United States v. James Dixon

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10318
Plaintiff–Appellee,
D.C. No.
v. 2:12-cr-00222-
GMN-VCF-1
JAMES EDWARD DIXON,
Defendant–Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted
September 18, 2015—San Francisco, California
Filed November 20, 2015
Before: William A. Fletcher, Marsha S. Berzon, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. DIXON
SUMMARY*
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court found that
the defendant had three prior convictions for “violent
felonies,” as defined by the Armed Career Criminal Act.
The panel held that Calif. Penal Code § 211 (robbery) is
not a categorical match to the ACCA’s definition of “violent
felony” because § 211 criminalizes conduct not included
within the ACCA’s definition. The panel also held that § 211
contains only alternative means and is not divisible. The
panel therefore concluded that a conviction for violating
§ 211 cannot serve as a predicate “violent felony” conviction
for the application of a mandatory minimum sentence under
the ACCA.
COUNSEL
Angela H. Dows, Premier Legal Group, Las Vegas, Nevada,
for Defendant-Appellant.
William Ramsey Reed (argued) and Elizabeth Olson White,
Assistant United States Attorneys, Reno, Nevada, for
Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DIXON 3
OPINION
BEA, Circuit Judge:
James Dixon pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Upon
conviction, and at sentencing, the district court found that
Dixon had three prior convictions for “violent felonies,” as
defined by the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B): two robbery convictions under
California Penal Code (“CPC”) § 211 and one assault-with-a-
deadly-weapon conviction under Nevada Revised Statutes
(“NRS”) § 200.471. As a result, the district court sentenced
Dixon to 15 years of imprisonment, the mandatory minimum
sentence under the ACCA when a defendant has three prior
“violent felony” convictions. See 18 U.S.C. § 924(e)(1).
Dixon appeals the district court’s imposition of the
mandatory minimum sentence, contending that his prior
convictions are not “violent felony” convictions as defined by
the ACCA. We hold that a violation of CPC § 211 does not
meet the ACCA’s definition of “violent felony.” As Dixon
therefore does not have three predicate “violent felony”
convictions, we vacate his mandatory minimum sentence and
remand this case to the district court for resentencing.
I
The relevant facts are not in dispute. In 2012, a Nevada
Highway Patrol officer pulled Dixon over because the
windows of his vehicle were excessively tinted. When the
officer approached the vehicle, he smelled marijuana and saw
a small amount of marijuana in an open pocket of a backpack
inside the vehicle. A second officer arrived at the scene and
searched the vehicle, finding a .38 caliber revolver among
4 UNITED STATES V. DIXON
Dixon’s work tools. Dixon admitted he knew the gun was
there, but claimed he was holding it for a co-worker and had
forgotten about it.
Dixon, who had nine prior felony convictions, pleaded
guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). The district court found that three
of Dixon’s prior convictions qualified as “violent felony”
convictions, as defined by the ACCA: 1983 and 1987
convictions for robbery under CPC § 211 and a 2002
conviction for assault with a deadly weapon under NRS
§ 200.471. As a result, the district court imposed a 15-year
prison sentence, the mandatory minimum sentence under the
ACCA when a defendant has three prior “violent felony”
convictions. See 18 U.S.C. § 924(e)(1). Dixon appeals only
his sentence, claiming, as he did in the district court, that he
does not have three “violent felony” convictions, as defined
by the ACCA, and thus does not qualify for the mandatory
minimum sentence.
II
The ACCA prescribes a mandatory minimum sentence of
15 years of imprisonment when a defendant has three prior
convictions for “violent felonies” or “serious drug offenses.”
18 U.S.C. § 924(e)(1). The district court imposed the
mandatory minimum sentence after finding that Dixon had
three prior convictions for “violent felonies,” as defined by
the ACCA.1 For purposes of the ACCA, a “violent felony” is:
1
The ACCA’s definition of “serious drug offense” is not at issue in this
case.
UNITED STATES V. DIXON 5
[A]ny crime punishable by imprisonment for
a term exceeding one 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, [or]
involves use of explosives . . . .2
18 U.S.C. § 924(e)(2)(B). To determine whether a state
statute of conviction meets the ACCA’s definition of “violent
felony,” a court must apply the categorical approach
announced by the Supreme Court in Taylor v. United States,
495 U.S. 575 (1990). See, e.g., United States v. Grisel,
488 `F.3d 844, 847 (9th Cir. 2007) (en banc). We review de
novo whether a state statute of conviction is a categorical
match to the definition of “violent felony.” See id. at 846.
