United States v. Lee

• Decision Date: 06 May 2016
• Docket Number: No. 13–10517.,13–10517.
• Citation: 821 F.3d 1124
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason LEE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

821 F.3d 1124

UNITED STATES of America, Plaintiff–Appellee

v.Jason LEE, Defendant–Appellant.

No. 13–10517.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 2014.

Submission Vacated Jan. 16, 2015.

Resubmitted April 28, 2016.

Filed May 6, 2016.

Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, CA, for Defendant–Appellant.

Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, Laurie Kloster Gray (argued), Assistant United States Attorney, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, Senior District Judge, Presiding. D.C. No. 3:09–cr–00193–CRB–1.

Before: CARLOS T. BEA, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge HURWITZ

; Dissent by Judge IKUTA.

OPINION

HURWITZ

, Circuit Judge:

Jason Lee was convicted of distributing crack cocaine. He appeals only the resulting sentence. Because we find that the district court erred by imposing a career offender enhancement under § 4B1.1(a)(3) of the United States Sentencing Guidelines

(“Guidelines”), we vacate the sentence and remand for resentencing.

I.

Lee had two prior California drug convictions. In light of those convictions, after the jury found Lee guilty of distributing crack cocaine in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B), the district court applied the career offender enhancement of Guidelines § 4B1.1 in calculating the Guidelines range. Under the Fair Sentencing Act of 2010, Pub. L. No. 111–220, § 2, 124 Stat. 2372, 2372 (amending 21 U.S.C. § 841 ), the court calculated the Guidelines range as 262 to 237 months, but sentenced Lee to 180 months in custody and ten years of supervised release.

On appeal, we held that only one of Lee's drug convictions qualified as a predicate “controlled substance offense” under the career offender enhancement. United States v. Lee (Lee I ), 704 F.3d 785, 790–92 (9th Cir.2012)

. We vacated Lee's sentence, but because the drug convictions were not Lee's only prior convictions, we remanded for the district court to “consider whether Lee's convictions under California Penal Code §§ 69 and 243.1 ” were for “crimes of violence” under § 4B1.1(a)(3) of the Guidelines, and thus were “predicate offenses that, in conjunction with” the drug conviction, “would qualify Lee as a career offender.” Id. at 792.

On remand, the district court found that each conviction was for a “crime of violence.” Applying the career offender enhancement, the court calculated the Guidelines range as 360 months to life, but sentenced Lee to ten years in prison and ten years of supervised release. Lee timely appealed.

II.

“All sentencing proceedings are to begin by determining the applicable Guidelines range.” United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008)

(en banc). In calculating a sentence, the district court is required by § 1B1.1 of the Guidelines first to determine the base offense level, and then make appropriate upward or downward adjustments. At issue in this case is Part B of Chapter Four of the Guidelines, which requires enhancement of the offense level of a “career offender.” Section 4B1.1(a) defines a “career offender” as a defendant who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Section 4B1.2(a) in turn defines a “crime of violence” as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The final clause in § 4B1.2(a)

, beginning with the words “or otherwise,” is commonly referred to as the “residual clause.” See, e.g.,

United States v. Crews, 621 F.3d 849, 852 (9th Cir.2010).

“We review de novo a district court's ‘interpretation of the Sentencing Guidelines and its determination that a defendant qualifies as a career offender’ under U.S.S.G. § 4B1.1

.” United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir.2010) (quoting United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir.2008) ). “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz–Camarena, 631 F.3d 1028, 1030 (9th Cir.2011) ; see also

Molina–Martinez v. United States, –––U.S. ––––, 136 S.Ct. 1338, 1345–46, 194 L.Ed.2d 444 (2016).¹

III.

Lee contends that he is not a “career offender” because he does not have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)

. Because we have already held that Lee's 1998 Alameda County Superior Court conviction for violating California Health & Safety Code § 11352(a) “qualifies as a predicate controlled substance offense,” Lee I, 704 F.3d at 792, the issue for decision is whether either of Lee's convictions under California Penal Code § 243.1 or § 69(a) are “crimes of violence” under Guidelines § 4B1.1(a). The government does not contend that either § 243.1 or § 69 is a controlled substance offense, “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or corresponds to an enumerated crime in § 4B1.2(a)(2). The only question, then, is whether, under the residual clause, either crime “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

A.

In interpreting the residual clause, our jurisprudence has been informed by cases interpreting an identical clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)

. See

United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013). We vacated submission in this case pending the Supreme Court's decision in Johnson v. United States, which found the ACCA residual clause unconstitutionally vague. ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In light of a division among our sister circuits as to whether the residual clause in Guidelines § 4B1.2(a)(2) is also void for vagueness, we then requested supplemental briefing. Compare

Ramirez v. United States, 799 F.3d 845, 856 (7th Cir.2015) (acting “on the assumption that the Supreme Court's reasoning applies to section 4B1.2 as well”); United States v. Maldonado, 636 Fed.Appx. 807, 810, 2016 WL 229833, *3 & n. 1 (2d Cir. Jan. 20, 2016) (holding the Guidelines clause void for vagueness and collecting cases) with

United States v. Matchett, 802 F.3d 1185, 1193–95 (11th Cir.2015) (rejecting a vagueness challenge to § 4B1.2(a)(2) of the Guidelines). Because we find that neither of Lee's convictions would qualify as a “crime of violence” under our pre-Johnson caselaw, we need not address this constitutional question.²

California Penal Code § 243.1

provides:

When a battery is committed against the person of a custodial officer as defined in Section 831 of the Penal Code

, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties, the offense shall be punished by imprisonment....

Because § 243.1

is indivisible, we apply the pure categorical approach in analyzing whether it qualifies as a “crime of violence.” See

Descamps v. U.S., ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In determining whether an offense categorically qualifies as a crime of violence under the residual clause, “we generally examine two criteria.” United States v. Park, 649 F.3d 1175, 1177 (9th Cir.2011). “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 and internal quotation omitted). “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) ). Both criteria must be satisfied for a conviction to qualify as a crime of violence. See

United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013).

Under California Penal Code § 242

, simple battery “need not involve any real violence,” and “the least touching may constitute battery.” People v. Mesce, 52 Cal.App.4th 618, 60 Cal.Rptr.2d 745, 756 (1997) (alteration and quotation marks omitted). The parties agree that a violation of California Penal Code § 243.1 requires no more force than a simple battery. But, the government argues that because § 243.1 involves a battery against a “custodial officer ... in the performance of his or her duties,” the “serious potential risk” requirement of Guidelines § 4B1.2(a)(2) is met.

The Fourth Circuit has persuasively rejected an identical argument, holding that a conviction for violating a Virginia statute prohibiting assault and battery on a police officer, which “may be accomplished by the slightest touching or without causing physical injury to another,” did not qualify as a crime of violence under the Guidelines. United States v. Carthorne, 726 F.3d 503, 514 (4th Cir.2013)

.³ The Fourth Circuit reasoned that “because this physical contact element ... may be satisfied in a relatively inconsequential manner, that statute cannot, by reason of its elements, be viewed as presenting a serious potential risk of physical injury.” Id.

We agree. In doing so, we depart from the reasoning of the First Circuit in United States v. Dancy, which upheld the application of the Armed Career...