United States v. Parry ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30522
Plaintiff-Appellee,
v.  D.C. No.
CR-04-60008-HO
RONALD LESTER PARRY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued July 25, 2006;
Resubmitted March 2, 2007—Portland, Oregon
Filed March 14, 2007
Before: Stephen Reinhardt and Susan P. Graber,
Circuit Judges, and Ronald S.W. Lew,* District Judge.
Opinion by Judge Graber
*The Honorable Ronald S.W. Lew, United States District Court for the
Central District of California, sitting by designation.
3103
UNITED STATES v. PARRY 3105
COUNSEL
William R. Sharp, Monks & Sharp, LLP, Eugene, Oregon, for
the defendant-appellant.
Frank R. Papagni, Jr., Assistant United States Attorney,
Eugene, Oregon, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Ronald Lester Parry was convicted of being a
felon in possession of a firearm after previously having been
convicted for three serious drug offenses, possessing metham-
phetamine with the intent to distribute it, and possessing a
3106 UNITED STATES v. PARRY
firearm in furtherance of a drug-trafficking crime. He appeals
his sentence on the ground that the district court erred by con-
cluding that three of his prior convictions were predicate
offenses under 18 U.S.C. § 924 of the Armed Career Criminal
Act of 1984 (“ACCA”).1 We hold that Defendant’s prior con-
victions were correctly characterized as “serious drug
offenses” under ACCA because Oregon “prescribe[s] by law”
a “maximum term of imprisonment” of 10 years or more for
delivery of methamphetamine. 18 U.S.C. § 924(e)(2)(A)(ii).
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2003, Defendant was driving his truck on an
Oregon highway. Suspecting from his manner of driving that
Defendant was under the influence of intoxicants and noticing
that Defendant’s front-seat passenger was not wearing a seat-
belt, a police officer signaled him to stop. As Defendant
pulled over to the side of the road, someone in the car threw
out of the passenger-side window a red pouch containing
methamphetamine, marijuana, hashish, small zip-lock bags, a
vial, and a syringe. Defendant was arrested. The police later
obtained a warrant to search the truck; in the subsequent
search the police found a handgun underneath the dashboard.
In October 2004, a grand jury issued a superseding indict-
ment against Defendant charging him with (1) being a felon
in possession of a firearm and having previously been con-
victed of three “serious drug offenses” in violation of 18
U.S.C. § 922(g)(1) and § 924(e); (2) possessing with intent to
distribute a Schedule II controlled substance, methamphet-
amine, in violation of 21 U.S.C. § 812(b)(2) & (c), Schedule
II(c), § 841(a) & (b)(1)(c), and § 851; and (3) possessing a
firearm in furtherance of a drug-trafficking crime in violation
1
Defendant also challenges his convictions and sentence on other
grounds. We have rejected those arguments in a memorandum disposition
filed this date.
UNITED STATES v. PARRY 3107
of 18 U.S.C. § 924(c)(1)(A)(i) & (c)(2) and § 921(a)(3). After
a three-day trial, a jury found Defendant guilty on all counts.
He was sentenced to a 360-month prison term, and he brings
this timely appeal.
DISCUSSION
[1] Under ACCA, a defendant is subject to a mandatory
minimum sentence of 15 years if the defendant has three or
more prior convictions that qualify as “serious drug offenses.”
18 U.S.C. § 924(e)(1). The statute defines a “serious drug
offense” as “an offense under State law, involving manufac-
turing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance . . . for which a maximum
term of imprisonment of ten years or more is prescribed by
law.” Id. § 924(e)(2)(A)(ii).
Defendant has been convicted of three drug-related
offenses. In February 2001, he pleaded guilty to two counts
of Unlawful Delivery of a Schedule II Controlled Substance
—methamphetamine; the charged conduct took place on two
separate days. In May 1996, he pleaded guilty to Unlawful
Manufacture of a Schedule I Controlled Substance—
marijuana.
