United States v. Darrel Duane Grisel

488 F.3d 844, 2007 U.S. App. LEXIS 13001, 2007 WL 1599009

Opinions

Opinion by Judge GRABER; Dissent by Judge BEA.

GRABER, Circuit Judge.

We took this case en banc primarily to reexamine the validity of United States v. Cunningham, 911 F.2d 361 (9th Cir.1990) (per curiam). In Cunningham, we held that second-degree burglary under Oregon law is a categorical burglary offense under the analysis required by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for purposes of applying the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e). Cunningham, 911 F.2d at 363. We now hold that Cunningham was wrongly decided and expressly overrule it.

Defendant Darrel Duane Grisel pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a district court must sentence a defendant who violates § 922(g) and who has three prior convictions for violent felonies or serious drug offenses to a mandatory minimum of 180 months’ imprisonment. 18 U.S.C. § 924(e)(1). The ACCA identifies “burglary” as a violent felony for purposes of the mandatory minimum enhancement. 18 U.S.C. § 924(e)(2)(B)(ii).

At Defendant’s sentencing hearing, the government submitted judgments of conviction and indictments or informations for seven second-degree burglaries under Oregon law, Or.Rev.Stat. § 164.215(1), to which Defendant had pleaded guilty. Pursuant to Cunningham, the district court séntenced Defendant to 180 months’ imprisonment. Defendant timely appealed, and we decided to hear the case en banc initially. See Fed. R.App. P. 35. We review de novo whether a prior conviction is a predicate felony under the ACCA. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997).

Antecedent to examining the substance of his prior convictions, Defendant argues that, procedurally, the government failed to satisfy the ACCA because it did not plead and prove beyond a reasonable doubt the sequence of his prior convictions. Essentially, his argument is twofold. First, Defendant urges that the doctrine of constitutional avoidance requires that we not apply the rule of Almendarez-Torres v. United States, 523 U.S. 224, 243^7, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity. Alternatively, Defendant argues that the date of an offense falls outside the prior-conviction exception. We are not persuaded by either part of his challenge.

Under the doctrine of constitutional avoidance, “[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916). “The doctrine seeks in part to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections.” Almendarez-Torres, 523 U.S. at 238, 118 S.Ct. 1219.

But the Supreme Court already has considered and decided the very constitutional questions that arise from judicial determination of prior convictions during sentencing. When the Court has decided expressly that a practice is constitutional, there are no “grave doubts” about its constitutionality. Almendarez-Torres never has been overruled. To the contrary, its rule has been stated and applied repeatedly by the Supreme Court. In Apprendi v. Neiv Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Edüd 435 (2000), the Court expressed some doubt about whether Almen-darez-Torres was correctly decided, but the Court still held that, tl[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Cunningham v. California, — U.S. -, 127 S.Ct. 856, 864, 868, 166 L.Ed.2d 856 (2007); and, most recently, James v. United States, — U.S. -, 127 S.Ct. 1586, 1600 n. 8, 167 L.Ed.2d 532 (2007).

Defendant points to Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in support of his constitutional avoidance argument. In Dretke, the Supreme Court tailored its holding in order to avoid a difficult constitutional issue— namely, reconsideration of Almendarez-Torres. Id. at 395-96, 124 S.Ct. 1847. We reject Defendant’s attempt to turn Dretke on its head by transforming the Court’s refusal to overturn or ignore Almendarez-Torres into support for our doing so. The doctrine of constitutional doubt does not trump the principle of stare decisis. “[I]f a precedent of th[e] [Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the ease which directly controls, leaving to th[e] Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 208, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (internal quotation marks omitted). The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.

In addition, we reject Defendant’s assertion that the dates of his prior convictions are not a part of the “fact” of his prior convictions. When, as here, the face of the document demonstrating Defendant’s prior conviction includes the date of the offense, the date is just as much a part of the plea as is the nature of the offense described on the face of the document.¹ Thus, the dates of Defendant’s prior convictions were properly before the district court. The question remains whether his prior convictions qualify as predicate felonies under the ACCA.

