United States v. Donnie Walton

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50358
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00537-
SVW-1
DONNIE LEE WALTON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted January 8, 2018
Pasadena, California
Filed February 1, 2018
Before: Milan D. Smith, Jr. and Michelle T. Friedland,
Circuit Judges, and Jed S. Rakoff, * Senior District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, Senior United States District Judge
for the Southern District of New York, sitting by designation.
2 UNITED STATES V. WALTON
SUMMARY **
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court imposed an
enhancement under the Armed Career Criminal Act,
18 U.S.C. § 924(e)(1) (ACCA), on the ground that the
defendant had four prior convictions for violent felonies.
The panel held that first-degree robbery under Alabama
Criminal Code § 13A-8-41 is not a violent felony under
ACCA because the force required to support a conviction for
third-degree robbery under Alabama law is not sufficiently
violent to render that crime a violent felony under ACCA,
and the Government has waived any argument that the
statute is divisible.
The panel held that United States v. Dixon, 805 F.3d
1193 (9th Cir. 2015) (holding that California robbery is not
a violent felony under ACCA’s force clause because it can
be committed where force is only negligently used and
because the statute is indivisible), is dispositive as far as
defendant’s conviction for second-degree robbery under
Calif. Penal Code § 211 is concerned.
Because two of the defendant’s four prior convictions are
not violent felonies under ACCA’s force clause, the panel
concluded that the defendant should not have been subject to
ACCA’s fifteen-year mandatory minimum sentence, which
**
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. WALTON 3
requires at least three previous convictions of violent
felonies.
COUNSEL
Jonathan D. Libby (argued), Deputy Federal Public
Defender; Hilary L. Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
L. Ashley Aull (argued), Chief; Michael Anthony Brown,
Assistant United States Attorney; Sandra R. Brown, Acting
United States Attorney; Criminal Appeals Section, United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
OPINION
RAKOFF, Senior District Judge:
Defendant-Appellant Donnie Lee Walton challenges the
district court’s imposition of a sentencing enhancement
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1). ACCA imposes a mandatory minimum sentence
of fifteen years of imprisonment on a person who both
violates Section 922(g) and has three previous convictions
for either a “serious drug offense,” or a “violent felony,” or
some combination of the two. Id.When Walton pleaded guilty to being a felon in
possession of a firearm and ammunition in violation of
18 U.S.C. § 922(g), he had previously been convicted of
(1) assault with a deadly weapon, in violation of California
4 UNITED STATES V. WALTON
Penal Code § 245(a)(1); (2) second-degree robbery, in
violation of California Penal Code § 211; (3) first-degree
robbery in violation of Alabama Criminal Code § 13A-8-41;
and (4) attempted murder, in violation of Alabama Criminal
Code §§ 13A-4-2 and 13A-6-2. The sentencing court found
that all four of these convictions were for violent felonies
under ACCA.
Walton argues on appeal that the district court erred as
to each of these previous convictions. We hold that neither
first-degree robbery under Alabama law nor second-degree
robbery under California law is a violent felony under
ACCA. Since at least two of his four prior non-drug
convictions did not qualify as violent felonies, Walton
should not have been subject to ACCA’s mandatory
sentencing provision. It is therefore unnecessary to decide
whether Walton’s attempted murder and assault with a
deadly weapon convictions are violent felonies. We reverse
and remand.
I.
This court generally reviews de novo whether a state
conviction qualifies under ACCA’s definition of “violent
felony.” United States v. Dixon, 805 F.3d 1193, 1195 (9th
Cir. 2015). The Government nevertheless argues for plain
error review because Walton failed to raise the claims
advanced in his opening brief before the district court. This
is incorrect. Walton argued below that he did not have the
required number of violent felonies necessary for
enhancement under ACCA, and while he did not make the
precise arguments that he makes on this appeal, “it is claims
that are deemed waived or forfeited, not arguments.” United
States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.