A. Taylor’s Categorical Approach
Under Taylor’s categorical approach, a court determines
whether a prior conviction under a state statute qualifies as a
“violent felony” conviction under the ACCA by looking
“only to the fact of conviction and the statutory definition of
the prior offense,” not to the facts underlying the conviction.
Id. at 847 (quoting Taylor, 495 U.S. at 602). A violation of a
2
The ACCA’s definition of “violent felony” also contains a catchall
“residual clause” for crimes that “involve[] conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
This clause was recently declared unconstitutionally vague by the
Supreme Court in Johnson v. United States, 135 S. Ct. 2551, 2557 (2015).
We therefore do not consider it as part of the ACCA’s definition of
“violent felony.”
6 UNITED STATES V. DIXON
state statute is categorically a “violent felony” under the
ACCA “only if the [state] statute’s elements are the same as,
or narrower than,” those included in the ACCA’s definition
of “violent felony.” Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). In identifying the elements of a state
statute, a court considers the language of the statute and
judicial opinions interpreting it. Rodriguez–Castellon v.
Holder, 733 F.3d 847, 853 (9th Cir. 2013); United States v.
Bonat, 106 F.3d 1472, 1475–76 (9th Cir. 1997). To evaluate
whether a state statute matches one of the offenses
enumerated in 18 U.S.C. § 924(e)(2)(B)(ii)—burglary, arson,
or extortion—a court compares the elements of the state
statute with the elements of the “generic” crime, or the
offense as commonly understood. See Rodriguez–Castellon,
733 F.3d at 853; see also Descamps, 133 S. Ct. at 2281.
If a state statute defines as criminal more conduct than is
included in the ACCA’s definition of “violent felony,” then
a court must determine whether the state statute can be
divided into violations that constitute “violent felonies” under
the ACCA and others that do not. See Descamps, 133 S. Ct.
at 2283–84; see also Rendon v. Holder, 764 F.3d 1077,
1084–86 (9th Cir. 2014). To be divisible, a state statute must
contain “multiple, alternative elements of functionally
separate crimes.” Rendon, 764 F.3d at 1085 (emphasis
omitted). If a state statute is divisible, a court may then take
into consideration certain documents, such as charging
documents or a plea agreement, to determine whether the
defendant was convicted of violating a prong of the statute
that meets the ACCA’s definition of “violent felony.” Id. at
1083–84. If, however, a state statute defines as criminal more
conduct than is included in the ACCA’s definition of “violent
felony” and is not divisible, then a conviction under that
statute cannot serve as a predicate “violent felony” conviction
UNITED STATES V. DIXON 7
under the ACCA for application of a mandatory minimum
sentence. See Descamps, 133 S. Ct. at 2283–86.
B. Application of the Categorical Approach to CPC § 211
We turn first to whether CPC § 211 is a categorical match
to the ACCA’s definition of “violent felony.” We conclude
that CPC § 211 is not a categorical match because it
criminalizes conduct not included within the ACCA’s
definition of “violent felony.”
CPC § 211 prohibits “the felonious taking of personal
property in the possession of another, from his person or
immediate presence, and against his will, accomplished by
means of force or fear.” We previously determined that CPC
§ 211 is categorically a “crime of violence” under U.S.S.G.
§ 2L1.2 because, in all its applications, CPC § 211 always
constitutes either generic robbery or generic extortion, both
of which are included in U.S.S.G. § 2L1.2’s definition of
“crime of violence.” See United States v. Flores–Mejia,
687 F.3d 1213, 1215–16 (9th Cir. 2012); United States v.
Becerril–Lopez, 541 F.3d 881, 892–93 (9th Cir. 2008). Unlike
U.S.S.G. § 2L1.2, however, the ACCA’s definition of
“violent felony” includes only generic extortion; it omits
generic robbery. See 18 U.S.C. § 924(e)(2)(B)(ii). Thus,
although they are useful precedents, Flores–Mejia and
Becerril–Lopez do not control the outcome of this case.
Generic extortion, which is an enumerated offense
included in the ACCA’s definition of “violent felony,” is
8 UNITED STATES V. DIXON
defined broadly enough3 to encompass many violations of
CPC § 211, but not all. See Becerril–Lopez, 541 F.3d at
891–92. In Becerril–Lopez, we cited People v. Torres, 39 Cal.