In Taylor, the Supreme Court established a method of analysis to determine whether a prior conviction is a predicate felony under the ACCA. Using a categorical approach, a court “look[s] only to the fact of conviction and the statutory definition of the prior offense” to determine whether the prior conviction necessarily satisfies 18 U.S.C. § 924(e). Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If the state statute defines the offense more broadly than the federal statute, encompassing crimes both listed and not listed in § 924(e), a court may “go beyond the mere fact of conviction in a narrow range of cases.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Under this modified categorical approach, a prior conviction established after a jury trial is a predicate felony “if the indictment or information and jury instructions show that the defendant was charged only with a[crime listed in § 924(e) ], and ... the jury necessarily had to find [the elements of the crime listed in § 924(e) ] to convict.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The Supreme Court later clarified that,

[i]n cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.

Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (citation omitted).

In addition to establishing the categorical and modified categorical approaches, Taylor defined burglary for purposes of the ACCA because Congress had deleted the statutory definition when it amended the ACCA in 1986. 495 U.S. at 581-82, 110 S.Ct. 2143; see also James, 127 S.Ct. at 1591 (discussing “the definition of burglary under ACCA that th[e Supreme] Court set forth in Taylor”). The Court in Taylor rejected the use of state statutory labels of crimes. The Court observed that “[t]he word ‘burglary’ has not been given a single accepted meaning by the state courts; the criminal codes of the States define burglary in many different ways,” Taylor, 495 U.S. at 580, 110 S.Ct. 2143, and concluded “that ‘burglary’ in § 924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes,” id. at 592, 110 S.Ct. 2143. The Court also rejected the common law definition of burglary. The Court reasoned that

[t]he arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns.... [Construing ‘burglary’ to mean common-law burglary would come close to nullifying that term’s effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.

Id. at 593-94, 110 S.Ct. 2143. Consequently, the Court chose “not [to] read into the statute a [common law] definition of ‘burglary’ so obviously ill suited to its purposes.” Id. at 594, 110 S.Ct. 2143.

Instead, the Court held that “a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143. In the original version of the ACCA, Congress had defined burglary “as any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense.” Id. at 581, 110 S.Ct. 2143 (internal quotation marks omitted). The Court’s generic definition thus was “practically identical to the 1984 definition [in the original version of the ACCA] that, in 1986, was omitted from the enhancement provision [in the amended version of the ACCA].” Id. at 598, 110 S.Ct. 2143.

One difference between the deleted 1984 statutory definition and the Court’s generic definition in Taylor was the substitution of the term “building or structure” for the term “building.” Careful analysis makes clear, however, that this difference was one of form, not substance. In using the term “building or structure,” the Court encapsulated the common understanding of the word “building” — a structure designed for occupancy that is intended for use in one place.²

The Court explained its choice of terminology by citing Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13 (1986), a treatise that surveys state and federal criminal codes. Taylor, 495 U.S. at 598, 110 S.Ct. 2143; see also James, 127 S.Ct. at 1604 (Scalia, J., dissenting) (“[In Taylor,] we concluded that Congress meant by burglary the generic sense in which the term is now used in the criminal codes of most States. To determine that sense, we looked for guidance to W. LaFave & A. Scott, Substantive Criminal Law (1986) and the American Law Institute’s Model Penal Code (1980).” (citation and internal quotation marks omitted)). Although the common law required “that the invaded structure be the dwelling house of another,” LaFave & Scott, supra, § 8.13(c), “modern statutes typically describe the place as a building or structure,” Taylor, 495 U.S. at 598, 110 S.Ct. 2143 (internal quotation marks omitted) (quoting LaFave & Scott, supra, § 8.13(c)). As reflected in the criminal codes of most states, “building or structure” does not encompass “other places, such as all or some types of vehicles,” including motor homes, and objects such as telephone booths. LaFave & Scott, supra, § 8.13(c) & nn.84-85. In other words, in the criminal codes of most states, the term “building or structure” does not encompass objects that could be described loosely as structures but that are either not designed for occupancy or not intended for use in one place. It was this understanding of “building or structure” that the Court adopted. See Taylor, 495 U.S. at 598, 110 S.Ct. 2143 (“We believe that Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States.”).

The Court further confirmed its adoption of the common understanding of the word “building” in its discussion of what would not qualify as generic burglary. The Court noted that a few states define burglary more broadly than generic burglary “by including places, such as automobiles and vending machines, other than buildings.” Id. at 599, 110 S.Ct. 2143 (emphasis added). As an example, the Court pointed to Missouri’s second-degree burglary statute, which defined burglary to include breaking and entering into a booth, tent, boat, vessel, or railroad car — objects that could be described loosely as structures but that are either not designed for occupancy or not intended for use in one place. Id.