2004). Moreover, we are not limited to plain error review
when, as here, “we are presented with a question that is
UNITED STATES V. WALTON 5
purely one of law and where the opposing party will suffer
no prejudice as a result of the failure to raise the issue in the
trial court.” United States v. Evans-Martinez, 611 F.3d 635,
642 (9th Cir. 2010) (quoting United States v. Saavedra-
Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)). The
Government expressly argued in its brief before the
sentencing court that Walton’s prior convictions were all
violent felonies under ACCA, and its arguments on this
purely legal question have been squarely presented at length
before this court. We therefore review de novo whether
Walton’s prior convictions qualify as violent felonies under
ACCA.
II.
ACCA defines a “violent felony” as any 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, involves use
of explosives[;] or [(iii)] otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). These three clauses are
known as the “force clause,” the “enumerated clause,” and
the “residual clause,” respectively. The Government does
not argue that Walton’s convictions qualify under the
enumerated clause, and the Supreme Court has held that the
residual clause is unconstitutionally vague. Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015) (“Johnson II”).
Thus only the force clause is at issue.
Counterintuitive though it may seem, to determine
whether a defendant’s conviction under a state criminal
statute qualifies as a violent felony under the force clause,
we do not look to the underlying facts of the defendant’s
actual conviction. See Mathis v. United States, 136 S. Ct.
6 UNITED STATES V. WALTON
2243, 2251 (2016). Rather, established Supreme Court
precedent requires that we employ a so-called “categorical”
approach, looking “only to the fact of conviction and the
statutory definition of the prior offense” to determine
whether the state statute under which the defendant was
convicted criminalizes only conduct that is a violent felony
under ACCA. Taylor v. United States, 495 U.S. 575, 602
(1990); see also United States v. Grisel, 488 F.3d 844, 847
(9th Cir. 2007) (en banc). Under this approach, “even the
least egregious conduct the statute covers must qualify” as a
violent felony for a defendant’s conviction under that statute
to count toward ACCA’s mandatory sentence. United States
v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006). 1 “State
cases that examine the outer contours of the conduct
criminalized by the state statute are particularly important
because ‘we must presume that the conviction rested upon
nothing more than the least of the acts criminalized’” by that
statute. United States v. Strickland, 860 F.3d 1224, 1226–27
(9th Cir. 2017) (alterations omitted) (quoting Moncrieffe v.
1
Lopez-Solis dealt with interpretation of a sentencing enhancement
under § 2L1.2(b)(3)(E) of the United States Sentencing Guidelines. Id.
at 1203. The commentary to that provision defines a “crime of violence”
as any crime “that has as an element the use, attempted use, or threatened
use of physical force against the person of another.” U.S. Sentencing
Guidelines Manual § 2L1.2, cmt. n.2 (U.S. Sentencing Comm’n 2014).
Similarly, both 18 U.S.C. § 16(a) and the career offender sentencing
guideline, U.S.S.G. § 4B1.2(a)(1), define a “crime of violence” to
include any offense that “has as an element the use, attempted use, or
threatened use of physical force” against the person of another. Cases
interpreting these similar provisions are relevant to interpretation of
ACCA’s force clause. See United States v. Molinar, 876 F.3d 953, 956
n.3 (9th Cir. 2017) (“[T]he force clauses in the ACCA and the Guidelines
remain identical.”); see also United States v. Benally, 843 F.3d 350,
354 (9th Cir. 2016) (“[B]ecause the wording of [18 U.S.C. § 924(c)(3)
and 18 U.S.C. § 16] is virtually identical, we interpret their plain
language in the same manner.” (footnote omitted)).
UNITED STATES V. WALTON 7
Holder, 569 U.S. 184, 190–91 (2013)). If a state’s highest
court has not ruled on the level of force required to support
a conviction, we are bound by reasoned intermediate court
rulings. See Poublon v. C.H. Robinson Co., 846 F.3d 1251,
1266 (9th Cir. 2017) (citing West v. Am. Tel. & Tel. Co.,
311 U.S. 223, 236 (1940)).
If a statute is “divisible” – that is, if it “lists alternative
sets of elements, in essence several different crimes” – we
apply the “modified categorical approach,” under which we
“consult a limited class of documents, such as indictments
and jury instructions, to determine which alternative formed
the basis of the defendant’s prior conviction,” and then apply
the categorical approach to the subdivision under which the
defendant was convicted. United States v. Werle, 815 F.3d
614, 619 (9th Cir. 2016) (quoting Descamps v. United States,
570 U.S. 254, 257 (2013)). If the government fails to
produce those documents, courts determine whether the
“least of [the] acts” described in the statute can serve as a
predicate offense. Johnson v. United States (“Johnson I”),
559 U.S. 133, 137 (2010).
A.
