USA. v. Kaluna

• Citation: 192 F.3d 1188
• Decision Date: 25 March 1999
• Docket Number: No. 96-10527,96-10527
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRYAN K. KALUNA, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1188

192 F.3d 1188 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRYAN K. KALUNA, Defendant-Appellant.

No. 96-10527

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 3, 1997

Decided August 3, 1998

Rehearing En Banc Granted and Opinion Withdrawn December 4, 1998

Argued and Submitted March 25, 1999--Pasadena, California

Filed September 30, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Alexander Silvert, First Assistant Federal Defender, Honolulu, Hawaii, for the defendant-appellant.

David S. Kris, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CR-95-919-HG

Before: Procter Hug, Jr., Chief Judge, and James R. Browning, Mary M. Schroeder, Harry Pregerson, Pamela Ann Rymer, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas, Susan P. Graber, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Graber;Dissent by Judge Thomas

GRABER, Circuit Judge:

In this case of first impression for the Ninth Circuit, we reject several constitutional challenges to the federal "three strikes law," 18 U.S.C. S 3559(c). We therefore affirm the sentence of life imprisonment that the district court imposed.

FACTUAL AND PROCEDURAL BACKGROUND

For present purposes, the relevant facts are not disputed. The government indicted defendant Bryan K. Kaluna for the crimes of bank robbery and conspiracy to commit bank robbery, in violation of 18 U.S.C. S 2113(a) and 18 U.S.C. S 371.

In an Amended Information and Notice, the government stated its intention to seek an enhanced penalty under the three-strikes law,¹ should Defendant be convicted. The Amended Information and Notice listed Defendant's prior felony convictions on which the government intended to rely. All involved robberies:

No. 78-01291-01 (United States) (International Savings and Loan);

No. 52405 (State of Hawaii) (Pioneer Bank);

No. 50282 (State of Hawaii) (Pex of Hawaii);

No. 50148 (State of Hawaii) (E.G. Marshal's);

No. 47685 (State of Hawaii) (Bill's Bakery); and

No. 85-1266 (State of Hawaii) (Pioneer Bank/ Honolulu Federal/Hawaii Thrift).

The parties stipulated that Defendant had been convicted of the crimes listed in the Amended Information and Notice.

A jury found Defendant guilty, as charged, of bank robbery and conspiracy to commit bank robbery. Defendant's coconspirator used a gun in the robbery and, the district court found, Defendant knew that he would. Defendant concedes that the present crimes of conviction are "serious violent felonies" within the meaning of the three-strikes law.

In the E.G. Marshal's case, Defendant had been convicted of robbery in the first degree. He concedes that this conviction counts as a "serious violent felony" under 18 U.S.C. S 3559(c)(2)(F)(i). See Haw. Rev. Stat. S 708-840(1) (providing that first-degree robbery involves the use or threatened use of force, while armed with a dangerous instrument, in the course of committing theft).

Defendant's other prior convictions were for robbery in the second degree. Under Hawaii law, a person commits robbery in the second degree if, in the course of committing a theft, the person (a) "uses force against the person of anyone present" with the intent of overcoming resistance, or (b) "threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of . . . property," or (c) "recklessly inflicts serious bodily injury upon another." Haw. Rev. Stat.S 708-841(1). That offense is punishable by a maximum term of imprisonment of 10 years. See Haw. Rev. Stat. S 706-660. Defendant thus concedes that second-degree robbery in Hawaii is a "serious violent felony" as defined in 18 U.S.C. S 3559(c)(2)(F)(ii).

Defendant testified during the trial on the present charges. He testified that he had threatened tellers with the use of a gun during each of the three prior bank robberies encompassed in No. 85-1266 (Pioneer Bank/Honolulu Federal/Hawaii Thrift). For example, regarding the Hawaii Thrift robbery, Defendant testified:

Q. Isn't it true that you were wearing a nylon stocking mask at that robbery?

A. Yes.

Q. And you put your hand inside of a brown paper bag?

A. Yes.

Q. What was the significance of putting your hand inside the brown paper bag?

A. To indicate that I had a gun.

Defendant testified similarly with respect to the Honolulu Federal and Pioneer Bank robberies. In each of the three instances, Defendant stated, he wore a stocking mask over his head and had his hand in an opaque bag "to act like I had a gun" so as to obtain property from the teller, although he denied actually having carried a gun during any of those three bank robberies.

