United States v. Simmons

• Decision Date: 03 April 2015
• Docket Number: No. 11–10459.,11–10459.
• Citation: 782 F.3d 510
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jordon SIMMONS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

782 F.3d 510

UNITED STATES of America, Plaintiff–Appellee

v.Jordon SIMMONS, Defendant–Appellant.

No. 11–10459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2014.

Filed April 3, 2015.

Peter C. Wolff, Jr. (argued), Federal Public Defender, Honolulu, HI, for defendant-appellant.

Florence T. Nakakuni, United States Attorney, Jonathan M.F. Loo (argued), Assistant U.S. Attorney, Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, J. Michael Seabright, District Judge, Presiding. DC No. 1:10 cr–0789 JMS.

Before: A. WALLACE TASHIMA, JOHNNIE B. RAWLINSON, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Appellant Jordan Simmons (“Simmons”) appeals from the judgment of the district court sentencing him to 168 months' imprisonment. He contends that the district court erred in sentencing him as a career offender because it erroneously concluded that his prior conviction for second degree escape in violation of Hawaii Revised Statutes § 710–1021 was a “crime of violence” as that term is defined by U.S. Sentencing Guidelines (“Sentencing Guidelines” or “U.S.S.G.”) § 4B1.1(a). We agree. We therefore vacate Simmons' sentence and remand for resentencing.

I.

Simmons pleaded guilty, without a plea agreement, to six drug and firearm offenses. He was sentenced to 204 months' imprisonment, followed by four years of supervised release.¹ Simmons' sentence was based, in part, on the district court's determination that Simmons was a “career offender” under U.S.S.G. § 4B1.1(a). Application of the career offender guidelines raised Simmons' criminal history category from category III to category VI, which increased his advisory Guidelines sentencing range from 135–168 months' imprisonment to 188–235 months' imprisonment.

U.S.S.G. § 4B1.1 provides, in relevant part, that “[a] defendant is a career offender if ... the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Simmons had previously been convicted in Hawaii state court of one count of second degree assault, in violation of Hawaii Revised Statutes § 707–711, and one count of second degree escape, in violation of Hawaii Revised Statutes § 710–1021. The district court concluded that both prior convictions were “crimes of violence” under § 4B1.1(a). Simmons timely appealed, asserting that his second degree escape conviction is not a “crime of violence.”²

II.

We review de novo a district court's determinations under the Sentencing Guidelines, including the district court's assessment of whether a prior conviction qualifies as a “crime of violence.” See United States v. Gomez, 757 F.3d 885, 891–92 (9th Cir.2014).

III.

28 U.S.C. § 994(h) “directs the [Sentencing] Commission to ‘assure’ that the guidelines specify a sentence ‘at or near’ the statutory maximum” for career offenders. United States v. Stewart, 761 F.3d 993, 996 (9th Cir.2014) (quoting 28 U.S.C. § 994(h) ). “Carrying out this mandate, the Commission promulgated the career offender guidelines, which categorize an adult defendant as a ‘career offender’ when the defendant (1) is convicted of ‘a felony that is either a crime of violence or a controlled substance offense’ and (2) ‘has at least two prior felony convictions of either a crime of violence or a controlled substance offense.’ ” Id. at 996–97 (quoting U.S.S.G. § 4B1.1(a) ).

To determine whether a “prior felony conviction” qualifies as a crime of violence under § 4B1.1(a), we apply “the ‘categorical approach’ and ‘modified categorical approach’ set forth in Taylor v. United States, 495 U.S. 575 [110 S.Ct. 2143, 109 L.Ed.2d 607] (1990).” United States v. Lee, 704 F.3d 785, 788 (9th Cir.2012). Under this approach, “we look only to the statute of conviction,” and “compare the elements of the statutory definition of the crime of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.” Id. (citation and internal quotation marks omitted). “If the statute of conviction ‘sweeps more broadly than the generic crime, a conviction under that law cannot count as a qualifying predicate, even if the defendant actually committed the offense in its generic form.’ ” United States v. Caceres–Olla, 738 F.3d 1051, 1054 (9th Cir.2013) (quoting Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (brackets omitted)). If the statute of conviction is not a categorical crime of violence, sentencing courts may, in a “narrow range of cases,” apply the “modified categorical approach,” and “look beyond the statutory elements to the charging paper and jury instructions to determine whether the defendant's conviction necessarily involved facts corresponding to the generic federal offense.” Id. at 1054 n. 2 (quoting Descamps, 133 S.Ct. at 2283–84 ) (internal quotation marks omitted).

