United States v. Crampton ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30219
Plaintiff-Appellee,
v.  D.C. No.
CR-04-60016-MRH
GREGG LEON CRAMPTON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, Chief District Judge, Presiding
Argued and Submitted
February 8, 2007—Portland, Oregon
Filed December 20, 2007
Before: David R. Thompson, Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Kleinfeld
16555
UNITED STATES v. CRAMPTON 16557
COUNSEL
Richard L. Fredericks, P.C., Eugene, Oregon, for the appel-
lant.
Frank R. Papagni, Jr., Assistant U.S. Attorney, Eugene, Ore-
gon, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
We construe aspects of the law criminalizing possession of
firearms by felons and the Armed Career Criminal Act.
FACTS
Gregg Crampton was driving his niece and her three-year-
old daughter around as he made a methamphetamine delivery.
He realized his probation officer had seen him, so he sped
away and told his niece to throw the methamphetamine and
needles they had out of the window. She refused, so he
pointed his gun at her, threatened her, and told her to get out
of the car. She pointed out that the car was going too fast, so
he slowed down and pushed her and her three-year-old out of
the car. The trooper chasing Crampton could not catch him,
but later that day, the police found the car on a forest service
road, with an empty gun case and a box of twenty-four .357
cartridges.
16558 UNITED STATES v. CRAMPTON
The next day Crampton called his niece and threatened her.
Fearing that he might visit, she called the police. The police
got a warrant and arrested him at his house the day after that,
and found another sixteen rounds of .357 ammunition in his
pants pocket.
Crampton was indicted for two counts of being a felon in
possession of firearms, one for the day of the high speed
chase and one for the day he was arrested.1 The indictment
stated four prior felonies that would make Crampton eligible
for enhanced punishment under the Armed Career Criminal
Act.2 Three were drug crimes, and one was possession of a
sawed-off shotgun. He made unsuccessful pretrial motions,
which preserved the issues we discuss below, pleaded guilty
to both counts, and was sentenced to serve fifteen years in
prison.
ANALYSIS
Crampton raises four issues in his well-briefed appeal, all
matters of law that we review de novo.3
1
“Crampton, having been previously convicted of . . . felony crimes
punishable by imprisonment for a term exceeding one year . . . did know-
ingly possess one or more rounds of ammunition . . . in violation of Title
18, United States Code, Sections 922(g)(1); 924(e).” (Indictment 3-4).
2
18 U.S.C. § 924(e)(1) (“In the case of a person who violates section
922(g) of this title and has three previous convictions by any court referred
to in section 922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).”).
3
See United States v. Smith, 390 F.3d 661, 663 (9th Cir. 2004) (“We
review de novo whether a conviction is a predicate felony for purposes of
the ACCA.”); id. (“We also review de novo whether the district court vio-
lated the constitutional rule articulated in Apprendi.”); United States v.
Enslin, 327 F.3d 788, 793 (9th Cir. 2003) (“[w]e review sufficiency of
[an] indictment de novo”).
UNITED STATES v. CRAMPTON 16559
A. The Indictment
[1] Crampton argues that the indictment did not state an
offense, because under Oregon law (the state of all four of his
convictions) he was permitted to possess ammunition. Though
he was indicted under federal law, there is a complicated
interplay between federal and state law regarding felons pos-
sessing firearms.4 We laid out what amounts to a flowchart of
the interplay in United States v. Valerio:5
When a court must determine whether a state con-
viction has been invalidated for purposes of the fed-
eral felon in possession statute, the federal statute
requires the court to proceed along this path:
1. Use state law to determine whether the defen-
dant has a “conviction.” If not, the defendant is
not guilty. If so, go to step 2.
2. Determine whether the conviction was
expunged, set aside, the defendant was par-
doned, or the defendant’s civil rights were
restored.[6] If not, the conviction stands. If so,
go to step 3.
4
18 U.S.C. § 921(a)(20)(B) (“What constitutes a conviction of such a
crime shall be determined in accordance with the law of the jurisdiction
in which the proceedings were held. Any conviction which has been
expunged, or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship, transport, possess,
or receive firearms.”).
5
United States v. Valerio, 441 F.3d 837, 840 (9th Cir. 2006).
6
The Supreme Court recently held that “the words ‘civil rights restored’
do not cover the case of an offender who lost no civil rights.” Logan v.
United States, No. 06-6911, 552 U.S. ___, at 13 (December 4, 2007).
16560 UNITED STATES v. CRAMPTON
3. Determine whether the pardon, expungment, or
restoration of civil rights expressly provides that
the defendant may not ship, transport, possess,
or receive firearms. If so, the conviction stands.
If not, the defendant is not guilty.