Rptr. 2d 103 (Ct. App. 1995), as an example of a case in
which the defendant violated CPC § 211 without committing
extortion. Becerril–Lopez, 541 F.3d at 892. In Torres, the
defendant demanded money from the victims, struck one
victim with a gun, and shot another; the use of force negated
any possible finding that the defendant intended to take the
victims’ property with their consent. See id. (discussing
Torres, 39 Cal. Rptr. 2d at 111–12). Such a violation of CPC
§ 211 would not constitute extortion, which requires the
taking of property to be consensual, but would constitute
generic robbery, which has no consent requirement.4 Id.
Because the ACCA’s definition of “violent felony” lacks
“robbery” by name, any violation of CPC § 211 that does not
constitute extortion must have “as an element the use,
attempted use, or threatened use of physical force against the
person.” 18 U.S.C. § 924(e)(2)(B)(i).5 This element test
3
Generic extortion is defined as “obtaining something of value from
another with his consent induced by the wrongful use of force, fear, or
threats.” Becerril–Lopez, 541 F.3d at 891 (quoting Scheidler v. Nat’l Org.
for Women, Inc., 537 U.S. 393, 409 (2003)).
4
In Becerril–Lopez, we adopted the Fifth Circuit’s definition of generic
robbery: “aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving immediate
danger to the person.” 541 F.3d at 891 (emphasis omitted) (quoting United
States v. Santiesteban–Hernandez, 469 F.3d 376, 380 (5th Cir. 2006)).
5
A state statute may also categorically match the ACCA’s definition of
“violent felony” if it “is burglary, arson, or . . . involves use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). We set these provisions aside,
UNITED STATES V. DIXON 9
contains two additional requirements. First, the “physical
force” used must be “violent force,” or “force capable of
causing physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 140 (2010). Second, the use
of force must be intentional, not just reckless or negligent.
United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir.
2010); see also Leocal v. Ashcroft, 543 U.S. 1, 12–13 (2004).
Although some violations of CPC § 211 not constituting
extortion—such as the conduct described in Torres—would
meet the element test, other violations of CPC § 211 would
not.
In People v. Anderson, the California Supreme Court
clarified that one may violate CPC § 211 by accidentally
using force. 252 P.3d 968, 972 (Cal. 2011). The facts of
Anderson illustrate why CPC § 211 is not a categorical match
to the ACCA’s definition of “violent felony.” Anderson broke
into an unoccupied car that was parked in a parking garage,
intending to steal it. Id. at 970–71. He drove the car out of its
parking spot and attempted to leave the garage, but could not
because the gate was closed and he did not have a way to
open it. Id. After the gate opened, Anderson sped out of the
garage in the stolen car, running over the car’s owner in the
process. Id. Although Anderson claimed this was an accident,
the California Supreme Court upheld his CPC § 211
conviction, ruling that the statute does not require finding the
defendant acted with the intent to use force against another,
as long as the defendant did use force against another person
with the intent to steal. Id. at 971–72.
as they do not, in the ordinary case, apply to the conduct proscribed by
CPC § 211.
10 UNITED STATES V. DIXON
Anderson thus delineates one narrow class of CPC § 211
violations that do not satisfy the ACCA’s definition of
“violent felony”: those in which (1) the taking is not
consensual (thereby failing the definition of generic
extortion); and (2) the defendant uses force against a person,
but only accidentally or negligently, rather than intentionally
(thereby failing the element test of 18 U.S.C.
§ 924(e)(2)(B)(i) as interpreted by Lawrence and Leocal). We
acknowledge that the facts underlying the vast majority of
convictions under CPC § 211 likely meet the definition of
generic extortion, the element test, or both. However,
Taylor’s categorical approach is an “elements-based inquiry,”
not an “evidence-based one.” Descamps, 133 S. Ct. at 2287.
Because Anderson shows that one can realistically violate
CPC § 211 in a manner that is not covered by the ACCA’s
definition of “violent felony,” a violation of CPC § 211 is not
categorically a “violent felony” under the ACCA. See Grisel,
488 F.3d at 850 (noting that a state statute is not a categorical
match to its federal counterpart only if there is a “realistic
probability” that the statute would apply to conduct not
included in the federal definition) (citing Gonzales v.
Duenas–Alvarez, 549 U.S. 183, 193 (2007)).