We turn first to evaluating whether Walton’s conviction
for first-degree robbery under Alabama law qualifies as a
violent felony under ACCA. A person commits first-degree
robbery in Alabama if he commits third-degree robbery and
“[i]s armed with a deadly weapon or dangerous instrument”
or “[c]auses serious physical injury to another.” Ala. Code
§ 13A-8-41(a). In turn, a person commits third-degree
robbery in Alabama if, “in the course of committing a theft,”
she either
(1) [u]ses force against the person of the
owner or any person present with intent to
8 UNITED STATES V. WALTON
overcome his physical resistance or physical
power of resistance; or (2) [t]hreatens the
imminent use of force against the person of
the owner or any person present with intent
to compel acquiescence to the taking of or
escaping with the property.
Ala. Code § 13A-8-43(a). An actual taking of property is not
required. Ex parte Verzone, 868 So. 2d 399, 402 (Ala. 2003).
The Government does not contend that first-degree
robbery’s aggravating factors independently render it a
violent felony under ACCA, and for good reason. Third-
degree robbery becomes first-degree if the perpetrator
merely “[i]s armed with a deadly weapon.” Ala. Code § 13A-
8-41(a). The defendant need not ever use or threaten to use
that weapon. See, e.g., Saffold v. State, 951 So. 2d 777, 778–
81 (Ala. Crim. App. 2006) (affirming conviction of first-
degree robbery where police discovered defendant had a gun
hidden in his trench coat but it was never mentioned or seen
during the robbery). Merely possessing a gun, even in the
course of a robbery, does not involve the use, attempted use,
or threatened use of force. See United States v. Molinar,
876 F.3d 953, 957 (9th Cir. 2017); United States v. Parnell,
818 F.3d 974, 980 (9th Cir. 2016) (“The mere fact an
individual is armed, however, does not mean he or she has
used the weapon, or threatened to use it, in any way.”). First-
degree robbery, then, is only a violent felony under ACCA’s
force clause if third-degree robbery is. This question in turn
depends on whether the force required for third-degree
robbery under Alabama law is sufficient to qualify as a
violent crime under ACCA.
In Johnson I, the United States Supreme Court clarified
that the “physical force” required under ACCA’s force
UNITED STATES V. WALTON 9
clause must be “violent force” or “force capable of causing
physical pain or injury to another person.” Johnson I,
559 U.S. at 140. The mere potential for some trivial pain or
slight injury will not suffice. Rather, “violent” force must be
“substantial” and “strong.” Id. In support of this holding, the
Court in Johnson I favorably quoted the definition of
“violent felony” from Black’s Law Dictionary: “a crime
characterized by extreme physical force, such as murder,
forcible rape, and assault and battery with a dangerous
weapon.” Id. at 140–41 (alteration omitted).
Thereafter, the Supreme Court, in United States v.
Castleman, 134 S. Ct. 1405 (2014), further explained the
need for substantial force for a conviction to qualify as a
violent felony under ACCA’s force clause. See id. at 1411–
12. In that case, the Court distinguished “[m]inor uses of
force” that suffice for a “misdemeanor crime of domestic
violence,” such as squeezing an arm hard enough to leave a
bruise, from the “substantial degree of force” required for
violent felonies under ACCA. Id. As the Court noted, minor
uses of force are insufficient both because they are not
“violent” in the generic sense and because it would be
anomalous “to apply the Armed Career Criminal Act to
‘crimes which, though dangerous, are not typically
committed by those whom one normally labels armed career
criminals.’” Id. at 1412 (quoting Begay v. United States,
553 U.S. 137, 146 (2008), abrogated on other grounds by
Johnson II, 135 S. Ct at 2563).
