United States v. Ashford Spencer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10078
Plaintiff-Appellee,
D.C. No.
v. 1:10-cr-00566-JMS-1
ASHFORD KAIPO SPENCER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
February 13, 2013—Honolulu, Hawaii
Filed July 29, 2013
Before: Susan P. Graber, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Opinion by Judge Bybee
2 UNITED STATES V. SPENCER
SUMMARY*
Criminal Law
Affirming a sentence, the panel held that because the risks
involved in criminal property damage in the first degree
under Hawaii Revised Statutes § 708-820(1)(a) present a
serious potential risk of physical injury to another, and that
risk is similar to the risks involved in arson and burglary in
the ordinary case, a conviction under § 708-820(1)(a) is
categorically a crime of violence under the residual clause of
§ 4B1.2(a)(2), and the defendant is thus subject to the career
offender enhancement under U.S.S.G. § 4B1.1.
The panel held that the defendant’s claim that
§ 4B1.2(a)(2)’s residual clause is unconstitutionally vague is
foreclosed by Supreme Court precedent.
COUNSEL
Pamela O’Leary Tower (argued), Law Office of Pamela
O’Leary Tower, Kenwood, California; Sheryl Gordon
McCloud, Law Offices of Sheryl Gordon McCloud, Seattle,
Washington, for Defendant-Appellant.
Chris A. Thomas (argued), Assistant United States Attorney;
Florence T. Nakakuni, United States Attorney, District of
Hawaii, Honolulu, Hawaii, 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. SPENCER 3
OPINION
BYBEE, Circuit Judge:
Ashford Kaipo Spencer was convicted of two federal
drug-trafficking felonies. At sentencing, the district court
determined that Spencer was a “career offender” under
§ 4B1.1 of the Sentencing Guidelines because Spencer had
two prior convictions for “crimes of violence,” as defined in
§ 4B1.2(a). In making this determination, the district court
applied the “categorical approach” to conclude that Spencer’s
prior conviction for criminal property damage in the first
degree under § 708-820(1)(a) of the Hawaii Revised Statutes
constituted a conviction for a “crime of violence.”
On appeal, Spencer argues that the district court erred in
sentencing him as a career offender because § 708-820(1)(a)
is not a crime of violence as defined by the Sentencing
Guidelines. In the alternative, Spencer argues that the
“residual clause” of the definition of “crime of violence”
contained in § 4B1.2(a)(2), which the district court concluded
applied to him, is unconstitutionally vague.
We agree with the decision of the district court, and
therefore hold that § 708-820(1)(a) is categorically a crime of
violence under the residual clause of § 4B1.2(a)(2) of the
Sentencing Guidelines.1 Spencer’s claim that § 4B1.2(a)(2)’s
residual clause is unconstitutionally vague is foreclosed by
Supreme Court precedent.
1
Since we conclude that § 708-820(1)(a) is categorically a crime of
violence, we need not apply the modified categorical approach.
4 UNITED STATES V. SPENCER
I. FACTS AND PROCEDURAL HISTORY
In 2010, Spencer was convicted of two federal counts of
felonious drug trafficking. The U.S. Probation Office
originally recommended in its draft Presentence Investigation
Report (PIR) that Spencer be treated as a “career offender”
under § 4B1.1 of the Sentencing Guidelines, based on
Spencer’s two prior felony convictions for “crimes of
violence”—(1) kidnaping and robbery in the second degree,
and (2) criminal property damage in the first degree.
The only prior conviction at issue here is Spencer’s
conviction for criminal property damage in the first degree
under § 708-820(1)(a) of the Hawaii Revised Statutes. Haw.
Rev. Stat. § 708-820(1)(a) (1996).
Spencer objected to the categorization of his § 708-
820(1)(a) criminal property conviction as a crime of violence.
In response to Spencer’s objections, the U.S. Probation Office
revised its position in its final PIR, recommending that
§ 708-820(1)(a) not be classified as a crime of violence and
that Spencer not be treated as a career offender. The district
court, however, disagreed. At sentencing, the district court
concluded that Spencer’s § 708-820(1)(a) conviction for
criminal property damage categorically constituted a crime of
violence, as defined in § 4B1.2(a)(2) of the Sentencing
Guidelines, and held that Spencer’s prior convictions
rendered him a “career offender” under § 4B1.1.
