United States v. Mayer ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30274
Plaintiff-Appellee, D.C. No.
v.  CR-05-60072-ALA
CASEY DALE MAYER, ORDER AND
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
May 5, 2008—Portland, Oregon
Filed March 16, 2009
Before: Richard C. Tallman, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Order;
Dissent to Order by Chief Judge Kozinski;
Opinion by Judge N.R. Smith;
3295
UNITED STATES v. MAYER 3299
COUNSEL
Craig E. Weinerman, Assistant Federal Public Defender,
Eugene, Oregon, for the defendant-appellant.
Frank R. Papagni, Jr., Assistant United States Attorney,
Eugene, Oregon, for the plaintiff-appellee.
ORDER
The opinion in the above-captioned matter filed on June 30,
2008, and published at 530 F.3d 1099, is WITHDRAWN. The
superseding opinion shall be filed concurrently with this
order.
Having made the foregoing amendments to the opinion, all
judges on the panel have voted to deny Defendant/Appellee’s
Petition for Panel Rehearing, and so that petition is DENIED.
The full court has been advised of Defendant/Appellee’s
Petition for Rehearing En Banc, and a judge of this court
requested a vote on whether this case should be reheard en
banc; however, a majority of the active judges did not vote in
favor of en banc consideration. Fed. R. App. P. 35. Accord-
ingly, the Petition for Rehearing En Banc is also DENIED.
3300 UNITED STATES v. MAYER
Chief Judge KOZINSKI, with whom Judges REINHARDT
and W. FLETCHER join, dissenting from the denial of
rehearing en banc.
This is a train wreck in the making.
The panel cleaves a formerly uniform doctrine—the Taylor
categorical approach—into two branches. One approach for
most things; a separate, incompatible version for a single
clause of the Armed Career Criminal Act. This approach is
novel, difficult to administer and will encourage future panels
to splinter the categorical approach into even smaller pieces.
That’s not all: The panel also reads ACCA’s residual clause
so broadly that nearly any crime will qualify. And it does so
by embracing an argument that the Supreme Court rejected
this Term, in an opinion on which the ink is barely dry. This
is precisely the sort of case we need to take en banc in order
to prevent serious damage to the fabric of our circuit law.
1. The categorical approach of Taylor v. United States, 495
U.S. 575, 600 (1990), has been applied with remarkable uni-
formity to many areas of law. It’s used for ACCA; it’s used
for immigration; it’s used for the Sentencing Guidelines. The
inquiry in all of these areas is identical and elegant: Does the
state offense reach conduct beyond the generic federal defini-
tion? The way we answer that question is by looking at state
prosecutions to see whether any of them actually involved
such uncovered conduct.
This case is about whether Oregon’s first-degree burglary
statute is a crime of violence. There are two ways that it could
be. First, it could qualify as a generic Taylor burglary; second,
it could fall under the statute’s residual clause, which covers
crimes that present a “serious potential risk of physical inju-
ry.” The panel quickly recognizes that Oregon’s burglary stat-
ute doesn’t qualify as generic burglary. United States v.
Mayer, 530 F.3d 1099, 1106 (9th Cir. 2008). The only
UNITED STATES v. MAYER 3301
remaining question is whether Oregon burglary falls within
the residual clause.
To determine whether this is the case, the panel needs to
ask a simple question: Does Oregon’s burglary statute only
reach conduct that presents a “serious potential risk of physi-
cal injury?” And the right answer is obviously no: Oregon
prosecutes as burglars people who pose no risk of injury to
anyone. E.g. State v. Keys, 244 Or. 606 (1966) (upholding
burglary conviction for entering public telephone booths to
steal change from coin boxes). Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007), held that an offender can show
“that a state statute creates a crime outside the generic defini-
tion . . . in a federal statute” by pointing to “cases in which
the state courts in fact did apply the statute” more broadly
than the federal definition would reach. Keys, decided by the
state’s highest court, is such a case.
Instead of asking and answering this simple question, the
panel comes up with a new, complicated question to ask: Do
“[m]ost of the cases” under the state statute involve dangerous
conduct? Mayer, 530 F.3d at 1108. Forget, for the moment,
whether this inquiry has a basis in law. Don’t even think
about how a court is supposed to figure out whether a statute
is applied in a certain way “most of the time.” (A statistical
analysis of the state reporter? A survey? Expert evidence?
Google? Gut instinct?) Ask instead: Why should we want to
fork the categorical approach into multiple branches?
A great virtue of the categorical approach has been its con-
sistency across doctrinal areas. Immigration cases that explain
it, like Duenas-Alvarez, can be applied to ACCA. E.g. James
v. United States, 127 S. Ct. 1586, 1597 (2007) (citing Duenas-
Alvarez). ACCA cases, like Taylor, can be applied to the Sen-
tencing Guidelines. E.g. United States v. Snellenberger, 548
F.3d 699, 700 (9th Cir. 2008) (en banc) (citing Taylor). And
Sentencing Guidelines cases, like Snellenberger, can be
applied to immigration. E.g. Renteria-Morales v. Mukasey,
3302 UNITED STATES v. MAYER
551 F.3d 1076, 1082 (9th Cir. 2008) (citing Snellenberger).
The interoperability of the doctrine means that precedents can
be mixed and matched, regardless of which statute was at
issue in which case. One approach; one body of law. Com-
plex, to be sure, but at least uniform in application.
