United States v. Taylor ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30580
Plaintiff-Appellee,
v.  D.C. No.
CR-03-05047-RBL
DAVID OLINEY TAYLOR,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued May 7, 2008;
Resubmitted May 19, 2008
Seattle, Washington
Filed June 26, 2008
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcón
7557
UNITED STATES v. TAYLOR 7559
COUNSEL
William C. Broberg, Seattle, Washington, for the defendant-
appellant.
Helen J. Brunner and Karyn S. Johnson, Assistant United
States Attorneys, Office of the United States Attorney, Seat-
tle, Washington, for the plaintiff-appellee.
OPINION
ALARCÓN, Circuit Judge:
David Oliney Taylor pleaded guilty to nine counts of armed
bank robbery, and one count of bank robbery, in violation of
7560 UNITED STATES v. TAYLOR
18 U.S.C. § 2113. He appeals from the district court’s sen-
tencing decision. He contends that the district court erred in
concluding that he was previously convicted of two crimes of
violence, and consequently in adjusting his advisory sentence
upward pursuant to United States Sentencing Commission
Guidelines Manual (“USSG”) § 4B1.1. He asserts that the dis-
trict court erred in concluding that his 1986 Arizona state
court conviction for attempted armed robbery was a crime of
violence under USSG § 4B1.2(a)(1) because the court looked
to Arizona intermediate appellate court decisions to determine
that Arizona’s attempt statute, Arizona Revised Statutes § 13-
1001, is coextensive with the federal definition of attempt. He
claims that the statute itself establishes that his conviction was
not a crime of violence because it demonstrates that Arizona’s
definition of attempt is broader than the federal definition. See
Appellant’s Br. at 21 (“[T]he Arizona attempt statute’s plain
language rendered it broad and not coextensive with the fed-
eral law of attempt.”).
We affirm, because we conclude that the district court
properly considered Arizona intermediate appellate court
decisions in determining whether Taylor’s attempted armed
robbery conviction was a categorical crime of violence. We
also agree with the district court that the Arizona and federal
definitions of attempt are coextensive.
I
The district court sentenced Taylor to 235 months of
imprisonment, five years of supervised release, $33,694 in
restitution, and an assessment of $1,000. Taylor appealed
from the judgment of conviction and the district court’s sen-
tencing decision. We upheld his conviction, but granted a lim-
ited remand for resentencing. See United States v. Taylor, No.
04-30174, 142 Fed. Appx. 287, 2005 U.S. App. LEXIS
15174, at *5 (9th Cir. 2005) (unpublished disposition) (“Be-
cause we cannot determine from the record whether the dis-
trict court would have imposed a materially different sentence
UNITED STATES v. TAYLOR 7561
if it had known the Guidelines were advisory, we grant a ‘lim-
ited remand.’ ”).
The presentence report prepared for Taylor’s resentencing
documented his criminal history. It described two Arizona
state court convictions: first, Taylor’s May 1, 1986 conviction
for attempted armed robbery, and second, his March 5, 1992
conviction for armed robbery.1 The presentence report con-
cluded that Taylor qualified as a career offender for purposes
of USSG § 4B1.1 because he “(1) was at least eighteen years
old at the time he committed the instant offense; (2) the
instant offense is a felony crime of violence; and (3) he has
at least two prior felony convictions of a crime of violence.”
During the sentencing proceedings, Taylor argued that his
attempted armed robbery conviction was not a crime of vio-
lence. (“Our contention is that Arizona’s general attempt stat-
ute is over inclusive for purposes of defining predicate
offenses for the career offender guideline.”). The district court
followed United States v. Sarbia, 367 F.3d 1079 (9th Cir.
2004), and looked to the “applying courts in the state of Ari-
zona” to determine that Arizona’s definition of attempt is
coextensive with the federal definition. Therefore, it con-
cluded that Taylor qualified as a career offender.
Taylor was resentenced to 235 months of imprisonment,
five years of supervised release, $33,694 in restitution, and an
assessment of $1,000. Taylor filed a timely notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(2).
II
We review a district court’s interpretation of the USSG,
and its determination that a defendant is a career offender, de
1
The 1986 conviction was the result of a guilty plea. The 1992 convic-
tion came after a jury verdict.
7562 UNITED STATES v. TAYLOR
novo. United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.
2003). We review a district court’s application of the USSG
to the facts of a case for abuse of discretion. United States v.
Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).
