United States v. Snyder

643 F.3d 694, 2011 U.S. App. LEXIS 13347, 2011 WL 2573587
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 30, 2011
Docket10-30148, 10-30149
StatusPublished
Cited by14 cases

This text of 643 F.3d 694 (United States v. Snyder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Snyder, 643 F.3d 694, 2011 U.S. App. LEXIS 13347, 2011 WL 2573587 (9th Cir. 2011).

Opinions

Opinion by Judge BEA; Concurrence by Judge TASHIMA.

OPINION

BEA, Circuit Judge:

Ryan Snyder pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He does not appeal his conviction.

At sentencing, the government requested a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), alleging Snyder had three prior convictions for violent felonies as defined in 18 U.S.C. § 924(e)(2):

(1) On or about October 23, 2003, in the Josephine County Circuit Court, State of Oregon, Case No. 02-CR-0791, for burglary in the second degree and assault in the second degree, with a 50-month sentence;
(2) On or about February 11, 2000, in the Josephine County Circuit Court, State of Oregon, Case No. 99-CR-0801, for burglary in the second degree, with a 6-month sentence;
(3) On or about May 9, 1999, in the Josephine County Circuit Court, State of Oregon, Case No. 99-CR-0362, for felony attempt to elude, with a 6-month sentence.

The district court held Snyder’s October 23, 2003 conviction for assault in the second degree was a predicate offense under ACCA. Neither party appeals that determination. We have previously held that assault in the second degree in Oregon is a violent felony for ACCA. United States v. Crews, 621 F.3d 849, 852-53 (9th Cir.2010).

The district court also held the February 11, 2000 conviction for burglary in the second degree under Oregon Revised Statutes (“ORS”) § 164.215 was a predicate offense under ACCA. Snyder appeals that determination.

Finally, the district court held the May 9, 1999 conviction for felony attempt to elude the police ORS § 811.540(1) was not a predicate offence under ACCA. The government cross-appeals that determination.

Having found only two predicate offenses, instead of three as required for a sentencing enhancement under ACCA, the district court did not apply the mandatory minimum sentence of 15 years (180 months) in 18 U.S.C. § 924(e)(2), and instead sentenced Snyder to the bottom of the Guidelines’ Range — 110 months.1

We review a district court’s decision as to whether a prior conviction is a predicate felony under ACCA de novo. United States v. Mayer, 560 F.3d 948, 956 (9th Cir.2009). We affirm in part and reverse in part.

A. ACCA

ACCA defines a “violent felony” as any crime “punishable by imprisonment for a term exceeding one year” that:

[697]*697(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). The italicized portion is known as ACCA’s “residual clause.”

B. Although burglary in the second degree under ORS § 164.215 is not categorically a violent felony under ACCA, Snyder’s conviction is a violent felony under the modified categorical approach.

We have already determined that burglary in the second degree under Oregon law “is not a categorical burglary for purposes of ACCA because it encompasses crimes that fall outside the federal definition of generic burglary.” United States v. Grisel, 488 F.3d 844, 851 (9th Cir.2007) (en banc).

Under the modified categorical approach, however, the original indictment together with the judgment of conviction proved Snyder necessarily admitted to facts constituting generic burglary. See Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Because the facts admitted constitute generic burglary, that alone is enough for it to be a predicate crime under ACCA. Congress decided that certain crimes were inherently violent (“burglary, arson, or extortion, involves use of explosives”), and thus there is no need to also prove the conduct otherwise presented “a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).

The indictment to which Snyder pleaded no contest in 2000 charged:

COUNT 3 (ORS 164.215 C-FEL) The defendant, on or about September 15, to September 16, 1999, in Josephine County, Oregon, did unlawfully and knowingly enter and remain in a building located at 1341 Rogue River Highway, (Friendly Motors) with the intent to commit the crime of theft therein.

The judgment of conviction stated Snyder pleaded no contest to Count 3.

The federal generic definition of “burglary” under 18 U.S.C. § 924(e)(2)(B)(ii) is an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “[A]n offense constitutes ‘burglary’ for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” Id. at 602, 110 S.Ct. 2143. Note that under the generic definition, the defendant needs only to enter or remain within a “building” not a home. This is because it is the mere “possibility of a violent confrontation” that makes burglary and attempted burglary violent felonies. Id. at 588, 597,110 S.Ct. 2143.

Snyder makes two arguments as to why the district court erred in finding that his burglary conviction was a predicate offense under ACCA. First, he says that because he pleaded no contest to the above indictment, he has not pleaded guilty to all facts required to constitute generic burglary. Yet both the Supreme Court and this court have already held that convictions based on “no contest” pleas may establish ACCA predicate offenses under Taylor. Shepard v. United States, 544 U.S. 13, 19, 125 S.Ct.

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Bluebook (online)
643 F.3d 694, 2011 U.S. App. LEXIS 13347, 2011 WL 2573587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-snyder-ca9-2011.