By creating a side-spur just for ACCA’s residual clause, the
panel has laid the groundwork for major confusion. This is
especially true given that we have already applied the ordi-
nary categorical approach to every other part of the same stat-
utory sentence: the enumerated offenses of burglary, United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc);
arson, United States v. Velasquez-Reyes, 427 F.3d 1227 (9th
Cir. 2005); extortion, United States v. Becerril-Lopez, 528
F.3d 1133 (9th Cir. 2008); and the use of explosives, United
States v. Fish, 368 F.3d 1200 (9th Cir. 2004). There is nothing
whatsoever about the position or language of the residual
clause that would suggest different treatment: ACCA defines
a crime of violence as an offense that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis
added). No one reading this definition could predict that the
underlined phrase would be treated differently than the rest of
the sentence—or explain why. Suddenly, any statutory
comma may trigger a doctrinal shift. Whatever happened to
ejusdem generis? The law in this area is difficult enough with-
out such pointless complexity.
Now, circle back to that question about the legal basis for
this needless innovation: There is none. The panel says, quot-
ing James, that not “every conceivable factual offense cov-
ered by a statute” need fall within the generic federal
definition for it to categorically qualify. Mayer, 530 F.3d at
1108. True. The Supreme Court said as much in Duenas-
Alvarez, where it cautioned against unsubstantiated flights of
legal imagination. James, in fact, cites Duenas-Alvarez for
this proposition. But a caution against legal imagination has
UNITED STATES v. MAYER 3303
no relevance to our case because Oregon has in fact applied
its burglary statute to non-dangerous conduct. The panel is
thus interpreting James and Duenas-Alvarez, decided only
three months apart, to require different outcomes depending
on whether the case is about immigration or ACCA’s residual
clause. If this is what the James majority had in mind, one
would think they would do more than cite Duenas-Alvarez
with a cf.
The panel has dragged us far out of the mainstream. We
now have the dubious distinction of being the only federal
court in the country to hold that there are two categorical
approaches: one for most situations and another one for the
ACCA’s residual clause. It’s going to be a tough regime to
administer, and wrong to boot.
2. But there’s more. Congress didn’t intend ACCA “to be
all-encompassing,” or it wouldn’t have included the enumer-
ated crimes at all. Begay v. United States, 128 S. Ct. 1581,
1585 (2008). The residual clause therefore reaches only those
crimes “characteristic of the armed career criminal, the epo-
nym of the statute.” Id. at 1586 (internal quotation marks and
citation omitted). Congress’s intent was to combat the “spe-
cial danger created when a particular type of offender” pos-
sesses a gun. Id. at 1587 (emphasis added). This suggests a
narrow residual clause, which is appropriate given the harsh
15-year minimum sentence that ACCA provides.
The panel adopts an argument that stretches the residual
clause beyond recognition: Oregon’s burglars are dangerous,
says the panel, because they might turn violent if appre-
hended. Mayer, 530 F.3d at 1108-09. While the Supreme
Court has held that “attempting a break-in” creates a special
risk of violent confrontation, James, 127 S. Ct. at 1595, Ore-
gon’s burglars don’t need to break in. As Keys illustrates,
Oregon has eliminated the unlawful entry requirement. Our
colleague, then-Justice Goodwin, worried in dissent that his
court had made a burglar of a man who enters a courthouse
3304 UNITED STATES v. MAYER
intending to perjure himself. Keys, 244 Or. at 617. The special
danger of a break-in is therefore absent. It’s true that a burglar
in Portland might turn violent if the police attempt to appre-
hend him, but so might any criminal caught committing any
serious crime. Accepting this argument turns ACCA into a
general sentence enhancement for recidivists and renders the
enumerated offenses mere surplusage.
The validity of this “dangerousness at apprehension” theory
is not an open question; the Supreme Court just rejected it.
Chambers v. United States, 129 S. Ct. 687 (2009), considered
whether failure to report for incarceration is a violent felony
under ACCA’s residual clause. The government argued that
failing to report makes criminals dangerous because they may
be violent if apprehended, and “[shoot] at officers attempting
to recapture them.” Id. at 692. This argument, which carried
the day in our court, was dismissed by the Supreme Court as
“beside the point.” In the Court’s view, the “question is
whether such an offender is significantly more likely than oth-
ers to attack, or physically to resist, an apprehender.” Id.
(emphasis added).
There is nothing about an Oregon burglar that makes him
more likely to turn violent if cornered than any other serious
felon. If Oregon burglary qualifies under ACCA’s residual
clause, so does any other serious felony in the nine Western
states. This is precisely the result the Supreme Court warned
against in Begay. The panel manages to create a conflict with
two recent Supreme Court cases—Begay and Chambers, the
latter only a few weeks old.
* * *
We have sown the wind and will reap the whirlwind. Mr.
Mayer’s the first casualty; he won’t be the last.
UNITED STATES v. MAYER 3305
OPINION
N.R. SMITH, Circuit Judge:
The district court properly denied Casey Dale Mayer’s
motion to suppress, because (1) officers had probable cause
to believe that Mayer lived at the residence they searched and
(2) the conditions of his probation authorized the search. We
also hold that the district court properly found that Mayer’s
prior conviction for first-degree burglary in Oregon was a
predicate “violent felony” under the residual clause of the
Armed Career Criminal Act (“ACCA”). In the ordinary case,
conduct falling within Oregon’s first degree burglary statute
presents a serious possibility of risk of physical injury to oth-
ers. Lastly, the district court properly concluded that Mayer’s
two prior drug convictions were “serious drug offenses” under
the ACCA because Mayer’s offenses involved manufacturing
and delivering marijuana and Oregon law prescribes a maxi-
mum term of imprisonment of ten years or more for such
offenses. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
BACKGROUND
I. Factual Background
In February 2004, Mayer was on both post-prison supervi-
sion and probation as a result of two convictions for drug-
related offenses.1 Mayer’s probation record indicated that he
had lived at 103 Hansen Lane since September 2000. On
1
Mayer was serving post-prison supervision for a conviction, entered on
October 8, 2001, in the Circuit Court of the State of Oregon for Lane
County of: (i) unlawful manufacture of a controlled substance, (ii) deliv-
ery of marijuana for consideration, (iii) unlawful possession of a con-
trolled substance, and (iv) felon in possession of a firearm. Mayer was
sentenced to probation for a conviction, entered on February 2, 2004, in
the same court for: (i) unlawful manufacture of a controlled substance, and
(ii) unlawful delivery of a controlled substance.