A
Taylor contends that the district court erred in concluding
that Arizona’s attempt statute, Arizona Revised Statutes § 13-
1001, did not include conduct beyond the federal definition of
attempt. He argues that the district court erred by relying on
Arizona intermediate appellate court decisions. Taylor main-
tains that this court’s decision in Sarbia and the Supreme
Court’s decision in James v. United States, 127 S. Ct. 1586(2007), provide that we cannot rely on an intermediate appel-
late court’s interpretation of its state’s laws unless its highest
court has so construed the statute in question. Because Arizo-
na’s Supreme Court has not construed section 13-1001, he
contends that the district court was required to look only to
the unambiguous words of the statute. We disagree.
USSG § 4B1.2(a) defines a “crime of violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of phys-
ical injury to another.
In determining whether a state crime is a crime of violence,
“we use the categorical approach” described in Taylor v.
United States, 495 U.S. 575 (1990). United States v. Rendon-
UNITED STATES v. TAYLOR 7563
Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007). “Under the cate-
gorical approach a court must ‘look only to the fact of convic-
tion and the statutory definition of the prior offense’ when
determining whether the offense qualifies under a definition
in the Guidelines.” Id. (quoting Taylor, 495 U.S. at 602).
[1] For purposes of USSG § 4B1.2(a), a state offense quali-
fies as a crime of violence if the state crime’s definition is
coextensive with the crime’s common-law or “federal” defini-
tion. See Sarbia, 367 F.3d at 1085-86 (comparing Nevada’s
definition of attempt with the common-law definition). For
purposes of determining whether an attempt crime is a crime
of violence, we have stated that “[a]t common law an
attempt[ ] was defined as the specific intent to engage in crim-
inal conduct and . . . an overt act which is a substantial step
towards committing the crime.” Id. at 1086 (internal quota-
tions omitted).2
The Supreme Court has instructed that
to find that a state statute creates a crime outside the
generic definition of a listed crime in a federal stat-
ute requires more than the application of legal imagi-
nation to a state statute’s language. It requires a
realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct that falls
outside the generic definition of a crime. To show
that realistic possibility, an offender, of course, may
show that the statute was so applied in his own case.
But he must at least point to his own case or other
cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for
which he argues.
2
We use the terms “federal definition” and “common-law definition”
interchangeably in the context of crimes of violence. See, e.g., Sarbia, 367
F.3d at 1086.
7564 UNITED STATES v. TAYLOR
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)
(emphasis added).
In Sarbia, we concluded that, although
Nevada requires proof that the defendant has per-
formed “some act” rather than a “substantive step”
towards the commission of the crime[,] . . . . after
reviewing numerous Nevada Supreme Court opin-
ions on the subject, we are persuaded that the terms
“some act” or “slight act,” as used in the Nevada
caselaw, have the same operational meaning as “sub-
stantial step,” as used in the traditional common-law
definition of attempt.
367 F.3d at 1086. Taylor’s argument that this court’s decision
in Sarbia did not cite intermediate decisions is misleading.
Nevada does not have an intermediate appellate court, so the
absence of such citations proves nothing about what cases we
should look to in a state that has such a court. Thus, Sarbia
does not support Taylor’s argument that the district court
erred by relying on intermediate appellate court decisions.
In James, the Supreme Court concluded that a Florida stat-
ute criminalized an offense that by its nature presented “a
serious potential risk of injury to another”; therefore, the
offense qualified as a violent felony for purposes of the
Armed Career Criminal Act of 1984. 127 S. Ct. at 1597-98.
In determining whether the attempt crime satisfied the violent
felony definition, the Court analyzed “what constitutes
attempted burglary under Florida law.” Id. at 1594. It noted
that “[o]n its face, Florida’s attempt statute requires only that
a defendant take ‘any act toward the commission’ of burgla-
ry.” Id. (quoting Fla. Stat. § 777.04(1)).
The Court looked beyond the text of the Florida statute and
considered how Florida’s highest court, and its appellate
courts, defined attempted burglary. The Court stated that,
UNITED STATES v. TAYLOR 7565
“while the statutory language is broad, the Florida Supreme
Court has considerably narrowed its application in the context
of attempted burglary,” and “Florida’s lower courts appear to
have consistently applied this heightened standard.” Id. Con-
trary to Taylor’s argument, the Court did not hold in James
that we may not rely on a state’s intermediate appellate courts
in determining how a state actually applies an attempt statute.
In fact, in James, the Court cited two Florida intermediate
appellate court decisions, Richardson v. State, 922 So. 2d 331,
334 (Fl. Ct. App. 2006), and Davis v. State, 741 So. 2d 1213,
1214 (Fl. Dist. Ct. App. 1999), for the proposition that mere
preparation is not enough to constitute attempt under Florida
law. James, 127 S. Ct. at 1594.
