United States v. Spencer

• Decision Date: 29 July 2013
• Docket Number: No. 12–10078.,12–10078.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ashford Kaipo SPENCER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

724 F.3d 1133

UNITED STATES of America, Plaintiff–Appellee,

v.Ashford Kaipo SPENCER, Defendant–Appellant.

No. 12–10078.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 2013.

Filed July 29, 2013.

Pamela O'Leary Tower (argued), Law Office of Pamela O'Leary Tower, Kenwood, CA; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Defendant–Appellant.

Chris A. Thomas (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney, District of Hawaii, Honolulu, HI, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Hawaii, J. Michael Seabright, District Judge, Presiding. D.C. No. 1:10–cr–00566–JMS–1.

Before: SUSAN P. GRABER, JAY S. BYBEE, and MORGAN CHRISTEN, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

Ashford Kaipo Spencer was convicted of two federal drug-trafficking felonies. At sentencing, the district court determined that Spencer was a “career offender” under § 4B1.1 of the Sentencing Guidelines because Spencer had two prior convictions for “crimes of violence,” as defined in § 4B1.2(a). In making this determination, the district court applied the “categorical approach” to conclude that Spencer's prior conviction for criminal property damage in the first degree under § 708–820(1)(a) of the Hawaii Revised Statutes constituted a conviction for a “crime of violence.”

On appeal, Spencer argues that the district court erred in sentencing him as a career offender because § 708–820(1)(a) is not a crime of violence as defined by the Sentencing Guidelines. In the alternative, Spencer argues that the “residual clause” of the definition of “crime of violence” contained in § 4B1.2(a)(2), which the district court concluded applied to him, is unconstitutionally vague.

We agree with the decision of the district court, and therefore hold that § 708–820(1)(a) is categorically a crime of violence under the residual clause of § 4B1.2(a)(2) of the Sentencing Guidelines.¹ Spencer's claim that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague is foreclosed by Supreme Court precedent.

I. FACTS AND PROCEDURAL HISTORY

In 2010, Spencer was convicted of two federal counts of felonious drug trafficking. The U.S. Probation Office originally recommended in its draft Presentence Investigation Report (PIR) that Spencer be treated as a “career offender” under § 4B1.1 of the Sentencing Guidelines, based on Spencer's two prior felony convictions for “crimes of violence”—(1) kidnaping and robbery in the second degree, and (2) criminal property damage in the first degree.

The only prior conviction at issue here is Spencer's conviction for criminal property damage in the first degree under § 708–820(1)(a) of the Hawaii Revised Statutes. Haw.Rev.Stat. § 708–820(1)(a) (1996).

Spencer objected to the categorization of his § 708–820(1)(a) criminal property conviction as a crime of violence. In response to Spencer's objections, the U.S. Probation Office revised its position in its final PIR, recommending that § 708–820(1)(a) not be classified as a crime of violence and that Spencer not be treated as a career offender. The district court, however, disagreed. At sentencing, the district court concluded that Spencer's § 708–820(1)(a) conviction for criminal property damage categorically constituted a crime of violence, as defined in § 4B1.2(a)(2) of the Sentencing Guidelines, and held that Spencer's prior convictions rendered him a “career offender” under § 4B1.1.

Applying the sentencing enhancement based on Spencer's status as a career offender, the district court determined that the sentencing range dictated by the Sentencing Guidelines was 360–480 months. Without the “career offender” finding, the Guidelines range would have been 151–188 months. The district court imposed a sentence of 204 months in prison, significantly below the Guidelines range given the “career offender” finding. Spencer timely appealed.

II. DISCUSSION

On appeal, Spencer argues that his § 708–820(1)(a) conviction was not a conviction for a crime of violence, and claims that he should not have been sentenced as a “career offender” under the Sentencing Guidelines. Spencer also argues that the residual clause of the definition of “crime of violence,” contained in § 4B1.2(a)(2) of the Sentencing Guidelines, is unconstitutionally vague. We disagree.²

A. Career Offender Claim

As relevant here, the Sentencing Guidelines classify a defendant as a “career offender” if he “has at least two prior felony convictions of ... a crime of violence.” U.S.S.G. § 4B1.1(a). Section 4B1.2(a) of the Sentencing Guidelines 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.