The dissent argues that the policy aims of Congress would be better served by a broader definition of burglary. But Congress chose not to define burglary when it amended the ACCA. To fill in that gap, the Supreme Court in Taylor defined burglary using a generic definition that we are bound to obey even if we think that the definition is deficient. Notably, Congress has not inserted a legislative definition of burglary into the ACCA since Taylor. Policy arguments therefore are not pertinent to our decision.³

In Gonzales v. Duenas-Alvarez, — U.S. -, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), the Court clarified the scope of the categorical inquiry.

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Id. at 822.

In this case, Oregon defines second-degree burglary more broadly than the ACCA. The text of the statute expressly includes in its definition that which the Supreme Court expressly excluded from the generic, federal definition. Under Oregon law, “ ‘[b]uilding,’ in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.” Or.Rev.Stat. § 164.205(1) (emphases added). The Oregon legislature expressly recognized the ordinary, generic meaning of burglary and consciously defined second-degree burglary more broadly by extending the statute to non-buildings.⁴ Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no “legal imagination,” Duenas-Alvarez, 127 S.Ct. at 822, is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute’s greater breadth is evident from its text.

Oregon state courts have not narrowed this expansive definition — to the contrary, they have applied the statute just as broadly as its text allows. See James, 127 S.Ct. at 1594 (“But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary ....”); see also Duenas-Alvarez, 127 S.Ct. at 822 (asking whether “state courts in fact ... apply [a] statute in [a] special (nongeneric) manner”). In State v. Nollen, 196 Or.App. 141, 100 P.3d 788, 788-89 (2004), for example, the Oregon Court of Appeals upheld the application of Oregon’s second-degree burglary statute, Or.Rev. Stat. § 164.215(1), to an unlawful entry into a semi-truck trailer being used to collect charitable donations. In State v. Spencer, 24 Or.App. 385, 545 P.2d 611, 612 (1976), the Oregon Court of Appeals upheld the application of Oregon’s statutory definition of a building, as narrowed for purposes of first-degree burglary, see Or. Rev.Stat. § 164.205(2), to a fishing vessel. Trailers and boats are not buildings in the ordinary sense of the word — they are not constructed edifices intended for use in one place.⁵

In summary, second-degree burglary under Oregon law is not a categorical burglary for purposes of the ACCA because it encompasses crimes that fall outside the federal definition of generic burglary.⁶ We therefore overrule our contrary holding in Cunningham, 911 F.2d 361.⁷

Because Oregon’s second-degree burglary statute, Or.Rev.Stat. § 164.215, fails the categorical approach as to “burglary,” the final inquiry is whether Defendant’s prior convictions nevertheless satisfy the modified categorical approach.⁸ See Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The government must demonstrate that Defendant pleaded guilty to three or more generic burglaries, using “the statement of factual basis for [each] charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard, 544 U.S. at 20, 125 5.Ct. 1254 (citation omitted).

Dutifully applying Cunningham, the district court never reached the modified categorical inquiry, nor did the government have any reason to suspect that it would. That being so, we remand to the district court on an open record to allow it to perform the modified categorical inquiry in the first instance. See United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc) (“[A]s a general matter, if a district court errs in sentencing, we will remand for resentencing on an open record — that is, without limitation on the evidence that the district court may consider.”).

VACATED AND REMANDED.

1 . In so holding, we join the other circuits to have addressed the issue. See United States v. Harris, 447 F.3d 1300, 1303-05 (10th Cir.2006); United States v. Thompson, 421 F.3d 278, 285-86 (4th Cir.2005), cert. denied, 547 U.S. 1005, 126 S.Ct. 1463, 164 L.Ed.2d 250 (2006); United States v. Wilson, 406 F.3d 1074, 1075 (8th Cir.), cert. denied, - U.S. -, 126 S.Ct. 292, 163 L.Ed.2d 256 (2005); United States v. Burgin, 388 F.3d 177, 186 (6th Cir.2004); United States v. Morris, 293 F.3d 1010, 1012-13 (7th Cir.2002); United States v. Santiago, 268 F.3d 151, 156-57 (2d Cir.2001).

2 . Webster's Third New International Dictionary defines "building” as

a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.