C. Divisibility of CPC § 211
Having found that CPC § 211 criminalizes conduct not
included in the ACCA’s definition of “violent felony,” we
turn next to whether CPC § 211 is divisible into violations
that meet the ACCA’s definition of “violent felony” and
others that do not. We have little trouble finding that CPC
§ 211 is not divisible.
To be divisible, a state statute must contain “multiple,
alternative elements of functionally separate crimes.”
UNITED STATES V. DIXON 11
Rendon, 764 F.3d at 1085 (emphasis omitted). A statute is not
divisible merely because it is worded in the disjunctive. Id. at
1086. Rather, a court must determine whether a disjunctively
worded phrase supplies “alternative elements,” which are
essential to a jury’s finding of guilt, or “alternative means,”
which are not. Id. at 1085–86. That is, if a statute contains
alternative elements, a prosecutor “must generally select the
relevant element from its list of alternatives. And the jury, as
instructions in the case will make clear, must then find that
element, unanimously and beyond a reasonable doubt.” Id. at
1085 (quoting Descamps, 133 S. Ct. at 2290). But if a statute
contains only alternative means, a jury need not agree as to
how the statute was violated, only that it was. Id.
CPC § 211 has two disjunctively worded phrases—
“person or immediate presence,” “force or fear”—and CPC
§ 212, which defines “fear” as it is used in CPC § 211,
contains several more. The California model jury instructions
explain that the elements of CPC § 211 are: (1) the defendant
took property that was not his own, (2) the property was in
the possession of another person, (3) the property was taken
from the other person or his immediate presence, (4) the
property was taken against the other person’s will, (5) the
defendant used force or fear to take the property or to prevent
the other person from resisting, (6) when the defendant used
force or fear, he intended to deprive the owner of the property
permanently, and (7) the defendant’s intent to take the
property was formed before or during the time he used force
or fear. See Criminal Jury Instructions § 1600 (Jud. Conf. of
Cal. 2015).
The disjunctively worded phrases in the statute and jury
instructions are alternative means, not alternative elements.
To return a guilty verdict on a CPC § 211 charge, a jury must
12 UNITED STATES V. DIXON
find that the elements are satisfied, but jurors need not agree
on the disjunctively worded alternatives. For example, jurors
must agree that element (3) is met—but the jury can return a
guilty verdict even if some jurors believe the defendant took
property from the victim’s person and other jurors believe the
defendant took the property from the victim’s immediate
presence. Similarly, for element (5), a jury can return a guilty
verdict even if some jurors believe the defendant used force
and others believe the defendant used fear. Jurors are also not
required to agree on the defendant’s state of mind as to the
use of force, as long as they find that the defendant had the
intent to steal at the time he used force. Id.; see Anderson,
252 P.3d at 971–72. As a result, CPC § 211 contains only
alternative means and is not divisible. See Rendon, 764 F.3d
at 1084–88.
D. The Mandatory Minimum Sentence
Because CPC § 211 criminalizes conduct not included in
the ACCA’s definition of “violent felony” and is not
divisible, a conviction for violating CPC § 211 cannot serve
as a predicate “violent felony” conviction for the application
of a mandatory minimum sentence under the ACCA. See
Descamps, 133 S. Ct. at 2283. Ignoring Dixon’s 1983 and
1987 convictions for violating CPC § 211, Dixon does not
have three prior “violent felony” convictions, as defined by
the ACCA, and the ACCA’s mandatory minimum sentence
therefore does not apply. See 18 U.S.C. § 924(e)(1) (requiring
three prior convictions for “violent felonies” or “serious drug
offenses”). As a result, we vacate the district court’s
imposition of the mandatory minimum sentence and remand
this case to the district court for resentencing. See, e.g.,
Grisel, 488 F.3d at 852.
UNITED STATES V. DIXON 13
E. Dixon’s Remaining Arguments
Having found that Dixon does not have three predicate
“violent felony” convictions under the ACCA, we do not
reach the question whether Dixon’s 2002 conviction for
violating NRS § 200.471 qualifies as a “violent felony”
conviction. Likewise, we do not address Dixon’s remaining
arguments.
III
Because a violation of CPC § 211 is not a “violent
felony” under the ACCA, the district court incorrectly
determined that it was required to apply the mandatory
minimum sentence. As a result, we vacate Dixon’s sentence
and remand this case to the district court for resentencing.
VACATED AND REMANDED.