Crampton does not dispute whether he has past convictions
for step one of the analysis. Step two is satisfied because Ore-
gon law restores felons’ civil rights “automatically upon dis-
charge or parole from imprisonment . . . .”7 The extent of
restoration determines, under step three, whether an Oregon
felon can be convicted under the federal felon in possession
law.8 Oregon’s restoration of a felon’s civil rights does not
include restoration of a felon’s right to possess a firearm
because Or. Rev. Stat. § 166.270(1) provides that “[a]ny per-
son who has been convicted of a felony under the law of this
state or any other state, or who has been convicted of a felony
under the laws of the Government of the United States, who
owns or has in the person’s possession or under the person’s
custody or control any firearm commits the crime of felon in
possession of a firearm.” But Oregon does not define “fire-
arm” to include cartridges.9
This case requires elaboration of step three of the Valerio
flowchart. For this step, the federal statute has an “unless”
exception: “unless . . . restoration of civil rights expressly pro-
vides that the person may not ship, transport, possess, or
receive firearms.”10 The federal statute has a general rule, that
7
Or. Rev. Stat. § 137.281(7).
8
See United States v. Cardwell, 967 F.2d 1349, 1350-51 (9th Cir. 1992).
(“[I]n determining whether a restoration of civil rights expressly prohibits
firearm possession, [a court] must look to the whole of state law at the
time of the restoration.”).
9
Or. Rev. Stat. § 166.210(3) (“ ‘Firearm’ means a weapon, by whatever
name known, which is designed to expel a projectile by the action of pow-
der and which is readily capable of use as a weapon.”).
10
18 U.S.C. § 921(a)(20)(B).
UNITED STATES v. CRAMPTON 16561
felons cannot possess guns, an exception for felons whose
civil rights have been restored, and an exclusion from the
exception where the state restoration of civil rights excludes
guns. Oregon law does not prohibit felons from possessing
ammunition,11 but federal law does.12 Since Crampton’s pos-
session of .357 cartridges was not prohibited by Oregon law,
he contends that it was not prohibited by federal law.
Crampton relies on a case upholding his position, United
States v. Miller.13 In Miller, we held that because Oregon law
did not prohibit possession of ammunition by an Oregon felon
whose civil rights had been restored by operation of Oregon
law, neither did the federal statute.14 But after Miller, the
Supreme Court came down the opposite way in Caron v.
United States.15
Caron holds that under the “unless” clause, if the state con-
victions would count for some guns, “they count for all and
bar possession of all guns.”16 State law determines whether
under the “unless” clause a person’s conviction still counts as
a felony conviction for federal purposes.17 If so, federal law,
not state law, controls what firearms he may possess.18
[2] Caron has overruled Miller to the extent that under
11
See Or. Rev. Stat. § 166.270(1).
12
18 U.S.C. § 922(g) (“It shall be unlawful for any person . . . who has
been convicted in any court of, a crime punishable by imprisonment for
a term exceeding one year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or ammuni-
tion; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.”) (emphasis added).
13
United States v. Miller, 105 F.3d 552 (9th Cir. 1997).
14
Id. at 554.
15
Caron v. United States, 524 U.S. 308 (1998).
16
Id. at 314.
17
Caron v. United States, 524 U.S. 308, 316 (1998).
18
Id.16562 UNITED STATES v. CRAMPTON
Miller state law would determine what kinds of firearms a
felon whose civil rights had been restored could possess.19
The federal felon in possession law prohibits possession of
“any firearm or ammunition.”20 Now that we know from
Caron that the federal law controls what Crampton could pos-
sess, it does not matter that Oregon did not criminalize Cram-
pton’s possession of ammunition. Federal law does. True,
Caron involved possession of guns, and this case involves
possession of ammunition. That is a distinction without a dif-
ference, because (1) Caron holds that we use federal law to
determine what the felon may possess, and (2) the federal
statute prohibits felons from possessing a “firearm or ammuni-
tion.”21
B. Armed Career Criminal Act
The Armed Career Criminal Act imposes a fifteen-year
minimum sentence on people with three prior convictions of
sufficient seriousness.22 Crampton argues that his predicate
offenses were insufficiently serious to impose the harsher
penalties under this statute.
1. The Sawed-Off Shotgun.
One of Crampton’s convictions was for “unlawful posses-
sion of a short-barreled shotgun.” The Oregon statute crimi-
nalized possession of “a machine gun, short-barreled rifle,
short-barreled shotgun or firearms silencer.”23 For this state
crime to be a predicate for the Armed Career Criminal Act,
it has to be a “violent felony,” defined for this purpose as
19
Under United States v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003), Mil-
ler is still good law with regard to the scienter requirement in the federal
felon in possession law.
20
18 U.S.C. § 922(g).
21
Id.22
18 U.S.C. § 924(e).
23
Or. Rev. Stat. § 166.272(1).
