US v. Coronado

• Decision Date: 03 May 2010
• Docket Number: No. 09-50154.,09-50154.
• Citation: 603 F.3d 706
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando Joseph CORONADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

603 F.3d 706

UNITED STATES of America, Plaintiff-Appellee, v. Armando Joseph CORONADO, Defendant-Appellant.

No. 09-50154.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2010.

Filed May 3, 2010.

Jennifer J. Uyeda, Los Angeles, CA, for the defendant-appellant.

Angela Sanneman, Los Angeles, CA, for the plaintiff-appellee.

Before: MARY M. SCHROEDER, RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges.

SCHROEDER, Judge:

Armando Joseph Coronado appeals the sixty-three month sentence he received following the entry of his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The sentence included a six level increase to Coronado's base offense level for a prior "crime of violence," pursuant to U.S. Sentencing Guideline § 2K2.1(a)(4)(A). The enhancement was imposed on account of Coronado's prior California state court conviction under California Penal Code section 246.3 for discharging a firearm in a grossly negligent manner.

The district court ruled that the California conviction was a crime of violence because the intentional discharge of a firearm fell within U.S. Sentencing Guideline § 4B1.2(a)'s residual clause, which encompasses "any offense ... that ... otherwise involves conduct that presents a serious potential risk of physical injury to another." The Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), guides our interpretation of the Sentencing Guideline at issue here because Begay considered an identical residual clause in the Armed Career Criminal Act ("ACCA"). The Court held the language contains an implied requirement of "purposeful, violent, and aggressive conduct." Id. at 144-45, 128 S.Ct. 1581. Negligent or reckless conduct does not qualify. The California statute in question penalizes conduct that is only grossly negligent. We therefore join other circuits in concluding that a conviction under a statute proscribing grossly negligent conduct, even though it involves an intentional and potentially dangerous act, is not a "crime of violence" within the meaning of U.S. Sentencing Guideline § 4B1.2(a). See, e.g., United States v. Woods, 576 F.3d 400 (7th Cir. 2009) (en banc).

DISCUSSION

In the district court, Coronado pled guilty to a one-count indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As part of his plea agreement, Coronado admitted that he had previously been convicted in California of discharging a firearm with gross negligence. At sentencing, the parties disputed whether that conviction was a crime of violence. The district court described the issue as "close," recognizing that it is one of first impression in this circuit. The district court considered Begay, but reasoned it did not control because it did not involve the same Sentencing Guideline at issue here. The district court went on to hold that even if Begay controlled, the California conviction differs from the DUI offense involved in Begay because the California conviction was for the intentional discharge of a weapon, and such conduct necessarily presents a likely cause of injury or death.

We review de novo the classification of a defendant's prior conviction for purposes of applying the Sentencing Guidelines. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005).

I.

We first consider whether the residual clause of the definition of a "crime of violence" in U.S. Sentencing Guideline § 4B1.2 is governed by Begay's analysis. The district court held it is not, because Begay was construing the language of the ACCA. The Sentencing Guidelines at § 2K2.1 establish an enhancement for a prior conviction that is a "crime of violence." That provision incorporates by reference the definition of "crime of violence" found at U.S. Sentencing Guideline § 4B1.2(a). U.S.S.G. § 2K2.1, cmt. n. 1. Under that provision, a "crime of violence" is:

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 a 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) (emphasis added). This court has referred to the first clause as the "element test," the second clause as the "enumerated offense approach," and the third clause as the "serious risk of injury test," United States v. Gomez-Leon, 545 F.3d 777, 787-88 (9th Cir.2008), or "residual clause," United States v. Snellenberger, 548 F.3d 699, 706 (9th Cir.2008). Only the residual clause, which broadens the definition of a "crime of violence" to include any offense that "otherwise involves conduct ...," is at issue here.

In Begay, the Supreme Court interpreted an identical residual clause in the ACCA. The ACCA defines "violent felony" as follows:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ...

