United States v. Crampton ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30219
Plaintiff-Appellee, D.C. No.
v.
 CR-04-60016-MRH
GREGG LEON CRAMPTON, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
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
Amended March 10, 2008
Before: David R. Thompson, Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Kleinfeld
2229
UNITED STATES v. CRAMPTON 2231
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.
ORDER
The petition for rehearing is DENIED.
The opinion filed on December 20, 2007, and appearing at
510 F.3d 1108 (9th Cir. 2007), is withdrawn. We substitute
the amended opinion filed herewith. The amended opinion
revises the statement of facts.
The previously filed opinion took the statement of facts
from the presentence report, based upon what the presentence
report says Ms. Ritch told the arresting officer. Ms. Ritch tes-
tified at the sentencing hearing that she had lied to the arrest-
ing officer and gave a different statement. Since the
differences are immaterial to the legal analysis, we need not
and do not resolve them.
Judges Kleinfeld and Bybee have voted to deny the petition
for rehearing en banc, and Judge Thompson has recom-
mended the same.
2232 UNITED STATES v. CRAMPTON
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on the
petition for rehearing en banc. Fed. R. App. P. 35(b).
The petition for rehearing en banc is DENIED.
No further petitions for rehearing or for rehearing en banc
may be filed.
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 Michelle Ritch and her two
or three-year-old1 around as he made a methamphetamine
delivery. He realized his probation officer had seen him, so he
sped away. They threw methamphetamine and needles out of
the window. Crampton slowed and opened the door, and
Ritch and her child left the moving 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.
The next day Crampton called Ritch 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.
1
Ms. Ritch’s accounts varied as to this and a number of other details.
All of the amendments in this revised opinion elide the facts that are
unclear. None of the changes are material to the substance of the decision.
UNITED STATES v. CRAMPTON 2233
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.2 The indictment
stated four prior felonies that would make Crampton eligible
for enhanced punishment under the Armed Career Criminal
Act.3 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.4
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
2
“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).
3
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).”).
4
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”).
2234 UNITED STATES v. CRAMPTON
he was indicted under federal law, there is a complicated
interplay between federal and state law regarding felons pos-
sessing firearms.5 We laid out what amounts to a flowchart of
the interplay in United States v. Valerio:6
When a court must determine whether a state convic-
tion has been invalidated for purposes of the federal
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.[7] If not, the conviction stands. If so, go
to step 3.
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.
5
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.”).
6
United States v. Valerio, 441 F.3d 837, 840 (9th Cir. 2006).
7
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).
UNITED STATES v. CRAMPTON 2235
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 . . . .”8 The extent of
restoration determines, under step three, whether an Oregon
felon can be convicted under the federal felon in possession
law.9 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.10
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.”11 The federal statute has a general rule, that
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,12 but federal law does.13 Since Crampton’s pos-
8
Or. Rev. Stat. § 137.281(7).
9
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.”).
10
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.”).
11
18 U.S.C. § 921(a)(20)(B).
12
See Or. Rev. Stat. § 166.270(1).
13
18 U.S.C. § 922(g) (“It shall be unlawful for any person . . . who has
2236 UNITED STATES v. CRAMPTON
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.14 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.15 But after Miller, the
Supreme Court came down the opposite way in Caron v.
United States.16
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.”17 State law determines whether
under the “unless” clause a person’s conviction still counts as
a felony conviction for federal purposes.18 If so, federal law,
not state law, controls what firearms he may possess.19
[2] Caron has overruled Miller to the extent that under
Miller state law would determine what kinds of firearms a
felon whose civil rights had been restored could possess.20
The federal felon in possession law prohibits possession of
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).
14
United States v. Miller, 105 F.3d 552 (9th Cir. 1997).
15
Id. at 554.
16
Caron v. United States, 524 U.S. 308 (1998).
17
Id. at 314.
18
Caron v. United States, 524 U.S. 308, 316 (1998).
19
Id.
20
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.
UNITED STATES v. CRAMPTON 2237
“any firearm or ammunition.”21 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.”22
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.23 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.” 24 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
“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-
21
18 U.S.C. § 922(g).
22
Id.
23
18 U.S.C. § 924(e).
24
Or. Rev. Stat. § 166.272(1).
2238 UNITED STATES v. CRAMPTON
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.”25
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.26 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. Dunn27 and in
United States v. Amparo28 that possession of an unregistered
short-barreled shotgun is a “crime of violence” even if it was
never used and that 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.”29 Therefore, Dunn and
Amparo are consistent with Serna.
2. The Drug Convictions
Crampton’s other three prior convictions are for drug
crimes. He argues, correctly, that even though the statutory
25
18 U.S.C. § 924(e)(2)(B).
26
Taylor v. United States, 495 U.S. 575 (1990); see also Shepard v.
United States, 544 U.S. 13 (2005).
27
United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991).
28
United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir. 1995).
29
United States v. Serna, 435 F.3d 1046, 1048-49 (9th Cir. 2006).
UNITED STATES v. CRAMPTON 2239
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.30
Crampton’s argument is based on the Oregon Supreme
Court decision in State v. Dilts.31 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.32
[4] We are bound to reject Crampton’s argument by our
decision in United States v. Parry.33 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
Armed Career Criminal Act. We held that they are.34 We
applied United States v. Murillo, which construed Washington
law, and held that “the maximum sentence is the statutory
30
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).
31
State v. Dilts, 103 P.3d 95 (Or. 2004).
32
Id. at 100.
33
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.
34
Parry, 479 F.3d at 726.
2240 UNITED STATES v. CRAMPTON
maximum sentence for the offense, not the maximum sen-
tence available in the particular case under the sentencing guide-
lines.”35 Therefore, Crampton’s drug convictions count as
predicate offenses for the Armed Career Criminal Act.
3. Almendarez-Torres
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 Almandarez-Torres exception applies.
AFFIRMED.
35
Id. (quoting United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir.
2005).
36
United States v. Brown, 417 F.3d 1077, 1079 (9th Cir. 2005) (per
curium).