United States v. Dixon

• Decision Date: 20 November 2015
• Docket Number: No. 14–10318.,14–10318.
• Citation: 805 F.3d 1193
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Edward DIXON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

805 F.3d 1193

UNITED STATES of America, Plaintiff–Appellee

v.James Edward DIXON, Defendant–Appellant.

No. 14–10318.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 18, 2015.

Filed Nov. 20, 2015.

Angela H. Dows, Premier Legal Group, Las Vegas, NV, for Defendant–Appellant.

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

Appeal from the United States District Court for the District of Nevada, Gloria M. Navarro, Chief District Judge, Presiding. D.C. No. 2:12–cr–00222–GMN–VCF–1.

Before: WILLIAM A. FLETCHER, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

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 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:

[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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143 ). A violation of a 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, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (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 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 or immediate presence, and against his will, accomplished by means of force or fear.” We previously determined that CPC § 211 is categorically a “crime of violence” under U.S.S.G. § 2L1.2 because, in all its applications, CPC § 211 always constitutes either generic robbery or generic extortion, both of which are included in U.S.S.G. § 2L1.2's definition of “crime of violence.” See United States v. Flores–Mejia, 687 F.3d 1213, 1215–16 (9th Cir.2012) ; United States v. Becerril–Lopez, 541 F.3d 881, 892–93 (9th Cir.2008). Unlike U.S.S.G. § 2L1.2, however, the ACCA's definition of “violent felony” includes only generic extortion; it omits generic robbery. See 18 U.S.C. § 924(e)(2)(B)(ii). Thus, although they are useful precedents, Flores–Mejia and Becerril–Lopez do not control the outcome of this case.

Generic extortion, which is an enumerated offense included in the ACCA's definition of “violent felony,” is defined broadly enough³ to encompass many violations of CPC § 211, but not all. See Becerril–Lopez, 541 F.3d at 891–92. In Becerril–Lopez, we cited People v. Torres, 33 Cal.App.4th 37, 39 Cal.Rptr.2d 103 (1995), as an example of a case in which the defendant violated CPC § 211 without committing extortion. Becerril–Lopez, 541 F.3d at 892. In Torres, the defendant demanded money from the victims, struck one victim with a gun, and shot another; the use of force negated any possible finding that the defendant intended to take the victims' property with their consent. See id.

(discussing Torres, 39 Cal.Rptr.2d at 111–12 ). Such a violation of CPC § 211 would not constitute extortion, which requires the taking of property to be consensual, but would constitute generic robbery, which has no consent requirement.⁴

Id.

Because the ACCA's definition of “violent felony” lacks “robbery” by name, any violation of CPC § 211 that does not constitute extortion must have “as an element the use, attempted use, or threatened use of physical force against the person.” 18 U.S.C. § 924(e)(2)(B)(i).⁵ This element test contains two additional requirements. First, the “physical force” used must be “violent force,” or “force capable of causing physical pain or injury to another person.”Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Second, the use of force must be intentional, not just reckless or negligent. United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir.2010) ; see also Leocal v. Ashcroft, 543 U.S. 1, 12–13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Although some violations of CPC § 211 not constituting extortion—such as the conduct described in Torres —would meet the element test, other violations of CPC § 211 would not.

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