3306 UNITED STATES v. MAYER
August 26, 2003, Mayer informed his Parole and Probation
Officer, Melinda Rauch, that he had moved temporarily to a
new residence located at 605 Davis Street. Between August
2003 and February 2004, Rauch met with Mayer twice at 605
Davis Street.
On February 24, 2004, one of Mayer’s former neighbors
from Hansen Lane called Rauch. He informed her that Mayer
was again living at 103 Hansen Lane and was likely selling
drugs out of the house. Rauch drove by 103 Hansen Lane on
several occasions; however, she was not able to personally
verify the caller’s information.2 In April 2004, Mayer
absconded from probation and post-prison supervision, and
two warrants were issued for his arrest.
On December 28, 2004, Parole and Probation supervisor
Susan McFarland received an anonymous phone call from a
man who refused to identify himself. The man stated (a) that
“absconded parolee Casey Mayer” was at 103 Hansen Lane,
(b) that he was certain that Mayer had a firearm, and (c) that
Mayer was probably growing marijuana. The man expressed
fear that Mayer would kill him if Mayer found out that he had
called the probation department. He also indicated that Mayer
would try to escape out of the back of the house if probation
officers knocked on the front door.
McFarland’s practice was to use the probation department’s
database to verify the information from an anonymous caller.
McFarland used the database to check Mayer’s listed address,
prior contacts and convictions, outstanding warrants, and to
assess his dangerousness. McFarland also called Rauch, who
advised her that there was a high likelihood that Mayer would
have weapons in the house and that he would resist arrest.
2
Rauch could not recall the dates on which she attempted to locate
Mayer.
UNITED STATES v. MAYER 3307
McFarland and four other Parole and Probation officers
then went to 103 Hansen Lane to execute the two outstanding
arrest warrants. When they arrived, McFarland positioned two
officers at the front door and sent two other officers to the rear
of the house (where the officers entered Mayer’s backyard
through an open gate) to block the suspected escape route and
to cover for the other officers. McFarland then noticed a man
and a woman standing directly across the street. When
McFarland approached the couple, the man told McFarland
that Mayer lived at 103 Hansen Lane, that Mayer lived by
himself, and that he had noticed a lot of people going in and
out of the house.
McFarland returned to join the officers at the front of the
house, who were pounding on the front door and identifying
themselves loudly and repeatedly. Although the officers heard
someone moving around in the house and the sounds of a tele-
vision coming from inside the house, no one answered the
door.
McFarland then went to the back of the house to check on
the other two officers. While in the backyard, she observed an
18-inch gap in the backyard fence, which she believed to be
the escape route described by the anonymous caller. McFar-
land also observed a bright light emanating from a plastic vent
in the house’s foundation, and she heard a loud electrical
buzzing noise coming from behind the vent. McFarland
peeked through a slit in the vent, saw a marijuana plant, and
smelled marijuana.
While McFarland was at the back of the house, one of the
officers (positioned at the front of the house) heard sounds
coming from the attic and called the sheriff’s department to
request back-up assistance. When the sheriff’s deputies
arrived, McFarland told Deputy Sheriff Eric Franklin about
her observations at the rear of the house. Franklin positioned
himself at the back of the house, outside of the fence. Franklin
had a photograph of Mayer that he handed through the slats
3308 UNITED STATES v. MAYER
in the fence to Deputy Sheriff David Thomas, who was sta-
tioned in the backyard. Thomas told Franklin that he had seen
Mayer inside of the house. Franklin then crossed the fence
and went into the backyard, where he observed a marijuana
plant, smelled the odor of growing marijuana, and saw a PVC
pipe consistent with a hydroponic marijuana growing opera-
tion.
Approximately 1.5 hours after the probation officers
arrived, Mayer and his brother came out of the house. Mayer
admitted that there was marijuana growing inside the house,
but denied the presence of firearms. He also refused to con-
sent to a search of the residence.
Deputy Marvin Combs then applied for, and obtained, a
search warrant based on information that Franklin provided
over the telephone. The subsequent search revealed mari-
juana, items associated with growing marijuana, a .45 caliber
pistol in the attic, and a box of .45 caliber ammunition in the
bedroom.
II. Procedural History
On July 21, 2005, Mayer was indicted for being a felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1), as enhanced under the ACCA. On
November 18, 2005, Mayer filed a motion to suppress the
firearm. On March 8, 2006, following a suppression hearing,
the district court denied the motion. On June 30, 2006, Mayer
entered a conditional guilty plea pursuant to Federal Rule of
Criminal Procedure 11(a)(2), expressly reserving in writing
the right to appeal the denial of his suppression motion.
The government argued that the district court should
enhance Mayer’s sentence under the ACCA, because Mayer
had one prior conviction for a violent felony and two prior
convictions for serious drug offenses. The ACCA imposes a
special mandatory 15-year prison term upon felons who
UNITED STATES v. MAYER 3309
unlawfully possess a firearm and who also have three or more
previous convictions for “ ‘a violent felony or a serious drug
offense.’ ” United States v. Jennings, 515 F.3d 980, 987 (9th
Cir. 2008) (quoting 18 U.S.C. § 924(e)(1)). On July 13, 2007,
following a sentencing hearing, the district court determined
that Mayer’s prior convictions were qualifying offenses under
the ACCA, and sentenced Mayer to 180 months imprison-
ment, followed by five years of supervised release.