U.S.S.G. § 4B1.2(a).

At the time of Spencer's conviction in 2001, Hawaii defined criminal property damage in the first degree as follows:

A person commits the offense of criminal property damage in the first degree if ... [t]he person intentionally damages property and thereby recklessly places another person in danger of death or bodily injury....

Haw.Rev.Stat. § 708–820(1)(a) (1996).

The district court held, and both parties agree, that Spencer's prior § 708–820(1)(a) conviction for criminal property damage in the first degree does not qualify as a conviction involving the “use, attempted use, or threatened use of physical force against the person of another” as required by § 4B1.2(a)(1), or as a conviction for one of specific offenses listed in § 4B1.2(a)(2): “burglary of a dwelling, arson, or extortion, [or a crime that] involves use of explosives.” Thus, the question on appeal is whether Spencer's conviction under § 708–820(1)(a) qualifies as a conviction for a crime of violence under § 4B1.2(a)'s residual clause, which includes crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.”

1. Legal Framework

“We use the categorical approach ... to determine whether a defendant's prior conviction satisfies the Guidelines definition of a crime of violence.” United States v. Crews, 621 F.3d 849, 851 (9th Cir.2010). Under the categorical approach:

we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the [sentence-enhancing category], without inquiring into the specific conduct of this particular offender.

James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (internal quotation marks and citation omitted). It is not “requir[ed] that every conceivable factual offense covered by a statute [of conviction] must necessarily” fit into the sentence-enhancing category; “[r]ather, the proper inquiry is whether the conduct encompassed by the elements of the offense [of conviction], in the ordinary case,” fit into the sentence-enhancing category.³Id. at 208, 127 S.Ct. 1586 (emphasis added).

Based solely on the language of § 708–820(1)(a) and the residual clause in § 4B1.2(a)(2), “intentionally damag[ing] property and thereby recklessly plac[ing] another person in danger of death or bodily injury,” Haw.Rev.Stat. § 708–820(1)(a) (1996), would seem, in the ordinary case, to “involve[ ] conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), regardless of Spencer's specific conduct in violating § 708–820(1)(a). But the Supreme Court's precedent dictates that the analysis is not so straightforward. The Court has interpreted the nearly identical residual clause of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), four times in recent years. See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (holding that knowing or intentional flight from law enforcement by vehicle under Indiana law is a violent felony under ACCA); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (holding that failure to report to prison under Illinois law is not a violent felony under ACCA); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (holding that driving under the influence of alcohol under New Mexico law is not a violent felony under ACCA); James, 550 U.S. at 209, 127 S.Ct. 1586 (holding that attempted burglary under Florida law is a violent felony under ACCA). These opinions make clear that interpretation of ACCA's residual clause must be guided not only by the language of the residual clause itself, but also by the offenses enumerated in ACCA's “violent felony” definition just before the residual clause. See Sykes, 131 S.Ct. at 2273;Chambers, 555 U.S. at 127–29, 129 S.Ct. 687;Begay, 553 U.S. at 142–44, 128 S.Ct. 1581;James, 550 U.S. at 203, 127 S.Ct. 1586. Since we make “no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s],” Crews, 621 F.3d at 852 n. 4;see also id. at 855–56, the enumerated offenses that precede the residual clause in the “crime of violence” definition in the Guidelines must guide our interpretation of the residual clause in § 4B1.2(a)(2) as well.

We set out the framework for analyzing whether a conviction under a state statute, such as § 708–820(1)(a), is a conviction for a “crime of violence” in United States v. Park, 649 F.3d 1175 (9th Cir.2011). For the conviction to constitute a conviction...