A.

Because § 710–1021 includes both active and passive forms of escape, the district court properly concluded that a conviction under that statute is not a categorical crime of violence. See Chambers v. United States, 555 U.S. 122, 126–27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).³ It then proceeded to apply the modified categorical approach and, after reviewing Simmons' state court plea colloquy (among other documents), concluded that Simmons' crime, as committed, constituted a crime of violence. Specifically, the district court relied upon Simmons' admission that he “ran away from a police car” to conclude that this prior offense created a serious risk of injury; therefore, that it was a crime of violence under the modified categorical approach.

At the time of Simmons' sentencing, the district court's application of the modified categorical approach was correct under our then-controlling decision, United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), abrogated by Descamps, 133 S.Ct. at 2286–91. In Aguila–Montes de Oca, we held that, in applying the modified categorical approach, sentencing courts may “look beyond the statute of conviction to determine whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish that the defendant was convicted of all of the elements of the relevant federal generic offense.” Sanchez–Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir.2012) (citing Aguila–Montes de Oca, 655 F.3d at 921 ). If the prior conviction “necessarily rested” on certain facts, and those facts “satisf[ied] the elements of the generic offense,” then the prior conviction was a qualifying offense. Aguila–Montes de Oca, 655 F.3d at 936. The district court applied this methodology here because Simmons' prior conviction “necessarily rested” on his escape from a police car, and because the act of escaping from a police car satisfied the generic definition of a “crime of violence” under Aguila–Montes de Oca, the district court held that Simmons' second degree escape conviction was a crime of violence under U.S.S.G. § 4B1.1(a).

As part of our decision in Aguila–Montes de Oca, we concluded that the modified categorical approach applied not only to “divisible” statutes—that is, statutes that “list[ ] multiple, alternative elements, and so effectively create[ ] several different ... crimes,” Descamps, 133 S.Ct. at 2285 (citation and internal quotation marks omitted)—but also to “indivisible” statutes—that is, statutes that set forth “a single, indivisible set of elements,” id. at 2286. Aguila–Montes de Oca, 655 F.3d at 926. We reasoned that “[t]he only conceptual difference between a divisible statute and a non-divisible statute is that the former creates an explicitly finite list of possible means of commission, while the latter creates an implied list of every means of commission that otherwise fits the definition of a given crime.” Aguila–Montes de Oca, 655 F.3d at 927. To illustrate our point, we provided the following example:

“[A] statute that requires use of a ‘weapon’ is not meaningfully different from a statute that simply lists every kind of weapon in existence. Using the word ‘weapon’ as an element is not analytically different from creating a list of all conceivable weapons (‘gun, axe, sword, baton, slingshot, knife, machete, bat,’ and so on).” Id.

After Simmons was sentenced, however, the Supreme Court abrogated this approach in Descamps. There, the Court clarified that the modified categorical approach could only be employed if the statute of conviction was divisible, and that the modified categorical approach had “no role to play” for indivisible statutes. 133 S.Ct. at 2285. The modified categorical approach could only be applied to divisible statutes, the Court held, because it was an “elements-based inquiry.” Id. at 2287. As the Court explained, “when a state statute punishes a broader range of conduct than a federal, generic crime, ‘only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime.’ ” Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir.2014) (quoting Descamps, 133 S.Ct. at 2290 ). “That is because ‘a prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt.’ ” Id. (quoting Descamps, 133 S.Ct. at 2290 (brackets omitted)).

By contrast, a conviction of an indivisible statute carries no such requirement of jury unanimity. See id. (“While the jury faced with a divisible statute must unanimously agree on the particular offense of which the petitioner has been convicted (and thus, the alternative element), the opposite is true of indivisible statutes; the jury need not so agree.”). Thus, our conclusion that “a statute that requires use of a ‘wea...