Applying the sentencing enhancement based on Spencer’s
status as a career offender, the district court determined that
the sentencing range dictated by the Sentencing Guidelines
was 360–480 months. Without the “career offender” finding,
the Guidelines range would have been 151–188 months. The
UNITED STATES V. SPENCER 5
district court imposed a sentence of 204 months in prison,
significantly below the Guidelines range given the “career
offender” finding. Spencer timely appealed.
II. DISCUSSION
On appeal, Spencer argues that his § 708-820(1)(a)
conviction was not a conviction for a crime of violence, and
claims that he should not have been sentenced as a “career
offender” under the Sentencing Guidelines. Spencer also
argues that the residual clause of the definition of “crime of
violence,” contained in § 4B1.2(a)(2) of the Sentencing
Guidelines, is unconstitutionally vague. We disagree.2
A. Career Offender Claim
As relevant here, the Sentencing Guidelines classify a
defendant as a “career offender” if he “has at least two prior
felony convictions of . . . a crime of violence.” U.S.S.G.
§ 4B1.1(a). Section 4B1.2(a) of the Sentencing Guidelines
defines a “crime of violence” as:
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that—
2
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the
district court’s determination that a conviction constitutes a “crime of
violence” under § 4B1.2(a) of the Sentencing Guidelines de novo. United
States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). We also review de
novo whether a statute is unconstitutionally vague. United States v. Clark,
912 F.2d 1087, 1088 (9th Cir. 1990).
6 UNITED STATES V. SPENCER
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a).
At the time of Spencer’s conviction in 2001, Hawaii
defined criminal property damage in the first degree as
follows:
A person commits the offense of criminal
property damage in the first degree if . . . [t]he
person intentionally damages property and
thereby recklessly places another person in
danger of death or bodily injury . . . .
Haw. Rev. Stat. § 708-820(1)(a) (1996).
The district court held, and both parties agree, that
Spencer’s prior § 708-820(1)(a) conviction for criminal
property damage in the first degree does not qualify as a
conviction involving the “use, attempted use, or threatened
use of physical force against the person of another” as
required by § 4B1.2(a)(1), or as a conviction for one of
specific offenses listed in § 4B1.2(a)(2): “burglary of a
dwelling, arson, or extortion, [or a crime that] involves use of
explosives.” Thus, the question on appeal is whether
Spencer’s conviction under § 708-820(1)(a) qualifies as a
UNITED STATES V. SPENCER 7
conviction for a crime of violence under § 4B1.2(a)’s residual
clause, which includes crimes that “otherwise involve[]
conduct that presents a serious potential risk of physical
injury to another.”
1. Legal Framework
“We use the categorical approach . . . to determine
whether a defendant’s prior conviction satisfies the
Guidelines definition of a crime of violence.” United States
v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). Under the
categorical approach:
we look only to the fact of conviction and the
statutory definition of the prior offense, and
do not generally consider the particular facts
disclosed by the record of conviction. That is,
we consider whether the elements of the
offense are of the type that would justify its
inclusion within the [sentence-enhancing
category], without inquiring into the specific
conduct of this particular offender.
James v. United States, 550 U.S. 192, 202 (2007) (internal
quotation marks and citation omitted). It is not “requir[ed]
that every conceivable factual offense covered by a statute [of
conviction] must necessarily” fit into the sentence-enhancing
category; “[r]ather, the proper inquiry is whether the conduct
encompassed by the elements of the offense [of conviction],
8 UNITED STATES V. SPENCER
in the ordinary case,” fit into the sentence-enhancing
category.3 Id. at 208 (emphasis added).
