US v. Alderman

• Citation: 601 F.3d 949
• Decision Date: 15 April 2010
• Docket Number: No. 08-30322.,08-30322.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sylvester J. ALDERMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

601 F.3d 949

UNITED STATES of America, Plaintiff-Appellee, v. Sylvester J. ALDERMAN, Defendant-Appellant.

No. 08-30322.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2009.

Filed April 15, 2010.

Ralph Hurvitz, Seattle, WA, for the appellant.

Michael S. Morgan, Assistant United States Attorney, Seattle, WA, for the appellee.

Before DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges.

KLEINFELD, Circuit Judge:

This is a sentence appeal, with two issues. We hold that the first degree theft crime under Washington law of which Alderman was convicted is a "crime of violence" for purposes of the guidelines enhancement, and that the shooting in this case was an assault under Washington law.

Facts.

The district court and we have watched Alderman commit the crime on television. The events were recorded by a surveillance camera aimed at the Seattle apartment complex parking lot where they occurred. A man named Roosevelt Montgomery drove up and parked, approached Alderman, and they talked. Then Montgomery began punching Alderman. He got Alderman on the ground and landed numerous punches and a few kicks, while a woman apparently with Montgomery rifled Alderman's pockets. Then the beating ended, and Alderman backed away, hitching up his pants.

Alderman then drew a gun and started shooting toward Montgomery. The tables being turned by the gun, Alderman now chased Montgomery around Montgomery's car, shooting at him, as Montgomery tried to get into his car and drive away. Alderman fired eight shots at Montgomery as he chased him around his car and another car, then left, firing one additional parting shot. He never hit Montgomery, and Montgomery drove off. Montgomery later told police that he was grazed by one bullet, but he did not seek medical attention.

Alderman was a convicted felon, and the Glock nine millimeter pistol he had used to shoot at Montgomery was easily tied to him. He confessed and pleaded guilty to being a felon in possession.¹ In the plea agreement, he admitted that he had previously been convicted of second degree robbery and, in another case, first degree theft.

His guidelines calculation was adjusted upward for the prior felonies, on the theory that they were "crimes of violence."² An additional upward adjustment in his offense level was imposed on the theory that he had used the unlawfully possessed pistol "in connection with another felony," shooting at Montgomery.

Alderman argues that his prior theft conviction could not properly be counted as a "crime of violence" under the guidelines, and that shooting at Montgomery could not properly be deemed a felony.

Analysis.

We review the district court's interpretation of the U.S. Sentencing Guidelines de novo,³ the district court's factual findings for clear error, and the district court's application of the Guidelines to the facts for abuse of discretion.⁴

Alderman's Washington judgment says that he was convicted in 2005 of "theft in the first degree." The information alleged that he and Bobby Barnard Beasley assaulted a man and took his car "from the person" of the victim. The police report said that he and Beasley stuck a gun in a man's face as the victim was driving away from a Kentucky Fried Chicken, told him he was being robbed, and ripped a necklace off the victim's neck. The victim escaped as Alderman and Beasley drove off in the victim's car. Our question is whether the crime defined by the state statute is "categorically"⁵ a crime of violence.

As Alderman concedes, we held in United States v. Jennings⁶ that the relevant portion of Washington first degree theft was indeed a "violent felony" under the Armed Career Criminal Act.⁷ The Armed Career Criminal Act uses the same definition for "violent felony" as the Guidelines do for "crime of violence."⁸Jennings applies our holding and reasoning in United States v. Wofford.⁹ Alderman argues that Jennings and Wofford are no longer good law, because the Supreme Court in Begay v. United States¹⁰ narrowed the construction of "violent felony" in a way that excludes Washington first degree theft from the "crime of violence" category.

