United States v. Martinez

• Decision Date: 14 November 2014
• Docket Number: No. 13–10563.,13–10563.
• Citation: 771 F.3d 672
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Anthony MARTINEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

771 F.3d 672

UNITED STATES of America, Plaintiff–Appellee

v.Michael Anthony MARTINEZ, Defendant–Appellant.

No. 13–10563.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 2014.

Filed Nov. 14, 2014.

Peggy Sasso (argued) and Janet Bateman, Assistant Federal Defenders; Heather E. Williams, Federal Defender, Federal Public Defender's Office, Fresno, CA, for Defendant–Appellant.

Kimberly A. Sanchez (argued) and Laurel J. Montoya, Assistant United States Attorneys; Benjamin B. Wagner, United States Attorney; Camil A. Skipper, Appellate Chief, Office of the United States Attorney, Fresno, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:12–cr–00312–LJO–SKO–1.

Before: MARY M. SCHROEDER, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.

OPINION

OWENS, Circuit Judge:

Michael Anthony Martinez appeals his fifteen-year mandatory-minimum sentence imposed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Martinez contends that the district court erred in concluding that his prior conviction under California Vehicle Code § 2800.2, vehicle flight from a pursuing peace officer, was a “violent felony” under the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). We affirm.¹

I. BACKGROUND

Martinez pled guilty to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the parties disputed whether Martinez's criminal history included three prior “violent felony” convictions. If it did, he would qualify as an armed career criminal and face the ACCA's fifteen-year mandatory-minimum sentence. Martinez conceded that he had two prior violent felonies for domestic violence, but argued that his 2006 California Vehicle Code § 2800.2 conviction was not a violent felony under the ACCA. The district court held that Martinez's conviction under section 2800.2 was an ACCA predicate violent felony, and imposed a mandatory-minimum sentence of fifteen years.

II. DISCUSSION

We review de novo whether California Vehicle Code § 2800.2 is an ACCA predicate violent felony. See United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc).

A. Legal Framework of the ACCA's Residual Clause

A defendant with three prior “violent felony” convictions faces a fifteen-year mandatory-minimum sentence if convicted of violating 18 U.S.C. § 922(g). See 18 U.S.C. § 924(e). “Violent felony” is defined, in relevant part, as any crime 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 ....” Id. § 924(e)(2)(B)(ii) (emphasis added). This last italicized phrase is known as the “residual clause.” United States v. Snyder, 643 F.3d 694, 697 (9th Cir.2011).

A two-prong test determines whether an offense is categorically “violent” under the residual clause.² United States v. Chandler, 743 F.3d 648, 650 (9th Cir.2014) (per curiam). “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. (alteration in original) (internal quotation marks 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. (internal quotation marks omitted). “The inquiry under [the] first prong is straightforward.” Id. “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.” Id. at 650–51 (internal quotation marks omitted).

In James, the Supreme Court held that the second prong 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 v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). However, in Begay, the Court held that a state conviction for driving under the influence was not categorically violent 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). Likewise, in Chambers, the Court applied Begay's “purposeful, violent, and aggressive conduct” formula to conclude that a state conviction for failing to report for penal confinement was not categorically violent under the ACCA. Chambers v. United States, 555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (internal quotation marks omitted). Finally, in Sykes, the Court's most recent ACCA residual clause opinion, the Court returned to focusing on the level of risk posed by the state offense at issue as compared with the level of risk posed by the enumerated offenses. Sykes v. United States, –––U.S. ––––, 131 S.Ct. 2267, 2273–75, 180 L.Ed.2d 60 (2011) (“In general, levels of risk divide crimes that qualify from those that do not.”).

We have interpreted Sykes to mean 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.” Chandler, 743 F.3d at 651 (internal quotation marks omitted).

B. Application to California Vehicle Code § 2800.2

With this legal framework in mind, we must determine whether California Vehicle Code § 2800.2 is “violent” under the ACCA. One violates section 2800.2 if he “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.”³ Cal. Veh.Code § 2800.2(a). Section 2800.2 incorporates, and therefore requires, a violation of section 2800.1, which provides:

Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor ... if all of the following conditions exist:

(1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.

(2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary.

(3) The peace officer's motor vehicle is distinctively marked.

(4) The peace officer's motor vehicle is operated by a peace officer, ... and that peace officer is wearing a distinctive uniform.

Cal. Veh.Code § 2800.1(a). A violation of section 2800.2 is a felony, while a violation of section 2800.1 is a misdemeanor. See People v. Acevedo, 105 Cal.App.4th 195, 129 Cal.Rptr.2d 270, 272 (2003).

In Sykes, the Supreme Court considered a similar Indiana statute and held that “[f]elony vehicle flight is a violent felony for purposes of ACCA” under the residual clause. Sykes, 131 S.Ct. at 2277. The Court reasoned that vehicle flight from police inherently poses a serious potential risk to the safety of pedestrians and other drivers, as well as a risk of violent confrontation with police. Id. at 2273–74. The Court also reasoned that the degree of danger involved in vehicle flight is comparable to, and maybe even greater than, the dangers involved in the residual clause's enumerated offenses of arson and burglary. Id. at 2273–75. The Court distinguished Begay on the ground that the Indiana vehicle flight statute “has a stringent mens rea requirement.” Id. at 2275–76. Under the Indiana statute, “[v]iolators must act ‘knowingly or intentionally,’ ” while the statute in Begay was not “violent” in part because it did not require purposeful or deliberate conduct and was similar to strict liability, negligence, and recklessness crimes. Id. (quoting Ind.Code § 35–44–3–3(a) ). Following Sykes, we held that a conviction under Oregon's vehicle flight statute is also a violent felony under the ACCA. See Snyder, 643 F.3d at 699–700 (“The statute at issue in Sykes is similar enough to the statute at issue here that the Supreme Court's Sykes ruling controls this case.”); see also United States v. Cisneros, 763 F.3d 1236, 1239–40 (9th Cir.2014) (holding that Snyder remains good law after Descamps).

Despite the Supreme Court's holding in Sykes that vehicle flight is a violent felony under the ACCA, Martinez contends that section 2800.2 is distinguishable because it has a lesser mens rea than the Indiana statute. Specifically, Martinez contends that the California statute allows for a conviction for recklessly evading the police, while the Indiana statute requires knowingly or intentionally evading the police, and therefore Begay's requirement of “purposeful, violent, and aggressive” conduct, rather than the analysis in Sykes, applies.

Martinez draws a distinction where there is none. The California vehicle flight statute, like the Indiana statute in Sykes, requires intentional conduct. The plain language of section 2800.1 covers “[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle.” Cal. Veh.Code § 2800.1(a) (emphasis added); see also Judicial Council of Cal.Crim. Jury Instruction No. 2181 (providing in model jury instruction for sections 2800.1(a) and 2800.2 that “[s]omeone commits an act willfully when he or she does it willingly or on purpose”).

Nonetheless, Martinez argues the California vehicle flight statute requires only a mens rea of recklessness because it can be violated whether or not an individual knows that he is evading a police officer so long as a reasonable person would have known he was being pursued by police. Martinez...