Defendant acknowledges that his prior conviction for man-
ufacture of marijuana is a “serious drug offense.” Indeed, a
conviction for manufacture of marijuana, under Oregon law,
is a Class A felony. Or. Rev. Stat. § 475.840(1)(a). For a
Class A felony, the maximum sentence allowed by law is 20
years. Or. Rev. Stat. § 161.605(1). The only convictions that
are at issue are for delivery of methamphetamine.
Although Defendant concedes that those crimes involve
distributing a controlled substance, as required under ACCA,
he claims that they do not qualify as “serious drug offenses”
because, under the Oregon Sentencing Guidelines, they are
3108 UNITED STATES v. PARRY
not punishable by “a maximum term of ten years or more” as
“prescribed by law.”2 That argument is unavailing.
[2] Both of Defendant’s convictions for methamphetamine
delivery, under Oregon law, are Class B felonies. Or. Rev.
Stat. § 475.840(1)(b). Oregon Revised Statute § 161.605(2)
provides that a Class B felony carries a maximum prison sen-
tence of 10 years.
But, Defendant argues, under the Oregon Sentencing
Guidelines, no defendant could ever be sentenced to 10 years
in prison for delivery or manufacture of a Schedule II con-
trolled substance—including methamphetamine—regardless
of his criminal history, and notwithstanding the crime’s desig-
nation as a Class B felony. Instead, the maximum sentence for
that crime under the guidelines is 90 months. Defendant con-
tends that the sentence provided for by the Oregon Sentencing
Guidelines must take precedence over the maximum sentence
prescribed by state statute. He reasons that the sentencing
guidelines control for three reasons: (1) the Oregon Supreme
Court has noted that the state’s sentencing guidelines have
“the authority of statutory law,” State v. Dilts, 103 P.3d 95,
99 n.6 (Or. 2004); (2) the legislature has enacted a statute pro-
viding that the sentencing guidelines determine a defendant’s
prison time, Or. Rev. Stat. § 137.669, which supersedes or
repeals § 161.605 by implication; and (3) the sentencing
guidelines are more specific than § 161.605, and should gov-
ern if there is a conflict. Thus, he concludes, his convictions
for delivery of methamphetamine are not punishable by a sen-
tence of 10 years or more and so do not qualify as predicate
offenses under ACCA.
[3] We reject Defendant’s construct because it does not
2
We review de novo a district court’s determination that a prior convic-
tion constitutes a predicate offense under 18 U.S.C. § 924 of ACCA.
United States v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004), cert. denied,
543 U.S. 1170 (2005).
UNITED STATES v. PARRY 3109
take into account the explicit interplay between the state sen-
tencing guidelines and the state statute setting maximum
terms. There is no conflict in the state law. The “maximum
term . . . prescribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii), for
delivery of methamphetamine is 10 years, as established in
Oregon Revised Statute § 161.605. That section, entitled
“Maximum terms of imprisonment; felonies,” goes on to
specify the maximum sentences allowed by law for Class A,
B, and C felonies. Or. Rev. Stat. § 161.605. The statute estab-
lishing that the sentencing guidelines govern the amount of
time actually spent in prison is entitled “Sentencing guidelines
control.” It explains that the guidelines constitute the “pre-
sumptive sentence[ ],” not the maximum sentence. Or. Rev.
Stat. § 137.669 (emphasis added). The guidelines themselves
recognize and incorporate the statutory maxima. Oregon
Administrative Rule § 213-008-0003(2) states that “[a] dura-
tional departure from a presumptive prison term shall not total
more than double the maximum duration of the presumptive
prison term. In no case may the sentence exceed the statutory
maximum indeterminate sentence described in ORS 161.605.”
(Emphasis added.) Oregon Administrative Rule § 213-005-
0002(4) provides that a defendant’s term of post-prison super-
vision, when added to the prison term, cannot exceed the stat-
utory maximum sentence.
