United States v. Delaney ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50128
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00080-MMM
DANIEL LUIS DELANEY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted October 17, 2005*
Pasadena, California
Filed November 7, 2005
Before: Procter Hug, Jr., Harry Pregerson, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Pregerson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
15201
UNITED STATES v. DELANEY 15203
COUNSEL
Benjamin N. Gluck, Bird, Marella, Boxer, Wolpert, Nessim,
Drooks & Lincenberg, Los Angeles, California, for the
defendant-appellant.
Matthew D. Umhofer, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
On March 31, 2003, Defendant Daniel Luis Delaney
robbed a branch of the Wells Fargo Bank in Anaheim Hills,
California. On June 19, 2003, Delaney was convicted of bank
robbery in violation of 18 U.S.C. § 2113(a). The Probation
Office’s Presentence Report recommended that Delaney be
sentenced as a “career offender” under U.S.S.G. § 4B1.1(a)1
because (1) he was at least eighteen years old at the time he
committed the robbery; (2) the robbery conviction constituted
a crime of violence; and (3) he had two prior convictions for
1
United States Sentencing Guidelines classify a defendant as a “career
offender” if:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
USSG § 4B1.1(a).
15204 UNITED STATES v. DELANEY
crimes of violence. The district court adopted the Presentence
Report’s conclusion that Delaney was a career offender
because he had two prior felony convictions for crimes of vio-
lence, one for bank robbery in violation of 18 U.S.C.
§ 2113(a) and one for possession of a short-barreled shotgun
in violation of California Penal Code section 12020(a).
Delaney, however, contends that his conviction for possession
of a short-barreled shotgun is not a “crime of violence” for
purposes of § 4B1.1.
We review de novo the district court’s interpretation of the
United States Sentencing Guidelines and its designation of
career offender status under U.S.S.G. § 4B1.1. See United
States v. Kelly, 422 F.3d 889, 891-92 (9th Cir. 2005). For the
following reasons, we affirm the district court’s determination
that Delaney is a career offender.
[1] We use the “categorical approach” to determine
whether Delaney’s predicate conviction for possession of a
short-barreled shotgun is a crime of violence. See United
States v. Fish, 368 F.3d 1200, 1202 (9th Cir. 2004). Under
this approach, we need not look to the specific conduct that
formed the basis of the defendant’s convictions, but only to
the statutory definition of the crime. See Taylor v. United
States, 495 U.S. 575, 602 (1990). The California statute under
which Delaney was convicted criminalizes “possess[ion of]
. . . any short-barreled shotgun . . . .” Cal. Pen. Code
§ 12020(a)(1).
[2] To constitute a crime of violence under the Guidelines,
Delaney’s offense must be one that “involves conduct that
presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(1)(2). We have recognized that possession
of an unregistered sawed-off shotgun is a crime of violence
for purposes of the career offender provisions of the Guide-
lines. See United States v. Hayes, 7 F.3d 144 (9th Cir. 1993).
In Hayes, we reasoned that “sawed-off shotguns are inher-
ently dangerous, lack usefulness except for violent and crimi-
UNITED STATES v. DELANEY 15205
nal purposes and their possession involves the substantial risk
of improper physical force.” Id. at 145. This brings Delaney’s
offense within the purview of § 4B1.1.
Delaney seeks to distinguish Hayes because the offense at
issue there involved an unregistered sawed-off shotgun. This
argument fails. Our decision in Hayes did not turn on whether
the gun was registered but rather on the dangerous nature of
the weapon.3 A sawed-off shotgun, registered or not, “pre-
sents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(1)(2); see also United States v. Huffhines,
967 F.2d 314, 320-21 (9th Cir. 1992) (holding that the unlaw-
ful possession of a silencer presents such a risk and thus is a
crime of violence).
Delaney also asserts that the district court erred in deeming
him a “career offender” because the enhancement is based, in
part, on two prior convictions that were not proved beyond a
reasonable doubt to a jury. We reject this argument because
the Supreme Court has made clear that the fact of a prior con-
viction need not be proved to a jury beyond a reasonable
doubt or admitted by the defendant to satisfy the Sixth
Amendment even when such a finding results in an increase
in the penalty beyond what would otherwise be the maximum
prescribed sentence. See United States v. Booker, 125 S. Ct.
738, 748-49 (2005).
Finally, Delaney contends that the district court erred by
applying two additional sentence enhancements (robbery of a
financial institution pursuant to U.S.S.G. § 2B3.1(b)(1), and
commission of an offense while on escape status pursuant to
3
The Guidelines specifically provide that the term “ ‘[c]rime of vio-
lence’ does not include the offense of unlawful possession of a firearm by
a felon.” USSG § 4B1.2 cmt. n.1. Our precedent is clear, however, that
this provision does not exempt possession of weapons that are “inherently
dangerous and lacking in lawful purposes” and therefore constitute a crime
of violence. See Hayes, 7 F.3d at 145; Huffhines, 967 F.2d 314, at 320.
15206 UNITED STATES v. DELANEY
U.S.S.G. § 4A1.1(e)) based on extra-verdict findings not
proved to a jury beyond a reasonable doubt. This argument
also fails. The district court did not apply either sentence
enhancement. Rather, the district court applied the higher total
offense level warranted by Delaney’s career offender status,
see U.S.S.G. § 4B1.1(b) (“[I]f the offense level for a career
offender from the table in this subsection is greater than the
offense level otherwise applicable, the offense level from the
table in this subsection shall apply”) which was higher than
the combined sentence enhancements.
[3] Because Delaney was sentenced under the then-
mandatory Sentencing Guidelines, and it is not clear from the
record whether the sentence imposed would have been materi-
ally different had the district court known that the Guidelines
were advisory, we remand this case to the sentencing court to
answer that question. See United States v. Moreno-
Hernandez, 419 F.3d 906, 916 (9th Cir. 2005).
REMANDED.