With respect to the robbery of Bill's Bakery, the indictment charged Defendant with robbery in the first degree. However, Defendant pleaded guilty to the reduced charge of robbery in the second degree.

In the present case, the district court sentenced Defendant to the enhanced penalty of mandatory life imprisonment under the three-strikes law. In so doing, the court counted the present convictions as the third strike, the E.G. Marshal's firstdegree robbery conviction as the second strike, and the Bill's Bakery second-degree robbery conviction as the first strike. The court held that all three strikes qualified under 18 U.S.C. S 3559(c)(2)(F)(i). The court also held that Defendant had not demonstrated that the first strike was non qualifying under 18 U.S.C. S 3559(c)(3). Additionally, the court expressly concluded that all the other prior second-degree robbery convictions qualified as strikes under 18 U.S.C. S 3559(c)(2)(F)(ii). Finally, the court took notice of Defendant's trial testimony regarding the Pioneer Bank, Honolulu Federal, and Hawaii Thrift robberies encompassed by conviction No. 85-1266.

Defendant appealed. He first challenged his convictions in the present case. A panel of this court affirmed his convictions in an unpublished memorandum disposition. Defendant has not sought rehearing with respect to the affirmance of his convictions.

Defendant also challenged his sentence, arguing that the three-strikes law is unconstitutional in several respects that require the court to disregard the first of the purported strikes. A panel of this court, in a later-withdrawn opinion, concluded unanimously that the three-strikes law does not violate separation-of-powers principles, the Double Jeopardy Clause, the Ex Post Facto Clause, the Eighth Amendment, or the right to receive effective assistance of counsel. See United States v. Kaluna, 161 F.3d 1225 (9th Cir. 1998) (opinion withdrawn) (We incorporate the relevant portions of the withdrawn opinion and attach it as an Appendix to this opinion.). By a twoto-one majority, however, the panel held that the three-strikes law violated Defendant's due process rights. See id. at 1073-84 (Reinhardt, J., holding that the use of a firearm during a prior robbery constitutes an element, so that allocation of the burden of proof to a defendant violates the defendant's due process rights); id. at 1084-87 (Thomas, J., concurring on the ground that the "clear and convincing" level of proof that the statute allocates to a defendant violates due process); id. at 1087-88 (Leavy, J., dissenting from the holding that the statute violates due process).

The government petitioned for rehearing en banc, a request with which Defendant agreed. The court granted the petition for rehearing en banc and ordered that the panel's opinion be withdrawn. See United States v. Kaluna, 161 F.3d 1225 (9th Cir. 1998).

STANDARD OF REVIEW

We review de novo a district court's interpretation of a statute. See United States v. Hunter, 101 F.3d 82, 84 (9th Cir. 1996). We also review de novo a district court's determination that a statute is constitutional. See United States v. Kim, 94 F.3d 1247, 1249 (9th Cir. 1996).

THE THREE-STRIKES LAW

Some of Defendant's arguments require us to construe the three-strikes law. Title 18 U.S.C. S 3559(c)(1) provides:

Notwithstanding any other provision of law, a per-son who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if

(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of

(i) 2 or more serious violent felonies; or

(ii) one or more serious violent felonies and one or more serious drug offenses; and

(B) each serious violent felony or serious drug offense used as a basis for sentencing under this sub section, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.

In 18 U.S.C. S 3559(c)(2)(F), Congress defines the term "serious violent felony" for the purpose ofS 3559(c)(1) to mean

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of . . . robbery (as described in section 2111, 2113, or 2118); . . . or attempt, conspiracy, or solicitation to commit any of the above offenses; and

(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.]

Title 18 U.S.C. S 3559(c)(3)(A) provides in pertinent part:

Robbery . . . shall not serve as a basis for sentencing under this subsection [3559(c)] if the defendant establishes by clear and convincing evidence that

(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in...