UNITED STATES v. CRAMPTON 16563
“any crime punishable by imprisonment for a term exceeding
one year . . . that has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or . . . is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.”24
To determine whether a conviction under state law qualifies
as a violent felony, we use the categorical approach laid out
by the Supreme Court in Taylor v. United States.25 We look
to see if all the conduct prohibited by relevant state law meets
the ACCA’s definition of a violent felony. Crampton argues
possession should not be classed as a violent felony because
(1) short-barreled shotguns theoretically may have legitimate
uses, such as “snake control in the garden,” and (2) the Ore-
gon statute does not require a criminal purpose.
[3] Crampton’s argument is foreclosed by controlling cir-
cuit precedent. We held in United States v. Dunn26 and in
United States v. Amparo27 that possession of an unregistered
short-barreled shotgun is a “crime of violence” even if it was
never used and the statute does not require violent use.
Though we construed different penalty enhancements in those
cases, the ratio decidendi applies and allows for no distinc-
tion. In United States v. Serna, we held that possession of a
semiautomatic weapon categorized by statute as an illegal
“assault weapon” was not a crime of violence, but took pains
to distinguish sawed-off shotguns and silencers because “they
have few, if any, legitimate uses.”28 Therefore, Dunn and
Amparo are consistent with Serna.
24
18 U.S.C. § 924(e)(2)(B).
25
Taylor v. United States, 495 U.S. 575 (1990); see also Shepard v.
United States, 544 U.S. 13 (2005).
26
United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991).
27
United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir. 1995)
28
United States v. Serna, 435 F.3d 1046, 1048-49 (9th Cir. 2006).
16564 UNITED STATES v. CRAMPTON
2. The Drug Convictions
Crampton’s other three prior convictions are for drug
crimes. He argues, correctly, that even though the statutory
maximum sentences for his convictions meet the ten year
standard for seriousness under the Armed Career Criminal
Act, the Oregon sentencing guidelines would make the maxi-
mum sentences lower than ten years. He argues further that
the state sentencing guidelines have the force of law over the
state statutory maximums, so his predicate offenses would not
have the necessary ten year maximums for application of the
federal sentencing enhancement.29
Crampton’s argument is based on the Oregon Supreme
Court decision in State v. Dilts.30 There the Oregon Supreme
Court upheld the Oregon sentencing guidelines against a
Blakely challenge by determining that the trial court cannot
apply enhancements above the guidelines, but within the stat-
utory maximums, without a jury determination.31
[4] We are bound to reject Crampton’s argument by our
decision in United States v. Parry.32 There, as in the case at
bar, we confronted the question of whether Oregon drug
offenses with statutory maximums greater than ten years but
sentencing guidelines limiting the sentence to less than ten
years were sufficient predicates for operation of the federal
29
The Armed Career Criminal Act defines “serious drug offense,” in
pertinent part, as “an offense under State law, involving manufacturing,
distributing, or possessing with the intent to manufacture or distribute, a
controlled substance . . . for which a maximum term of imprisonment of
ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii)
(emphasis added).
30
State v. Dilts, 103 P.3d 95 (Or. 2004).
31
Id. at 100.
32
United States v. Parry, 479 F.3d 722 (9th Cir. 2007). The Parry deci-
sion came down after the briefs in this case were filed. Defense counsel
properly and candidly advised us of the case in a Fed. R. App. P. 28(j) let-
ter.
UNITED STATES v. CRAMPTON 16565
Armed Career Criminal Act. We held that they are.33 We
applied United States v. Murillo, which construed Washington
law, and held that “the maximum sentence is the statutory
maximum sentence for the offense, not the maximum sen-
tence available in the particular case under the sentencing guide-
lines.”34 Therefore, Crampton’s drug convictions count as
predicate offenses for the Armed Career Criminal Act.
3. Almendarez-Torres35
Crampton argues that Almendarez-Torres should be limited
in order to reconcile it with Apprendi and Blakely, so that the
predicate crimes for application of the Armed Career Criminal
Act require indictment and proof beyond a reasonable doubt
to a jury. In this case the predicate crimes were charged in the
indictment and Crampton pleaded guilty to the indictment, so
the issue does not properly arise. If it did, it would be fore-
closed by our holding in United States v. Brown that a jury
did not need to “decide whether a prior conviction should be
classified as a ‘crime of violence’ for the purpose of determin-
ing career-offender status” under the federal sentencing guide-
lines.36 Thus, the Almendarez-Torres exception applies.
AFFIRMED.
33
Parry, 479 F.3d at 726.
34
Id. (quoting United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir.
2005).
35
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
36
United States v. Brown, 417 F.3d 1077, 1079 (9th Cir. 2005) (per
curium).