18 U.S.C. § 924(e)(2)(B) (emphasis added).

There are various statutory and Guideline definitions of what constitutes a "crime of violence." See, e.g., 18 U.S.C. §§ 16, 924(c)(3); U.S.S.G. §§ 4B1.2, 2L1.2 cmt. n. 1(B)(iii). We have observed that these definitions are not always interchangeable. In Gomez-Leon we distinguished between a different Guideline definition of "crime of violence," pertaining to illegal reentry, and some statutory definitions. 545 F.3d at 786-87. Our discussion in Gomez-Leon led the district court to hold in this case that the Supreme Court's analysis in Begay, which interpreted the statutory residual clause in the ACCA, did not apply to the residual clause in U.S. Sentencing Guideline § 4B1.2 at issue here, even though the language is identical. Our observation in Gomez-Leon was not meant to suggest, however, that similar language can never mean the same thing in a Guideline that it means in a statute. Indeed, because the language of both the ACCA and the Guideline adopt the same "serious risk of injury" test, the analysis in Gomez-Leon suggests the definitions should be interpreted similarly. See id. at 786-90. The Begay analysis controls ours.

In holding that Begay's analysis applies in the context of U.S. Sentencing Guideline § 4B1.2, we are in agreement with every circuit that has had occasion to reach the issue. See United States v. Herrick, 545 F.3d 53, 58 (1st Cir.2008); United States v. Gray, 535 F.3d 128, 130-31 (2d Cir.2008); United States v. Roseboro, 551 F.3d 226, 229 n. 2 (4th Cir.2009) (abrogated on other grounds by United States v. Rivers, 595 F.3d 558, 560 (4th Cir.2010)); United States v. Mohr, 554 F.3d 604, 609 n. 4 (5th Cir.2009); United States v. Baker, 559 F.3d 443, 453 (6th Cir.2009); United States v. Spells, 537 F.3d 743, 754 (7th Cir.2008); United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008); United States v. Williams, 559 F.3d 1143, 1147-48 n. 7 (10th Cir.2009); United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008). Although not conceding the issue, the government does not seriously contest that our task is to apply the same analysis the Court applied in Begay to determine whether the defendant's prior conviction is a "crime of violence" under U.S. Sentencing Guideline § 4B1.2.

II.

We therefore next examine Begay and the standard it created. The issue before the Supreme Court in Begay was whether a New Mexico conviction for driving under the influence of alcohol fit within the residual clause of the ACCA. 553 U.S. at 139-40, 128 S.Ct. 1581. Like the residual clause here, ACCA provides that a "violent felony" includes any crime punishable by more than one year imprisonment that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).

The Court assumed that driving under the influence involved conduct that "presents a serious potential risk of physical injury to another." Begay, 553 U.S. at 141, 128 S.Ct. 1581. The Court focused, however, on the enumerated examples of conduct in the preceding clause that illustrated what the crime must be like, and referenced the enumerated examples of "burglary, arson, or extortion," or an offense involving the "use of explosives." Id. at 142, 128 S.Ct. 1581. The Court held that the crimes encompassed by the residual clause must be similar to the enumerated examples both "in kind as well as in degree of risk posed." Id. at 143, 128 S.Ct. 1581. The court characterized the enumerated examples as offenses involving "purposeful, violent, and aggressive conduct." Id. at 145, 128 S.Ct. 1581.

The Court then concluded in Begay that the DUI crime did not involve such conduct because the crime of driving under the influence did not share the "purposeful, violent, and aggressive" characteristics of the enumerated crimes. Id. at 144-48, 128 S.Ct. 1581. Accordingly, the DUI was not a violent felony under the ACCA, even though the Court recognized that the conduct created a serious risk of causing injury or death. Id. at 148, 128 S.Ct. 1581.

The question here therefore becomes whether a person convicted of negligent discharge of a firearm under California Penal Code section 246.3 necessarily engaged in conduct that was "purposeful, violent, and aggressive." See Begay, 553 U.S. at 145, 128 S.Ct. 1581; see also United States v. Christensen, 559 F.3d 1092, 1095 (...