United States v Perry , 394 F. App'x 356 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 09 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-10049
Plaintiff - Appellee, D.C. No. CR-03-00522-HG
v.
MEMORANDUM*
DENNIZ PERRY, a.k.a Deniz Perry and
Dennis Daqueen Perry,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, Senior District Judge, Presiding
Argued and Submitted June 16, 2010
Honolulu, Hawaii
Before: B. FLETCHER, PREGERSON, and CANBY, Circuit Judges.
Denniz Perry was convicted by a jury of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Perry in
accordance with the fifteen-year mandatory minimum prison term of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), and Perry appealed. In a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
previous decision, we affirmed Perry’s conviction, but we remanded for
resentencing because the district court had erred in relying solely on the
Presentence Report to determine that Perry had three qualifying prior convictions.
See United States v. Perry, 190 F. App’x 571, 574-75 (9th Cir. 2006)
(unpublished). On remand, the government submitted certain documents in
support of its contention that Perry’s two prior convictions for second-degree
burglary and Perry’s prior conviction for promotion of a dangerous drug in the first
degree were qualifying convictions under the ACCA. The district court concluded
that all three convictions qualified and reimposed the ACCA enhancement. Perry
again appeals. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, and we reverse.
We agree with the district court that Perry’s conviction for promotion of a
dangerous drug in the first degree qualifies under the ACCA as a “serious drug
offense.” The ACCA defines “serious drug offense” to include “an offense under
State law, involving . . . distributing . . . 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). Perry pleaded guilty to distributing “One or more
preparations, compounds, mixtures, or substances of an aggregate weight of: (A)
One-eighth ounce or more, containing methamphetamine, heroin, morphine,
2
cocaine or any of their respective salts, isomers, and salts of isomers.” Haw. Rev.
Stat. § 712-1241(1)(b)(ii)(A) (West 1998). Perry does not contest that the
substances included in the statute are controlled substances, and the violation of
section 712-1241 is a class A felony subject to a maximum term of twenty years in
prison, see id. §§ 706-659, 712-1241(2). Thus, the statute categorically is a
“serious drug offense,” regardless of the fact that Perry’s guilty plea did not
specify which drug he had distributed. See Taylor v. United States, 495 U.S. 575,
602 (1990) (considering “only to the fact of conviction and the statutory definition
of the prior offense” to determine whether the offense qualified as a predicate
felony under the ACCA).
We disagree, however, with the district court’s conclusion that Perry’s two
prior burglary convictions qualify as violent felonies. The ACCA defines “violent
felony” to include “any crime punishable by imprisonment for a term exceeding
one year . . . 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). Perry pleaded guilty to two counts of
burglary in the second degree, in violation of Hawai’i Revised Statutes section
708-811. That statute provides that “[a] person commits the offense of burglary in
the second degree if the person intentionally enters or remains unlawfully in a
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building with intent to commit therein a crime against a person or against property
rights.” Haw. Rev. Stat. § 708-811(1) (West 1999). The violation of section 708-
811 is a class C felony, punishable by up to five years in prison. Id. §§ 706-660,
708-811(2).
Second-degree burglary in Hawai’i is not categorically a violent felony. In
United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), we held that the
generic crime of burglary requires entry into “a structure designed for occupancy
that is intended for use in one place.” Id. at 848. The Hawai’i second-degree
burglary statute is not limited the entry of such structures, instead defining
“building” to include movable objects such as vehicles, railway cars, aircraft, and
watercraft. See Haw. Rev. Stat. § 708-800 (West 1999).