Based solely on the language of § 708-820(1)(a) and the
residual clause in § 4B1.2(a)(2), “intentionally damag[ing]
property and thereby recklessly plac[ing] another person in
danger of death or bodily injury,” Haw. Rev. Stat. § 708-
820(1)(a) (1996), would seem, in the ordinary case, to
“involve[ ] conduct that presents a serious potential risk of
physical injury to another,” U.S.S.G. § 4B1.2(a)(2),
regardless of Spencer’s specific conduct in violating § 708-
820(1)(a). But the Supreme Court’s precedent dictates that
the analysis is not so straightforward. The Court has
interpreted the nearly identical residual clause of the
definition of “violent felony” in the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B), four times in recent
years. See Sykes v. United States, 131 S. Ct. 2267 (2011)
(holding that knowing or intentional flight from law
enforcement by vehicle under Indiana law is a violent felony
under ACCA); Chambers v. United States, 555 U.S. 122
(2009) (holding that failure to report to prison under Illinois
3
The Supreme Court recently framed the categorical approach as
viewing “the offense[] . . . in the abstract[] to see whether the . . . state
offense necessarily involved facts” meeting the definition in the federal
statute (here the Sentencing Guidelines definition of “crime of violence”),
with the caveat that there must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls
outside the [federal definition].” Moncrieffe v. Holder, 133 S. Ct. 1678,
1684–85 (2013) (internal quotation marks and alterations omitted); see
also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). We are not
sure how a “realistic probability” standard might differ, if at all, from
looking at the “ordinary case.” But we apply the “ordinary case” standard
here because the Court has applied the “ordinary case” standard in cases
similar to ours. See, e.g., Sykes v. United States, 131 S. Ct. 2267, 2278–79
(2011).
UNITED STATES V. SPENCER 9
law is not a violent felony under ACCA); Begay v. United
States, 553 U.S. 137 (2008) (holding that driving under the
influence of alcohol under New Mexico law is not a violent
felony under ACCA); James, 550 U.S. 209 (holding that
attempted burglary under Florida law is a violent felony
under ACCA). These opinions make clear that interpretation
of ACCA’s residual clause must be guided not only by the
language of the residual clause itself, but also by the offenses
enumerated in ACCA’s “violent felony” definition just before
the residual clause. See Sykes, 131 S. Ct. at 2273; Chambers,
555 U.S. at 127–29; Begay, 553 U.S. at 142–44; James,
550 U.S. at 203. Since we make “no distinction between the
terms ‘violent felony’ [as defined in the ACCA] and ‘crime
of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing
Guidelines] for purposes of interpreting the residual
clause[s],” Crews, 621 F.3d at 852 n.4; see also id. at 855–56,
the enumerated offenses that precede the residual clause in
the “crime of violence” definition in the Guidelines must
guide our interpretation of the residual clause in § 4B1.2(a)(2)
as well.
We set out the framework for analyzing whether a
conviction under a state statute, such as § 708-820(1)(a), is a
conviction for a “crime of violence” in United States v. Park,
649 F.3d 1175 (9th Cir. 2011). For the conviction to
constitute a conviction for a crime of violence, “[f]irst, the
‘conduct encompassed by the elements of the offense, in the
ordinary case,’ must ‘present[] a serious potential risk of
physical injury to another,’” id. at 1177–78 (quoting James,
550 U.S. at 208), and “[s]econd, the state offense must be
‘roughly similar, in kind as well as in degree of risk posed’ to
those offenses enumerated at the beginning of the residual
clause—burglary of a dwelling, arson, extortion, and crimes
10 UNITED STATES V. SPENCER
involving explosives,’” id. at 1178 (quoting Begay, 553 U.S.
at 143).
The inquiry under Park’s first prong is straightforward.
But the second requirement—whether the state offense is
“‘roughly similar, in kind as well as in degree of risk posed’
to those offenses enumerated at the beginning of the residual
clause,” id. at 1178 (quoting Begay, 553 U.S. at 143)—is
more complicated, and must be addressed in light of the
Supreme Court’s quartet of ACCA cases.
Beginning in James, the Court held that this second
inquiry should focus on whether the risk posed by the state
offense “is comparable to that posed by its closest analog
among the enumerated offenses.” James, 550 U.S. at 203
(emphasis added). Under this test, the Court explained, “it
would be sufficient to establish . . . that the unenumerated
offense presented at least as much risk as one of the
enumerated offenses.” Id. at 210. But in Begay, the Court did
not apply the “closest analog” test. See Begay, 553 U.S. at
148–49 (Scalia, J., concurring in the judgment). Rather, after
assuming that the state offense of driving under the influence
“presents a serious potential risk of physical injury to
another,” Begay, 553 U.S. at 141 (maj. op.), the Court
concluded that the state offense was not categorically a
violent felony under the ACCA because it “differs from the
example crimes—burglary, arson, extortion, and crimes
involving the use of explosives” since it does not “involve
purposeful, violent, and aggressive conduct,” id. at 144–45
(internal quotation marks omitted). Then, in Chambers, the
Court again ignored the “closest analog” test set forth in
James, opting to apply Begay’s “purposeful, violent, and
aggressive conduct” formulation instead. Chambers, 555 U.S.
at 128.