STANDARDS OF REVIEW
We review de novo a district court’s denial of a motion to
suppress. United States v. Lopez, 474 F.3d 1208, 1212 (9th
Cir. 2007). We review a district court’s underlying factual
findings for clear error. Id. We may affirm the denial of a
motion to suppress “on any basis fairly supported by the
record.” United States v. Todhunter, 297 F.3d 886, 889 (9th
Cir. 2002) (internal quotation marks omitted). We also review
de novo whether a prior conviction is a predicate felony under
the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th
Cir. 2007) (en banc).
DISCUSSION
I. Motion to Suppress
Mayer first argues that the officers illegally entered his
backyard and that, consequently, their observations of crimi-
nal activity were tainted. Mayer therefore contends that the
officers’ observations while in his backyard were improperly
included in the affidavit supporting the search warrant. We
disagree.
[1] In determining whether a search is reasonable, we
examine the “totality of the circumstances” in a “common-
sense” manner. United States v. Diaz, 491 F.3d 1074, 1078
(9th Cir. 2007). Because probationers enjoy only a “condi-
tional liberty properly dependent on observance of special
3310 UNITED STATES v. MAYER
[probation] restrictions,” states may constitutionally permit
probation officers to conduct searches without a warrant and
with less than probable cause. Griffin v. Wisconsin, 483 U.S.
868, 873-880 (1987) (alteration in original) (quoting Mor-
rissey v. Brewer, 408 U.S. 471, 480 (1972)). Thus, warrant-
less searches of probationers’ residences are permissible
under the Fourth Amendment when they are authorized by a
condition of probation and supported by reasonable suspicion
of criminal activity. United States v. Knights, 534 U.S. 112,
121-22 (2001).
[2] Even though officers only entered Mayer’s backyard
during the probation search, the conditions of Mayer’s proba-
tion authorized a warrantless search of his entire residence.
One condition of Mayer’s probation was that he “[p]ermit the
probation officer to visit [him] or [his] work site or residence
and to conduct a walk-through of the common areas and of
the rooms in the residence occupied by or under [his] con-
trol.” Another condition was that he had to “[c]onsent to the
search of person, vehicle or premises upon . . . request . . . if
the supervising officer has reasonable grounds to believe that
evidence of a violation will be found.”
[3] There is no doubt that the Parole and Probation officers
had a “reasonable suspicion” of criminal activity. Parole and
Probation officers received two phone calls — one from a
neighbor and one from an anonymous source — in which the
callers reported that Mayer was selling marijuana, and that he
was in possession of a firearm.
[4] Before law enforcement officers may conduct a war-
rantless probation search, however, they must also have prob-
able cause to believe that the probationer actually lives at the
residence searched. See United States v. Howard, 447 F.3d
1257, 1262 (9th Cir. 2006); Motley v. Parks, 432 F.3d 1072,
1079-80 (9th Cir. 2005) (en banc). In Illinois v. Gates, 462
U.S. 213, 233-34, 243-46 (1983), the Supreme Court held that
probable cause may be established based on a tip from an
UNITED STATES v. MAYER 3311
anonymous informant if there are sufficient indicia of reliabil-
ity. Such indicia include the informant’s history of providing
accurate information on previous occasions, a detailed
description of the alleged wrongdoing that the informant wit-
nessed first-hand, the provision of details not easily obtained
or predicted, or the police’s ability to corroborate the informa-
tion. Id.
[5] The district court correctly determined that the officers
had probable cause to believe that Mayer resided at 103 Han-
sen Lane on the day of the search. First, Mayer had previously
resided at the Hansen Lane address, providing some basis for
the officers to believe that he might be residing there again.
When Mayer reported his change of address to the Davis
Street address, he indicated that the move was “temporary.”
The fact that Mayer had absconded from probation presum-
ably meant that Rauch had been unable to locate Mayer at the
Davis Street address.
[6] Second, in February 2004, one of Mayer’s Hansen Lane
neighbors called Rauch to report that Mayer was residing at
103 Hansen Lane and likely selling drugs from the residence.
Although this information was provided by an informant,
Rauch testified that she knew the neighbor’s name and
address, had known him for a long time, and trusted him. The
information provided by the neighbor was consistent with
Mayer’s previous convictions for marijuana offenses, and it
tended to show that Mayer was living at the Hansen Lane
address. See Gates, 462 U.S. at 243-45.
[7] Third, on the day of the search, McFarland received an
anonymous phone call informing her that Mayer could be
found at 103 Hansen Lane. The caller knew that Mayer had
absconded from probation, believed Mayer had a gun and a
marijuana growing operation, and knew about a possible
escape route through the backyard. These facts were arguably
specific details not readily known by the public, and they
were corroborated by Mayer’s previous residence at 103 Han-
3312 UNITED STATES v. MAYER
sen Lane, his history of marijuana and firearms offenses, the
fact that he had actually absconded from parole, and McFar-
land’s subsequent observation of a possible escape route. See
id. at 234, 243-45.
[8] Finally, before McFarland entered the backyard of 103
Hansen Lane, a man who lived directly across the street told
her that Mayer lived there alone. This provided further cor-
roboration that Mayer was actually living at the Hansen Lane
address.3 Thus, under the totality of the circumstances, the
officers had probable cause to believe that Mayer was living
at 103 Hansen Lane on the date of the search. Accordingly,
we hold that the district court correctly ruled that the officers’
warrantless entry into Mayer’s backyard did not violate his
Fourth Amendment rights, and the officers’ observations of
criminal activity were properly included in the affidavit sup-
porting the search warrant.