Alabama courts have affirmed robbery convictions
under the “use of force prong” where the “force” used was
not violent under Johnson I. For example, the victim in
Jackson v. State, 969 So. 2d 930 (Ala. Crim. App. 2007)
testified that “the appellant rushed toward her, tugged her
purse a couple of times, yanked her purse off of her arm, and
10 UNITED STATES V. WALTON
ran away.” Id. at 931. The Court of Criminal Appeals held
this “clearly supported a conviction” of third-degree
robbery. Id. at 933. Similarly, the Court of Criminal Appeals
affirmed another conviction where the only force used was a
push that the victim testified was “just enough to knock me
off balance. You know, get me out of the way.” Wright v.
State, 487 So. 2d 962, 964 (Ala. Crim. App. 1985). When
asked, “How far over did he knock you?” the victim replied,
“Just over the counter. I caught myself on the counter.” Id.
at 965. The Alabama court held that this was sufficient
evidence of force to satisfy Alabama’s third-degree robbery
statute. Id. And in another case, the Alabama Court of
Criminal Appeals affirmed a conviction for second-degree
robbery – which, like first-degree robbery, also requires the
commission of third-degree robbery – finding in relevant
part that the crime “constituted robbery in the third degree”
based on the victim’s testimony that “the defendant pushed
or shoved him ‘back into a corner’ to effect an immediate
escape.” Wright v. State, 432 So. 2d 510, 512 (Ala. Crim.
App. 1983).
We have previously held that several other crimes are not
violent felonies under the force clauses of ACCA and the
Sentencing Guidelines because they can be committed by
using minimal levels of force. For example, in Molinar, we
held that Arizona armed robbery was not a crime of violence
under the force clause of the Sentencing Guidelines in light
of an Arizona Supreme Court case holding that, although
snatching an article from a person’s hand is insufficient, “‘if
the article is so attached to the person or clothes as to create
resistance however slight,’ the offense becomes robbery.”
Molinar, 876 F.3d at 957 (quoting Lear v. State, 6 P.2d 426,
427 (1931)); see also United States v. Jones, 877 F.3d 884,
887–88 (9th Cir. 2017) (applying Molinar to Arizona armed
robbery under ACCA).
UNITED STATES V. WALTON 11
Several other circuits have also held that robbery statutes
that can be violated by such minor uses of force are not
violent under ACCA or similar statutes. See, e.g., United
States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016) (Missouri
robbery not a violent crime because it had been committed
by a defendant who “bumped” the victim’s shoulder and
“yanked” her purse away); United States v. Winston,
850 F.3d 677, 685 (4th Cir. 2017) (Virginia robbery not a
violent felony because a conviction was affirmed when “the
victim was carrying her purse tucked under her arm when
the defendant approached the victim from behind, tapped her
on the shoulder, and jerked her around by pulling her
shoulder, took her purse, and ran” (quoting Jones v.
Commonwealth, 496 S.E.2d 668, 669 (Va. Ct. App. 1998))).
This is plainly analogous to the minor force found sufficient
under the Alabama robbery statute in the Jackson case.
We have also held that resisting arrest under Arizona law
is not a crime of violence under the Sentencing Guidelines
because the Arizona Court of Appeals has affirmed the
conviction of a defendant who, while trying to keep from
being handcuffed, “kicked the officers trying to control her,”
causing a “minor scuffle.” United States v. Flores-Cordero,
723 F.3d 1085, 1087–88 (9th Cir. 2013) (quoting State v.
Lee, 176 P.3d 712, 713 (Ariz. Ct. App. 2008)), as amended
(Oct. 3, 2013); see also United States v. Lee, 701 F. App’x
697, 701 (10th Cir. 2017) (Florida resisting arrest offense not
a violent felony where it had been violated by “wiggling and
struggling” and “scuffling” (quoting State v. Green,
400 So.2d 1322, 1323–24 (Fla. Dist. Ct. App. 1981)).
Shoves that merely cause others to briefly lose their balance
or step backward, as in the two Wright cases from Alabama
cited above, are no more violent than these minor scuffles.
