United States v. Gerriell Talmore , 585 F. App'x 567 ( 2014 )

NOT FOR PUBLICATION
FILED
OCT 23 2014
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10650
Plaintiff - Appellee, D.C. No. 4:13-cr-00381-PJH-1
v.
MEMORANDUM*
GERRIELL ELLIOTT TALMORE, AKA
Gerriell Talmore,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 8, 2014
San Francisco, California
Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.**
Gerriell Elliott Talmore appeals from the district court’s judgment. He
challenges the 33-month sentence imposed by the district court on the ground that
his prior conviction for California first-degree burglary does not qualify as a
“crime of violence.” We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Talmore pled guilty in 2013 to violating 18 U.S.C. § 922(g)(1), which
prohibits convicted felons from carrying firearms and ammunition. He had
previously been convicted, inter alia, of first-degree burglary under Section 459 of
the California Penal Code. Relying on United States v. Park, 649 F.3d 1175 (9th
Cir. 2011), the district court held that Talmore’s prior conviction was for a “crime
of violence” under Section 4B1.2(a) of the U.S. Sentencing Guidelines, and on that
basis imposed a sentence enhancement.
Talmore argues that the Supreme Court’s decisions in Descamps v. United
States, 133 S. Ct. 2276 (2013), Alleyne v. United States, 133 S. Ct. 2151 (2013),
and Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), are “clearly irreconcilable” with
Park, and that Park therefore must be overruled. See Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). We disagree.
In Descamps, the Supreme Court held that California first-degree burglary is
not a “violent felony” for the purposes of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B), because the California statute criminalizes more conduct
than is encompassed by “generic” burglary. The Court specifically declined to
address whether the crime qualified as a violent felony under the ACCA’s
“residual clause” (which is, for present purposes, functionally identical to the
“residual clause” in Section 4B1.2(a)). Descamps, 133 S. Ct. at 2293 n.6. In Park,
we had held that California first-degree burglary qualifies as a “crime of violence”
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because it falls under Section 4B1.2(a)’s “residual clause.” Park, 649 F.3d at
1178. By its own terms, therefore, Descamps leaves Park’s holding undisturbed.
Alleyne and Moncrieffe are also not “clearly irreconcilable” with Park.
Alleyne held that facts that increase a mandatory minimum sentence must be found
by a jury beyond a reasonable doubt. See 133 S. Ct. at 2158. Moncrieffe held that
some convictions for drug distribution do not qualify as “aggravated felonies”
under the Immigration and Nationality Act. See 133 S. Ct. at 1693–94. Neither
case is “clearly irreconcilable” with Park.
Talmore also argues that newly available statistical evidence undermines
Park’s holding. Talmore’s statistical evidence, no matter how persuasive, does not
permit us, sitting as a three-judge panel, to revisit Park.
AFFIRMED.
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