We next turn to Mayer’s argument that the district court
erred by failing to suppress the firearm found in his residence.
As discussed above, the officers could have conducted a con-
stitutionally permissible warrantless search of Mayer’s entire
residence. The officers, however, went an extra step and
obtained a search warrant before entering Mayer’s residence.
“A search warrant, to be valid, must be supported by an affi-
davit establishing probable cause.” United States v. Jawara,
474 F.3d 565, 582 (9th Cir. 2007) (internal quotation marks
3
Mayer asserts that the district court should not have relied on this infor-
mation because, by the time that McFarland spoke with the neighbor,
other officers had already entered the backyard and made tainted observa-
tions of the marijuana growing operation. That argument is not persuasive,
however, because the affidavit for the search warrant was based only on
information provided by McFarland (who at that point in time had not yet
entered the backyard or talked to any officer who had), and Deputies
Franklin and Thomas (who were not yet at the scene). See Segura v.
United States, 468 U.S. 796, 814-15 (1984) (holding that evidence
obtained by officers prior to their illegal entry was not subject to exclu-
sion).
UNITED STATES v. MAYER 3313
omitted) (quoting United States v. Stanert, 762 F.2d 775, 778
(9th Cir. 1985)).
[9] Even if the conditions of Mayer’s probation had not
authorized the search of his residence, the totality of the cir-
cumstances indicate that the search warrant was supported by
probable cause. See Gates, 462 U.S. at 230-31. The affidavit
supporting the search warrant established that, in Mayer’s
backyard, officers had heard a loud buzzing noise, observed
growing marijuana, smelled the odor of growing marijuana,
and saw a PVC pipe consistent with a hydroponic marijuana
growing operation. Although these observations alone suffi-
ciently established probable cause for the search warrant, they
also corroborated the information received by Parole and Pro-
bation officers from informants, further supporting probable
cause. Additionally, Mayer admitted that there was marijuana
in the house after he and his brother came outside. The district
court therefore properly held that the search of Mayer’s resi-
dence did not violate the Fourth Amendment, and properly
denied Mayer’s motion to suppress the firearm.
II. Predicate Offenses Under the ACCA
[10] “The Armed Career Criminal Act imposes a special
mandatory 15-year prison term upon felons who unlawfully
possess a firearm and who also have three or more previous
convictions for committing certain drug crimes or ‘violent
felon[ies].’ ” Begay v. United States, 128 S. Ct. 1581, 1583
(2008) (brackets in original) (quoting 18 U.S.C. § 924(e)(1)).
The district court held that Mayer’s prior burglary conviction
was a “violent felony” under the ACCA, and that Mayer’s
other two prior convictions were “serious drug offenses”
under the ACCA.
A. Mayer’s Burglary Conviction
[11] Mayer argues that the district court erred by holding
that his 1994 Oregon conviction for first-degree burglary
3314 UNITED STATES v. MAYER
qualified as a predicate “violent felony.” The ACCA defines
a “violent felony” as any crime punishable by imprisonment
of more than a year that: (i) has as an element the use,
attempted use, or threatened use of physical force against the
person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.
See 18 U.S.C. § 924(e)(2)(B).
[12] To determine whether Mayer’s state conviction for
burglary constitutes generic “burglary” under the ACCA, we
first apply the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 599-602 (1990). Under the cate-
gorical approach, we look only to the state’s statutory defini-
tion of the crime, and not to the specific conduct underlying
the conviction. See United States v. Wenner, 351 F.3d 969,
972 (9th Cir. 2003). A state conviction is a predicate “burgla-
ry” offense if it has “the basic elements of unlawful or unpriv-
ileged entry into, or remaining in, a building or structure, with
intent to commit a crime.” Taylor, 495 U.S. at 599.
Under Oregon law, a person commits first-degree burglary
if he
violates [the second degree burglary statute] and the
building is a dwelling, or if in effecting entry or
while in a building or in immediate flight therefrom
the person: (a) Is armed with a burglary tool or theft
device . . . or a deadly weapon; (b) Causes or
attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
Or. Rev. Stat. § 164.225(1). A person commits second-degree
burglary if he “enters or remains unlawfully in a building with
intent to commit a crime therein.” Or. Rev. Stat. § 164.215(1).
A “building” is, “in addition to its ordinary meaning . . . any
booth, vehicle, boat, aircraft or other structure adapted for
overnight accommodation of persons or for carrying on busi-
UNITED STATES v. MAYER 3315
ness therein.” Or. Rev. Stat. § 164.205(1). A “dwelling” in
Oregon is defined as a “building which regularly or intermit-
tently is occupied by a person lodging therein at night,
whether or not a person is actually present.” Or. Rev. Stat.
§ 164.205(2).
[13] Oregon Revised Statutes section 164.225 is therefore
broader than the definition of generic burglary because the
statute does not limit burglary to “building[s] or structure[s],”
but also includes non-structures (such as booths, vehicles,
boats, and aircraft) that are regularly or intermittently used as
lodgings. Cf. Taylor, 495 U.S. at 599. Although we held in
United States v. Hunt, 925 F.2d 1181 (9th Cir. 1991), that
first-degree burglary under Oregon Revised Statutes section
164.225 was categorically a generic burglary, Hunt has been
undermined by our subsequent en banc opinion in United
States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc).
[14] In Grisel, we held that Oregon’s second-degree bur-
glary statute defined burglary more broadly than the generic
definition because it included entries into booths, vehicles,
boats, or aircraft. See id. at 850-52. In so holding, we
explained that, in Taylor, the Supreme Court made clear that
the generic term “building or structure” was limited to struc-
tures designed for occupancy and intended for use in one
place. See Grisel, 488 F.3d at 848-49. In Grisel, we also
expressly overruled prior cases, including United States v.