Wofford, another felon in possession case, did a categorical analysis of grand theft from a person under California law.¹¹ We held that California grand theft from a person was categorically a "violent felony" under the Armed Career Criminal Act because it required direct physical contact between the perpetrator and the victim, thereby creating a serious potential risk of physical injury to another.¹² We held that California grand theft from a person fell within the "otherwise" clause of the subsection of the "violent felony" definition:¹³ "burglary, arson, or extortion, involved the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."¹⁴ The risk of physical injury arose because the victim might resist or a bystander intervene and a struggle ensue.¹⁵

Jennings, the Washington case, also involved a sentencing enhancement on a federal felon in possession conviction.¹⁶ We held that the same conviction as Alderman's under the identical statute was categorically a "violent felony" under the Armed Career Criminal Act.¹⁷ We held that Wofford controlled.¹⁸

The government argues that we should review only for plain error, under Rule 52 and United States v. Olano,¹⁹ because Alderman did not argue before the district court that Begay undermined Wofford and Jennings. Our analysis is unaffected by the different standard applicable to plain error, because we conclude that there would be no error even if Alderman had argued from Begay. Begay leaves the Wofford-Jennings holdings in force.

In Begay, the prior conviction was for drunk driving. The question was whether felony driving under the influence under New Mexico law was a "violent felony" under the Armed Career Criminal Act.²⁰ The Court held that it was not.²¹ The reason was that drunk driving was too dissimilar to the listed crimes—burglary, arson, extortion, and explosives crimes—to fall within the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause.

In our view, the provision's listed examples—burglary, arson, extortion, or crimes involving the use of explosives— illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that "presents a serious potential risk of physical injury to another."²²

The Court applied a straightforward ejusdem generis analysis, requiring that "otherwise" crimes be "roughly similar, in kind as well as in degree of risk involved" to the listed crimes.²³ The listed crimes "typically involve purposeful, violent and aggressive conduct," while drunk driving, though creating great risk to others, typically does not.²⁴ The listed crimes "also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger,"²⁵ while drunk driving does not.

Likewise, in Chambers v. United States the Court held that criminal "failure to report" for penal confinement was not a violent felony for purposes of the Armed Career Criminal Act.²⁶ The crime was malum prohibitum, not malum in se. The Court noted that "the crime amounts to a form of inaction," unlike the enumerated offenses in the statute.²⁷ Not showing up is unlikely to be "purposeful, violent, and aggressive" or to indicate "an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger."²⁸

First degree theft under the pertinent Washington statute required, when Alderman committed it, a personal, physical encounter between thief and victim. The property had to be "taken from the person" of the victim, not just from his car or his house or business:

(1) A person is guilty of theft in the first degree if he or she commits theft of:

. . .

(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.

(2) Theft in the first degree is a class B felony.²⁹

This relevant aspect of Washington first degree theft is similar enough for ejusdem generis purposes to the listed crimes, "burglary, arson, or extortion, or a crime that involves use of explosives." Like burglary, indeed probably more than most burglaries, theft from the person is a purposeful aggressive act directed toward a person who, unless he submits, invites violence from the criminal. The thief has to be aggressive enough to intimidate the victim into submission or hopeful that despite personal contact the victim will not realize his possession was stolen until it is too late to resist. An offender bold and aggressive enough to steal from the person of another shows a greatly increased likelihood, compared to a drunk driver, that he is "the kind of person who might deliberately point the gun and pull the trigger."³⁰

"Purposeful, violent and aggressive"³¹ conduct cannot mean that violence has to occur, because burglary, which is listed, does not require commission of a violent act or an intent to commit violence. The burglar may hope that the house is empty, an arsonist may hope that the building is empty, and an extortionist may hope that the victim just pays the money without resistance, but they cannot count on peaceful submission from the victim and have to be aggressive enough to be prepared for violent resistance. Where force is actually used or threatened, the crime falls under the first subsection of the guideline,³² not the subsection which includes the "otherwise" clause covering burglary of a dwelling, etc. Because the first subsection would be superfluous if the "otherwise" clause in the second subsection required actual violence, the "otherwise" clause cannot be construed to require actual violence.³³

We held in United States v. Christensen³⁴...