The force required to support a conviction for third-degree
robbery in Alabama is therefore not sufficiently violent to
12 UNITED STATES V. WALTON
render that crime a violent felony under ACCA. 2 Because
the Government has not argued that the statute is divisible,
any such argument is waived. See Parnell, 818 F.3d at 981
(declining to conduct a modified categorical analysis
because “the government [did] not argue [that the
defendant’s] conviction [fell] under § 924(e)(2)(B)(ii) or that
the modified categorical approach applie[d]”). Accordingly,
we conclude that Walton’s conviction for Alabama armed
robbery cannot support an enhancement under ACCA.
B.
Turning to Walton’s conviction for second-degree
robbery under California law, California’s robbery statute
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
2
Although several district courts in the Eleventh Circuit have held
that Alabama robbery is a crime of violence under ACCA or similar
statutes, none of these opinions actually engaged in the analysis required
under Johnson I. See United States v. Freeman, No. 11-0303-WS, 2016
WL 4394172, at *2 (S.D. Ala. Aug. 15, 2016) (summarily holding that
second-degree robbery “qualifies as a violent felony under the ACCA’s
elements clause because it has as an element the use, attempted use, or
threatened use of physical force against the person of another” and citing
pre-Johnson I precedent); United States v. Dees, No. 05-0225-WS-B,
2014 WL 2885481, *2 (S.D. Ala. June 25, 2014) (same); Levert v. United
States, No. 2:13-CR-119-VEH, 2016 WL 4070147, at *4 (N.D. Ala. July
29, 2016) (addressing only the argument that the residual clause in the
Sentencing Guidelines is not void for vagueness). In one case, the court
even looked to the specific facts of the underlying conviction rather than
employing the required categorical approach. United States v. Giles,
No. 3:06CR442/LAC/EMT, 2016 WL 4392843, at *2 (N.D. Fla.
July 29, 2016), report and recommendation adopted, No.
3:06CR442/LAC/EMT, 2016 WL 4385852 (N.D. Fla. Aug. 11, 2016)
(“The PSR reflects that the robberies took place with a handgun and a
pistol.” (citations omitted)). These cases are therefore not persuasive.
UNITED STATES V. WALTON 13
force or fear.” Cal. Penal Code § 211. At the time of
Walton’s sentencing, we had held that California robbery
was a violent felony under ACCA’s residual clause. See
United States v. Prince, 772 F.3d 1173, 1176–77 (9th Cir.
2014). However, after the Supreme Court struck down the
residual clause in Johnson II, we revisited that decision and
held that California robbery is not a violent felony under
ACCA’s force clause because it can be committed where
force is only negligently used and because the statute is
indivisible. See Dixon, 805 F.3d at 1197–98. The Dixon
court relied on People v. Anderson, in which the California
Supreme Court affirmed the conviction of a man who, while
stealing a car, accidentally ran over its owner as he sped
away. 252 P.3d 968, 972 (Cal. 2011) (“It was robbery even
if, as he claims, he did not intend to strike [the owner], but
did so accidentally.”).
Dixon is dispositive as far as Walton’s conviction for
second-degree robbery under California law is concerned.
Indeed, the Government offers no counter-argument to
Dixon’s application here beyond simply citing to two cases
that predate Johnson I and so applied the incorrect analysis
and that, moreover, involved different statutes. See Nieves-
Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010); United
States v. David H., 29 F.3d 489 (9th Cir. 1994). We therefore
hold that Walton’s conviction for second-degree robbery
under California law, like his conviction for first-degree
robbery under Alabama law, does not qualify as a “violent
felony” under ACCA’s force clause.
III.
Because two of Walton’s four prior convictions are not
violent felonies under ACCA’s force clause, Walton should
not have been subject to ACCA’s fifteen-year mandatory
minimum sentence, which requires at least three previous
14 UNITED STATES V. WALTON
convictions of violent felonies. 18 U.S.C. § 924(e)(1).
Accordingly, Walton’s sentence must be vacated, and we
need not reach his arguments regarding his convictions for
attempted murder and assault with a deadly weapon.
The sentence is hereby VACATED and the case is
remanded to the district court for resentencing.