Sweeten, 933 F.2d 765 (9th Cir. 1991), which had held that
non-buildings (such as vehicles) adapted for overnight accom-
modation qualified as generic “building[s] or structure[s].” Id.
at 851 n.5. Although our en banc opinion in Grisel did not
expressly overrule Hunt, the two cases are irreconcilable
because Oregon’s first-degree burglary statute also encom-
passes Oregon’s second-degree burglary statute. Thus, first
degree burglary in violation of Oregon Revised Statutes sec-
tion 164.225 does not categorically satisfy the generic defini-
tion of burglary. See Or. Rev. Stat. §§ 164.205(1)-(2),
164.225(1).
3316 UNITED STATES v. MAYER
[15] As discussed, the ACCA enumerates four violent felo-
nies as predicate offenses for the fifteen year minimum sen-
tence: burglary, arson, extortion, and offenses involving the
use of explosives. See 18 U.S.C. § 924(e)(2)(B)(ii). A non-
enumerated offense, however, may categorically qualify as a
predicate violent felony under the ACCA’s “residual clause”4
if it “otherwise involves conduct that presents a serious poten-
tial risk of physical injury to another,” and is similar to an
enumerated predicate felony. Id.; see Begay, 128 S. Ct. at
1585-86.
We apply the categorical approach to determine whether an
offense poses a serious potential risk of physical injury. See
James v. United States, 127 S. Ct. 1586, 1593-94 (2007). Our
inquiry is not whether “every conceivable factual offense cov-
ered by a statute” presents a serious potential risk of physical
injury, but rather whether, “in the ordinary case” conduct fall-
ing within the state statute presents such a risk. Id. at 1597.
In the context of state burglary statutes, the Supreme Court
explained:
The main risk of burglary arises not from the simple
physical act of wrongfully entering onto another’s
property, but rather from the possibility of a face-to-
face confrontation between the burglar and a third
party — whether an occupant, a police officer, or a
bystander — who comes to investigate. That is, the
risk arises . . . from the possibility that an innocent
person might appear while the crime is in progress.
Id. at 1594-95.
The Supreme Court has rejected arguments that canons of
statutory construction require an interpretation of the residual
clause that only allows burglary to qualify as a violent felony
4
This circuit also refers to the “residual” clause as the “catchall” clause
or the “otherwise” clause. Jennings, 515 F.3d at 990.
UNITED STATES v. MAYER 3317
under the residual clause if it constitutes generic burglary
under the Taylor definition. In James, the Supreme Court
explained that the residual clause may “cover conduct that is
outside the strict definition of, but nevertheless similar to,
generic burglary.” James, 127 S. Ct. at 1600 (citing Taylor,
495 U.S. at 600 n.9). The Supreme Court has explained that
Congress did not intend the enumerated offenses in the
ACCA to be an exhaustive list of qualifying predicate
offenses, reasoning that Congress singled out the enumerated
offenses because, despite technically being property offenses,
they often created a significant risk of bodily injury. See
James, 127 S. Ct. at 1592-93. Most recently, the Supreme
Court has explained that the four enumerated felonies in
§ 924(e)(2)(B)(ii) “illustrate the kinds of crimes that fall
within the [ACCA’s] scope.” Begay, 128 S. Ct. at 1585.
Although the ACCA does not cover “every crime that pre-
sents a serious potential risk of physical injury to another,” it
does cover crimes “similar” to the ACCA’s listed examples.
Id. (internal quotation marks omitted).
We previously declined to adopt an interpretation of the
residual clause under the categorical approach or the modified
categorical approach to cover offenses that were similar to an
enumerated offense, because such an interpretation would
render the ACCA’s inclusion of the enumerated offenses in
the same section to be “surplusage.” United States v. Fish,
368 F.3d 1200, 1204 (9th Cir. 2004) (noting that an interpre-
tation of “the catchall clause under the categorical approach
to cover possession of a ‘destructive device’ . . . or under the
modified categorical approach to cover possession of a ‘pipe
bomb,’ would render the provision’s specific inclusion of ‘use
of explosives’ in the same section surplusage”). Fish does not,
however, prevent us from finding that a non-enumerated
offense falls under the ACCA’s residual clause when the non-
enumerated offense “is outside the strict definition of, but
nevertheless similar to, generic burglary.” See James, 127
S. Ct. at 1600. Accordingly, we may find that Oregon’s first-
degree burglary statute falls under the ACCA’s residual
3318 UNITED STATES v. MAYER
clause if it does not implicate the statutory construction con-
cerns found in Fish. We conclude that Oregon’s first-degree
burglary statute does not implicate those concerns.
[16] Fish’s conviction for possessing a pipe bomb could not
fall under the ACCA’s residual clause, because the ACCA
explicitly prohibits “use,” but says nothing about “possession”
of explosives, and we could not square this omission with the
residual clause without making the “use” language superflu-
ous. Fish, 368 F.3d at 1204. Mayer’s conviction under Ore-
gon’s first-degree burglary statute, however, does not
implicate the same concern, and is exactly the type of crime
Congress intended to include under the ACCA. Mayer was
convicted of an offense that is very similar, though not identi-
cal, to the generic burglary offense. We do not render any part
of the ACCA superfluous by finding Oregon first-degree bur-
glary similar to generic burglary, and, therefore, consistent
with the ACCA’s residual clause.
