descamps, 133 S. Ct. at 2283-84; see also Rendon v. Holder, 764 F.3d 1077, 1084-86 (9th Cir. 2014). To be divisible, a state statute must contain "multiple, alternative elements of functionally separate crimes." Rendon, 764 F.3d at 1085 (emphasis omitted). If a state statute is divisible, a court may then take into consideration certain documents, such as charging documents or a plea agreement, to determine whether the defendant was convicted of violating a prong of the statute that meets the ACCA's definition of "violent felony." Id. at 1083-84. If, however, a state statute defines as criminal more conduct than is included in the ACCA's definition of "violent felony" and is not divisible, then a conviction under that statute cannot serve as a predicate "violent felony" conviction

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under the ACCA for application of a mandatory minimum sentence. See Descamps, 133 S. Ct. at 2283-86.

B. Application of the Categorical Approach to CPC § 211

We turn first to whether CPC § 211 is a categorical match to the ACCA's definition of "violent felony." We conclude that CPC § 211 is not a categorical match because it criminalizes conduct not included within the ACCA's definition of "violent felony."

CPC § 211 prohibits "the felonious taking of personal property in the possession of another, from his person...