United States v. Peterson

FILED
UNITED STATES COURT OF APPEALS OCT 24 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 07-30465
Plaintiff - Appellee, D.C. No. CR-06-60130-HO
District of Oregon,
v. Eugene
JONATHAN BRADLEY PETERSON,
ORDER
Defendant - Appellant.
Before: HAWKINS, FISHER, and BYBEE, Circuit Judges.
The Memorandum Disposition filed October 27, 2009, is hereby ordered
WITHDRAWN.
Appellee's petition for panel rehearing, filed November 10, 2009, is
DENIED as moot.
FILED
NOT FOR PUBLICATION OCT 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30465
Plaintiff - Appellee, D.C. No. CR-06-60130-HO
v.
MEMORANDUM *
JONATHAN BRADLEY PETERSON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted July 15, 2011
Portland, Oregon
Before: HAWKINS, FISHER, and BYBEE, Circuit Judges.
Jonathan Peterson appeals the district court's imposition of a career offender
sentence enhancement pursuant to section 4B1.1(a) of the U.S. Sentencing
Guidelines. Peterson argues that the district court improperly determined that his
prior Oregon state convictions for vehicle flight pursuant to Or. Rev. Stat.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
y 811.540(1)(b)(A) were 'crimes of violence' under the modified categorical
approach of Taylor v. United States, 495 U.S. 575, 602 (1990). We have
jurisdiction under 28 U.S.C. y 1291 and affirm.
In Syµes v. United States, 131 S. Ct. 2267 (2011), the Court held that
Indiana's felony vehicle flight statute categorically qualifies as a 'violent felony'
for purposes of the residual clause of the Armed Career Criminal Act, 18 U.S.C.
y 924(e)(2)(B). Because cases interpreting the term 'violent felony' are
controlling as to whether a particular offense constitutes a 'crime of violence'
under the Guidelines as well, see United States v. Coronado, 603 F.3d 706, 709
(9th Cir. 2010), and because we have held that there is no material distinction
between the Indiana and Oregon vehicle flight statutes, United States v. Snyder,
643 F.3d 694, 699 (9th Cir. 2011), we must affirm Peterson's sentence.
Imposing a career offender sentence does not violate Peterson's due process
right, even though he was not on notice that his prior convictions were
categorically crimes of violence at the time he committed the underlying offense in
2006. In 2006, the law put him on notice that his conduct subjected him to the
career offender enhancement under the modified categorical approach. See United
States v. Kelly, 422 F.3d 889, 895 (9th Cir. 2005). Because our decision today--
that the categorical approach applies--is not so materially different as to be
2
prejudicial to Peterson in formulating a defense at sentencing, affirming his
sentence is not a violation of due process. Peterson's request to remand this case to
the district court for resentencing and consideration of a downward departure is
denied.
AFFIRMED.
3