The analysis turns on both the plain language of state stat-
utes and how state courts actually apply them. See James, 127
S. Ct. at 1594.5 Mayer’s argument that Oregon’s definition of
burglary does not categorically pose a serious potential risk of
physical injury, because a person may commit the offense in
ways that pose little or no risk of face-to-face confrontation,
is unpersuasive. A person could theoretically be convicted
under section 164.225 based on facts that seem inherently
non-confrontational, such as by entering a building that is not
adapted for overnight accommodation or business (e.g., an
5
It is not clear how narrowly Congress intended the residual clause to
be interpreted. See James, 127 S. Ct. at 1591-93 (explaining that neither
the plain language of the residual clause nor its legislative history sup-
ported a narrow interpretation); see also Taylor, 495 U.S. at 588-90, 596-
99 (explaining that, in enacting the ACCA, Congress was concerned with
offenses that created an inherent potential for harm to people). But cf.
Begay, 128 S. Ct. at 1586 (explaining that Congress did not intend the
residual clause to cover every offense that involved a substantial risk of
physical force against the person or property of another).
UNITED STATES v. MAYER 3319
abandoned structure), while in possession of a burglary tool
or theft device. See State v. Warner, 298 Or. 640 (1985) (first-
degree burglary conviction for breaking into a locked barn
with a metal signpost was reversed on the ground that the
signpost was not a “burglary tool or theft device”). It is
unlikely, under those facts, that the burglar would have a face-
to-face confrontation with an occupant of the building, since
there are no occupants. It is therefore possible to imagine a
scenario in which a violation of Oregon Revised Statutes sec-
tion 164.225 does not pose a realistic risk of confrontation or
injury, as it is in all burglary cases.
[17] The Supreme Court, however, has made it clear that
the risk of face-to-face confrontation stems not only from
encountering the occupant of a building, but also from — for
example — a police officer or bystander who comes to inves-
tigate. See James, 127 S. Ct. at 1594-95. Additionally, the law
does not require “every conceivable factual offense covered
by a statute” to present a serious potential risk of physical
injury. Id. at 1597. Most of the cases applying Oregon
Revised Statutes section 164.225 involve entries into places
that are occupied, or are likely to be occupied, by people. See,
e.g., State v. Kautz, 39 P.3d 937 (Or. Ct. App. 2002) (entry
into workshop located near victims’ home); State v. Sigman,
919 P.2d 45 (Or. Ct. App. 1996) (entry into occupied motor
home); State v. McDonald, 712 P.2d 163 (Or. Ct. App. 1986)
(entry into a travel trailer parked in the owner’s driveway);
State v. Spencer, 545 P.2d 611 (Or. Ct. App. 1976) (entry into
a fishing vessel; defendant conceded that the vessel was a dwell-
ing).6 The risk of a physical confrontation resulting from a
burglar’s entry in these cases is comparable to that posed by
6
There is, however, no case law narrowing the statute to require entry
into a place likely to be occupied by a person. Cf. James, 127 S. Ct. at
1594 (concluding that although the statutory language of Florida’s
attempted burglary statute was broad, the Florida courts had considerably
narrowed it to require an overt act, rather than merely preparatory activity
that posed no real danger of harm to others).
3320 UNITED STATES v. MAYER
a burglar’s entry into a generic “building or structure.” See
James, 127 S. Ct. at 1594-95. A burglar’s entry also typically
involves, much like generic burglary, the kind of “purposeful,
violent, and aggressive conduct” that makes it more likely that
the “offender, later possessing a gun, will use the gun deliber-
ately to harm a victim.” Begay, 128 S. Ct. at 1586.
[18] Under Oregon Revised Statutes section 164.235(2), a
“burglary tool or theft device” is by definition a very danger-
ous object.7 Therefore, even if there is a reduced risk of physi-
cal confrontation (e.g., because the building is abandoned), if
a confrontation does occur then there is a serious potential
risk that it will result in physical injury to another. See United
States v. Rendon-Duarte, 490 F.3d 1142, 1147 (9th Cir. 2007)
(explaining that “conduct involving a dangerous instrument
create[s] significant risks of bodily injury or confrontation
that might result in bodily injury” (brackets in original) (inter-
nal quotation marks omitted)).
For these reasons, the district court did not err by determin-
ing that first-degree burglary under Oregon Revised Statutes
section 164.225 is categorically a “violent felony” under the
ACCA’s residual clause.8 Although our interpretation of the
7
Oregon Revised Statutes section 164.235(2) defines a “burglary tool or
theft device” as “an acetylene torch, electric arc, burning bar, thermal
lance, oxygen lance or other similar device capable of burning through
steel, concrete or other solid material, or nitroglycerine, dynamite, gun-
powder or any other explosive, tool, instrument or other article adapted or
designed for committing or facilitating a forcible entry into premises or
theft by a physical taking”.
8
The district court did not rule on whether Mayer’s first-degree burglary
conviction was generic burglary under the modified categorical approach.
We generally adopt a modified categorical approach once a determination
has been made that an offense does not categorically qualify as a crime of
violence. See Shepard v. United States, 544 U.S. 13, 26 (2005). We then
expand the inquiry to include “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the
UNITED STATES v. MAYER 3321
residual clause encompasses state statutes that define burglary
more broadly than generic burglary, we do not intend to sub-
sume offenses in which there is little risk of physical injury.
The Supreme Court limited the scope of the residual clause to
encompass only those felonies that — in addition to present-
ing a serious potential risk of physical injury — are similar to
the four enumerated felonies and that involve the “deliberate
kind of behavior associated with violent criminal use of fire-
arms.” Begay, 128 S. Ct. at 1587.
[19] We therefore hold that first-degree burglary under
Oregon Revised Statutes section 164.225 categorically poses
a serious potential risk of physical injury to people present in
a dwelling at the time of a burglary, and to people in the
immediate area of a building if a confrontation does occur.