Webster’s Third New International Dictionary Unabridged 292 (1993).

3 . A thoughtful examination of the congressional intent behind the ACCA actually supports the definition of "building or structure” that the Supreme Court devised in Taylor. The dissent relies on Congress’ belief in the inherently dangerous nature of burglary to argue for a broad definition that encompasses all structures "suitable for human occupation.” Dissent at 852. The dissent reasons that suitability for human occupation "involves an inherent risk of violence to persons." Dissent at 855. By focusing only on why Congress included burglary as a predicate offense in the ACCA, the dissent ignores what Congress actually included. The original version of the ACCA limited burglaries to “entering or remaining surreptitiously within a building," Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (emphasis added) (internal quotation marks omitted), and "there is nothing in the [legislative] fhistory to show that Congress intended in 1986 to replace the 1984 'generic' definition of burglary with something entirely different,” id. at 590, 110 S.Ct. 2143. The dissent omits a telling sentence when it quotes Taylor's review of the ACCA’s legislative history:

Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense ... because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.

Id. at 588, 110 S.Ct. 2143 (emphasis added). Contra dissent at 852 (omitting the second sentence).

Although a "risk of violence” motivated Congress to include burglary in the ACCA, neither Congress nor the Supreme Court included such a risk as an element in defining burglary. As the Court in Taylor noted, "Congress thought that certain general categories of property crimes — namely burglary, arson, extortion, and the use of explosives — so often presented a risk of injury to persons, ... that they should be included in the enhancement statute, even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person." 495 U.S. at 597, 110 S.Ct. 2143 (emphasis added).

4 . Indeed, the legislative design of the broad definition was to provide coverage for those " 'structures and vehicles which typically contain human beings for extended periods of time.’ ” State v. Scott, 38 Or.App. 465, 590 P.2d 743, 744 (1979) (emphasis added) (quoting Commentary, Proposed Oregon Criminal Code, § 135 p. 143 (1970)).

5 .The dissent emphasizes the fact that Oregon has limited its burglary statute to vehicles, booths, boats, and aircraft that are used for human habitation. Dissent at 6754-56. To the extent that our precedents suggest that state statutes satisfy the categorical inquiry when they define burglary to include non-buildings adapted for overnight accommodation, they are overruled. See United States v. Reina-Rodriguez, 468 F.3d 1147, 1156-57 (9th Cir.2006); United States v. Sparks, 265 F.3d 825, 834 (9th Cir.2001); United States v. Sweeten, 933 F.2d 765, 771 (9th Cir.1991). Those casus relied on the fact that such vehicles or boats effectively serve as dwellings and that “the burglary of a mobile home or camper [or houseboat] is often likely to pose a greater risk of violence to the occupant or owner than the burglary of a building or house because it is more difficult for the burglar to enter or escape unnoticed.” Sweeten, 933 F.2d at 771. Those cases, like the dissent today, failed to recognize that Taylor jettisoned analyzing the use of an object in favor of analyzing the nature of the object when it adopted an express definition of burglary that is limited to the breaking and entering of buildings and that does not include "risk of violence” as an element of the crime. Although a vehicle or boat that has been adapted for accommodation may qualify as a building in certain circumstances, it does not do so categorically. See Webster's Third New International Dictionary Unabridged 292 (1993) (distinguishing a building “from structures not intended for use in one place (as boats or trailers) even though subject to occupancy”).

6 . In coming to a contrary conclusion, Cunningham made the mistake of examining Oregon’s definition of second-degree burglary, 911 F.2d at 362 (quoting Or.Rev.Stat. § 164.215(1)), which tracks Taylor’s generic definition, without examining Oregon's unusual definition of a building, see id. at 363, which does not.

7 . We do not opine on whether it may have been proper to affirm the enhancement in Cunningham using the modified categorical approach. We overrule Cunningham only to the extent that it held second-degree burglary under Oregon law is categorically burglary for purposes of the mandatory minimum sentence under the ACCA.

8 . We do not reach the question whether, in view of James, 127 S.Ct. 1586, Oregon's second-degree burglary statute satisfies the categorical inquiry under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). Neither party raised the possible applicability of the residual clause, below or on appeal. On remand, the parlies are free to make any arguments that they deem appropriate. If a residual-clause argument is made, the district court can examine the viability and, if reached, the merits of the argument in the first instance.