Perry’s second-degree burglary convictions also fail to qualify as violent
felonies under the modified categorical approach. Under the modified categorical
approach, we consider whether “judicially recognized documents show that [Perry]
was necessarily convicted of generic burglary.” United States v. Terrell, 593 F.3d
1084, 1092 (9th Cir. 2010) (citing Shepard v. United States, 544 U.S. 13, 15-16
4
(2005)).1 At resentencing, the government introduced Perry’s indictment, plea
agreement, guilty plea, and judgment. These documents do not establish that Perry
burgled an immovable structure. Perry’s indictment merely states that on two
occasions he unlawfully entered a “building”—a term of art defined more broadly
than the generic definition of burglary—located at a particular address. Neither the
plea agreement, the guilty plea, nor the judgment provided additional facts about
the nature of the structures that Perry entered. Thus, “the documents submitted by
the prosecution do not demonstrate that [Perry] was necessarily convicted of
burglary of an unmovable structure, so under the modified categorical approach,
[Perry]’s prior offenses do not fit within the ACCA’s enumerated offenses.” Id. at
1093.
The government also waived any reliance on the ACCA’s residual clause.
Although the government might be correct that, at the time of resentencing, any
reliance on the residual clause was foreclosed by United States v. Fish, 368 F.3d
1200, 1203-04 (9th Cir. 2004), the government has not adequately responded to
advances in the law that have occurred since Perry’s resentencing. On April 18,
2007, the Supreme Court decided James v United States, 550 U.S. 192 (2007),
1
We note that as of the date of this disposition, Terrell’s mandate has not yet
issued. We nonetheless find its reasoning on the application of the modified
categorical approach persuasive.
5
which explained that the residual clause may “cover conduct that is outside the
strict definition of, but nevertheless similar to, generic burglary” and held that
attempted burglary in Florida was a violent felony under the residual clause. Id. at
212. The government filed its answering brief on June 5, 2007, and, although it
cited James, it did not argue that James permitted a finding that Perry’s burglary
convictions qualified as violent felonies under the residual clause.
Then, on June 30, 2008, we decided United States v. Mayer, 530 F.3d 1099(9th Cir. 2008), withdrawn and superseded by 560 F.3d 948 (9th Cir. 2009), cert.
denied, 130 S. Ct. 158 (2009). Relying in part on James, Mayer held that, while
Oregon’s first-degree burglary statute did not meet the generic definition of
burglary, the statute was covered by the ACCA’s residual clause. Mayer, 560 F.3d
at 959-63. Even if there was any doubt after James that the residual clause
potentially could apply to Perry’s case, Mayer erased that doubt.
Nevertheless, the government failed to bring Mayer to our attention, either
through a Federal Rule of Appellate Procedure 28(j) letter or through a motion for
supplemental briefing. The government did not argue that the residual clause
applied until after we ordered supplemental briefing on our own motion, two
months after Mayer came down, on the questions of the effect of Mayer, if any, on
this case, and whether the government waived any reliance on the residual clause.
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Having considered the supplemental briefs and heard oral argument on the
matter, we decline to exercise our discretion to reach the question of the
applicability of the residual clause to Perry’s case. See United States v.
Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir. 2007) (holding that government
waived alternative argument that sentencing enhancement applied when it failed to
raise the argument in its brief); see also Beazer East, Inc. v. Mead Corp., 525 F.3d
255, 264-65 (3d Cir. 2008) (holding that party waived reliance on an intervening
change in law when it failed to inform the court of that change through either a
Rule 28(j) letter or a motion for additional briefing ); United States v. Cheal, 389
F.3d 35, 45 n.10 (1st Cir. 2004) (similar); cf. La.-Pac. Corp. v. ASARCO Inc., 24
F.3d 1565, 1582-83 (9th Cir. 1994) (addressing an intervening change in law
because the plaintiffs promptly brought the change to the attention of the court
through a Rule 28(j) letter). Accordingly, we hold that because Perry’s two
second-degree burglary convictions did not qualify as violent felonies, the district
court erred in applying the ACCA enhancement.2 We vacate Perry’s sentence and
remand for resentencing without the ACCA enhancement.
REVERSED and REMANDED with instructions.
2
In light of our holding, we do not address Perry’s argument that his two
burglary convictions did not occur “on occasions different from one another.” 18
U.S.C. § 924(e)(1).
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