The risk of potential injury due to a face-to-face confrontation
between the burglar and a third party is not lessened simply
because, under Oregon law, the dwelling does not have to be
a generic “building” or “structure,” or because the offense
does not necessarily involve fleeing the scene of a burglary.
“[I]n the ordinary case,” a violation of Oregon Revised Stat-
utes section 164.225 will involve conduct that presents a seri-
ous potential risk of physical injury to another, in a manner
similar to generic burglary. James, 127 S. Ct. at 1597; see
Begay, 128 S. Ct. at 1584-85. Interpreting the ACCA’s resid-
defendant, or to some comparable judicial record of this information.” Id.
We have previously concluded “that generally the modified categorical
approach may be applied in determining whether a conviction qualifies as
a violent felony under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause . . . [even
though] we have expressed doubt [in the past] as to whether the modified
categorical approach applies to the catchall clause in U.S.S.G. § 4B1.2(a),
as well as in § 924(e)(2)(B)(ii).” Jennings, 515 F.3d at 990. Although we
may affirm on any ground supported by the record, see United States v.
Cortez-Arias, 403 F.3d 1111, 1114 n.7 (9th Cir. 2005), we find that an
analysis of the modified categorical approach is unnecessary due to our
determination that the offense categorically qualifies as a crime of vio-
lence under the residual clause.
3322 UNITED STATES v. MAYER
ual clause to include Oregon Revised Statutes section 164.225
does not therefore extend its coverage in an unlimited manner.
B. Mayer’s Prior Drug Convictions
The ACCA defines a “serious drug offense” as “an offense
under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a con-
trolled substance . . . for which a maximum term of imprison-
ment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii) (emphasis added). Mayer contends that his
two prior Oregon convictions for unlawful manufacture and
delivery of marijuana were not “serious drug offenses” under
the ACCA, because Oregon law does not “prescribe” a maxi-
mum term of imprisonment of ten years or more for those
offenses. Mayer reasons that, although the statutory maximum
sentence for these offenses is more than ten years,9 the maxi-
mum sentence that may actually be imposed under Oregon’s
sentencing guidelines is only 90 months.
[20] Mayer’s argument is foreclosed by United States v.
Parry, 479 F.3d 722 (9th Cir. 2007).10 In Parry, we held that,
for purposes of determining whether a prior drug conviction
is a “serious drug offense” under the ACCA, the maximum
sentence “prescribed by law” is that which is set forth by the
statute of conviction, and not by the state sentencing guide-
lines. Id. at 724-26; see also United States v. Murillo, 422
9
Under Oregon Revised Statutes sections 161.605(1), 475.840(1)(a),
and 475.856(2), the statutory maximum sentence for manufacture or deliv-
ery of marijuana is 20 years. Although Mayer’s indictments for these
offenses refer to violations of Oregon Revised Statutes section 475.992,
that provision was subsequently renumbered.
10
The defendant in Parry argued, similar to Mayer in this case, that
“under the Oregon Sentencing Guidelines, no defendant could ever be sen-
tenced to 10 years in prison for delivery or manufacture of a Schedule II
controlled substance . . . regardless of his criminal history. Instead, the
maximum sentence for that crime under the guidelines is 90 months.” 479
F.3d at 724.
UNITED STATES v. MAYER 3323
F.3d 1152, 1155 (9th Cir. 2005) (holding that, for purposes of
determining whether a state criminal conviction is a crime
punishable by a term exceeding one year under 18 U.S.C.
§ 922(g)(1), the maximum sentence is defined by the state
criminal statute, not the maximum possible sentence that
could have been imposed on the defendant under the state’s
sentencing guidelines). We expressly rejected the statutory
construction argument that Mayer now raises, explaining:
It is true that 18 U.S.C. § 922(g) requires that the
predicate 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 “pre-
scribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii).
Although the phrasing differs slightly, we conclude
that neither formulation suggests that we look to sen-
tencing guidelines to the exclusion of the statutes. If
anything, “punishable” would appear to point more
specifically to time spent in prison, while “pre-
scribed by law” would appear to point more to the
statute. If the former phrase requires that we use the
statutory maximum, a fortiori, the latter phrase does
too.
Parry, 479 F.3d at 726.
Although Mayer contends that Parry was wrongly decided,
it is clear that Parry is controlling precedent in our circuit.
See, e.g., United States v. Crampton, 519 F.3d 893, 899 (9th
Cir. 2008) (holding that Parry foreclosed the defendant’s
argument that the maximum sentence “prescribed by law”
was the lower maximum sentence under Oregon’s sentencing
guidelines); United States v. Ankeny, 502 F.3d 829, 839 (9th
Cir. 2007) (same). Even if we agreed with Mayer that Parry
was wrongly decided, a three-judge panel may not overrule
the decision of another panel in the absence of intervening
3324 UNITED STATES v. MAYER
Supreme Court case law that is “clearly irreconcilable.” Mil-
ler, 335 F.3d at 900.
[21] Because Oregon law prescribes a maximum sentence
of ten years or more for Mayer’s prior convictions for unlaw-
ful manufacture and delivery of marijuana, the district court
did not err by finding that those convictions were “serious
drug offenses” under the ACCA. See 18 U.S.C.
§ 924(e)(2)(A)(ii). Accordingly, the district court correctly
imposed the ACCA’s mandatory fifteen year sentence,
because Mayer was a felon having three or more previous
convictions for “a violent felony or a serious drug offense.”
See Jennings, 515 F.3d at 987.
CONCLUSION
We affirm the district court’s denial of Mayer’s motion to
suppress. We also affirm the district court’s imposition of the
ACCA’s mandatory fifteen year minimum sentence.
AFFIRMED.