[2] Taylor has cited no authority, and we are aware of none,
that requires a district court to disregard an opinion rendered
by an intermediate appellate court that has interpreted state
law. Neither the Supreme Court nor any Circuit Court of
Appeals has determined whether a district court is precluded
from applying the decisions of intermediate state appellate
courts in deciding whether a state criminal statute is coexten-
sive with federal law. However, the Supreme Court has held,
in a case in which jurisdiction rested on diversity of citizen-
ship, that
Where an intermediate appellate state court rests its
considered judgment upon the rule of law which it
announces, that is a datum for ascertaining state law
which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise.
West v. AT&T, 311 U.S. 223, 237 (1940). We follow this prin-
ciple here.
[3] We are persuaded that a state intermediate appellate
court’s holding takes a statute’s application from “legal imag-
ination” to “realistic probability.” The district court did not err
7566 UNITED STATES v. TAYLOR
in relying on Arizona intermediate appellate court opinions.
Accordingly, we must consider the question whether, under
Arizona caselaw, Taylor’s attempted armed robbery convic-
tion was a crime of violence because it is an offense that “has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” USSG
§ 4B1.2(a)(1).
B
[4] Under Arizona law,
A person commits robbery if in the course of taking
any property of another from his person or immedi-
ate presence and against his will, such person threat-
ens or uses force against any person with intent
either to coerce surrender of property or to prevent
resistance to such person taking or retaining prop-
erty.
Ariz. Rev. Stat. § 13-1902 (emphasis added).
A person commits armed robbery if, in the course of
committing robbery . . . such person or an accom-
plice:
1. Is armed with a deadly weapon or a simulated
deadly weapon; or
2. Uses or threatens to use a deadly weapon or dan-
gerous instrument or a simulated deadly weapon.
§ 13-1904(A). Armed robbery under Arizona law involves the
threat or use of force; therefore, that offense is a crime of vio-
lence pursuant to § 4B1.2(a)(1).
[5] “[A]n attempt to commit a crime of violence is itself a
crime of violence.” United States v. Wenner, 351 F.3d 969,
UNITED STATES v. TAYLOR 7567
976 (9th Cir. 2003) (citing USSG § 4B1.2 cmt. n.1). When the
text of an attempt statute deviates from the federal definition
of attempt, however, we must look to state caselaw to deter-
mine whether the state’s definition is coextensive with the
federal definition, and therefore qualifies as an attempt for
purposes of the USSG. Sarbia, 367 F.3d at 1085-86.
[6] Arizona’s attempt statute provides that a person com-
mits an attempt to commit a crime if he or she “[i]ntentionally
does or omits to do anything which, under the circumstances
as such person believes them to be, is any step in a course of
conduct planned to culminate in commission of an offense.”
Ariz. Rev. Stat. § 13-1001(A)(2). “At common law an
attempt[ ] was defined as the specific intent to engage in crim-
inal conduct and . . . an overt act which is a substantial step
towards committing the crime.” Sarbia, 367 F.3d at 1086(internal quotations omitted). The wording of the Arizona
statute deviates from and is broader than the federal defini-
tion; therefore, we must look to Arizona caselaw to determine
if section 13-1001(A)(2) is applied in a manner that is con-
trary to the federal or common-law definition of an attempt.
[7] In State v. Fristoe, 658 P.2d 825, 830 (Ariz. Ct. App.
1982), the Arizona Court of Appeals held twenty-six years
ago that an attempt under Arizona law requires a substantial
step, and that “the legislature merely intended to simplify the
language of A.R.S. § 13-1001(A)(2) by using ‘any step’ as
opposed to [a] ‘substantial step.’ ” Recently, Fristoe was
cited for the proposition that “ ‘any step’ [is] equivalent to
‘substantial step’ ” for purposes of [Arizona’s] attempt stat-
ute.” State v. Johnson, 111 P.3d 1038, 1040 (Ariz. Ct. App.
2005). No case suggests that the Arizona Supreme Court
would decide otherwise.
[8] Therefore, based on a review of Arizona’s caselaw, it
is clear that Arizona’s definition of attempt is coextensive
with the federal definition. As a result, the district court prop-
7568 UNITED STATES v. TAYLOR
erly concluded that Taylor’s attempted armed robbery convic-
tion was a crime of violence pursuant to USSG § 4B1.2(a)(1).
AFFIRMED.