[4] We also note that the state courts, when considering
whether a sentence exceeds the lawful maximum, examine
Oregon Revised Statute § 161.605, not the sentencing guide-
lines. For example, in State v. Angell, 113 P.3d 988, 989 (Or.
Ct. App. 2005), the court held that the sentence was unlawful
because it exceeded the outer limit of § 161.605, not because
it exceeded the sentencing guidelines. To the same effect, see
State v. Stalder, 133 P.3d 920, 922-23 (Or. Ct. App. 2006).
These cases demonstrate that the sentencing guidelines have
not implicitly repealed the statutory maximum sentence stat-
ute, § 161.605. Repeals by implication are disfavored “and
must be established by plain, unavoidable, and irreconcilable
3110 UNITED STATES v. PARRY
repugnancy.” State v. Langdon, 999 P.2d 1127, 1132 (Or.
2000) (internal quotation marks omitted).
No such “irreconcilable repugnancy” exists here; to the
contrary, there is a connection between § 161.605 and the sen-
tencing guidelines that preserves the continued viability of
§ 161.605. Nothing in Oregon Revised Statutes chapter 137,
which governs the Oregon Criminal Justice Commission and
the sentencing guidelines, prevents a presumptive guideline
from being increased all the way to the statutory maximum
(or to half that amount, which can be doubled), without any
accompanying legislative change to § 161.605. If the legisla-
ture wanted to increase the sentence for a crime beyond the
maximum prescribed in § 161.605, however, it would have to
either amend § 161.605 itself, to provide for a greater maxi-
mum sentence for the type of felony at issue, or it would have
to amend the statute that criminalizes the conduct and reclas-
sify the crime as a more serious type of felony (for example,
change a conviction for delivery of methamphetamine from a
Class B to a Class A felony).
Our conclusion is consistent not only with the Oregon stat-
utes and regulations, but also with United States v. Murillo,
422 F.3d 1152 (9th Cir. 2005), cert. denied, 126 S. Ct. 1928(2006). There, we considered an argument much like the one
that Defendant raises here. The defendant in Murillo was con-
victed of being a felon in possession of a firearm under 18
U.S.C. § 922(g)(1). We had to decide whether his prior state
convictions constituted felonies, which were defined as
“crime[s] punishable by imprisonment for a term exceeding
one year.” Id. at 1153. The Murillo case originated in the
State of Washington, which has a guidelines regime similar to
Oregon’s. Murillo argued that his prior crimes were not felo-
nies because, under the Washington Sentencing Guidelines,
he could not have received a maximum sentence of one year
and, in fact, he was sentenced to a term of only 10 months.
We rejected that argument, holding:
UNITED STATES v. PARRY 3111
Here, we hold that Blakely [v. Washington, 542 U.S.
296 (2004),] did not change the definition of what
constitutes a maximum sentence under state law for
purposes of prosecution under 18 U.S.C.
§ 922(g)(1): the maximum sentence is the statutory
maximum sentence for the offense, not the maximum
sentence available in the particular case under the
sentencing guidelines.
Id. at 1154 (emphasis added).
[5] It is true that 18 U.S.C. § 922(g) requires that the predi-
cate offense be “punishable by imprisonment for a term
exceeding one year,” while ACCA requires, for a “serious
drug offense,” a “maximum term of imprisonment of ten
years or more” as “prescribed by law,” 18 U.S.C.
§ 924(e)(2)(A)(ii) (emphasis added). Although the phrasing
differs slightly, we conclude that neither formulation suggests
that we look to sentencing guidelines to the exclusion of the
statutes. If anything, “punishable” would appear to point more
specifically to time spent in prison, while “prescribed by law”
would appear to point more to the statute. If the former phrase
requires that we use the statutory maximum, a fortiori, the lat-
ter phrase does too.
[6] For these reasons, we hold that all three of Defendant’s
prior drug-related convictions constituted “serious drug
offenses” under ACCA.
AFFIRMED.