UNITED STATES V. SPENCER 11
Although Begay and Chambers seem to suggest that the
“purposeful, violent, and aggressive” test is dispositive as to
the second requirement set forth in Park, the Court
disparaged this reading in its most recent ACCA case, Sykes.
In Sykes, the Court asserted that the dispositive inquiry is the
level of risk posed by the prior conviction at issue as
compared to the level of risk posed by the enumerated
offenses. Sykes, 131 S. Ct. at 2275–76. The Court noted that
“[i]n many cases the purposeful, violent, and aggressive
inquiry will be redundant with the inquiry into risk,” and
explained that the result in Begay was dependent on the
nature of the state offense at issue there, namely, that driving
under the influence is a strict liability crime. Id. In contrast,
since the state offense of vehicle flight in Sykes required
knowing or intentional conduct, “risk levels provide[d] a
categorical and manageable standard that suffice[d] to resolve
the case.” Id. Thus, the Court in Sykes held that Begay’s
“purposeful, violent, and aggressive formulation” is only
dispositive in cases involving a strict liability, negligence, or
recklessness offense.4 It does not apply to intentional crimes.5
4
The majority of our sister circuits have read Sykes as we do here. See,
e.g., United States v. Bartel, 698 F.3d 658, 662 (8th Cir. 2012) (“The
[Sykes] Court held . . . that only crimes akin to ‘strict-liability, negligence,
and recklessness crimes’ required the ‘purposeful, violent, and aggressive
formulation.’”), cert. denied, 133 S. Ct. 1481 (2013); Harrington v. United
States, 689 F.3d 124, 135–36 (2d Cir. 2012) (“In Sykes, the Court clarified
that in cases involving intentional criminal conduct, the focus of judicial
inquiry should remain on the risk assessment specific in the ACCA’s text
. . . .”); United States v. Chitwood, 676 F.3d 971, 979 (11th Cir. 2012)
(“Sykes makes clear that Begay’s ‘purposeful, violent, and aggressive’
analysis does not apply to offenses that are not strict liability, negligence,
or recklessness crimes . . . .”), cert. denied, 133 S. Ct. 288 (2012); United
States v. Meeks, 664 F.3d 1067, 1070 (6th Cir. 2012) (“The Supreme
Court has recently suggested that Begay’s ‘purposeful, violent, and
aggressive conduct’ inquiry should be limited to crimes based on strict
12 UNITED STATES V. SPENCER
2. Analysis
a. Serious potential risk of physical injury.
The first requirement is satisfied in Spencer’s case. It
seems relatively apparent that “intentionally damag[ing]
property and thereby recklessly plac[ing] another person in
danger of death or bodily injury,” Haw. Rev. Stat. § 708-
820(1)(a) (1996), in the ordinary case, “involves conduct that
presents a serious potential risk of physical injury to another,”
U.S.S.G. § 4B1.2(a)(2). Although the two provisions are not
identical, and the Sentencing Guidelines use the word
“serious” while § 708-820(1)(a) does not, “metaphysical
liability, negligence, and recklessness . . . .”); United States v. Rodriguez,
659 F.3d 117, 119–20 (1st Cir. 2011) (“Where the prior felony has a
‘stringent mens rea requirement,’ . . . Begay provides no shelter.”); United
States v. Smith, 652 F.3d 1244, 1248 (10th Cir. 2011) (“Where the felony
at issue is ‘not a strict liability, negligence, or recklessness crime’ the test
is not whether the crime was ‘purposeful, violent, and aggressive’ but
whether it is ‘similar in risk to the listed crimes.’”). But see United States
v. Mobley, 687 F.3d 625, 634 (4th Cir. 2012) (“While the Supreme Court
[in Sykes] focused primarily on the risk inherent in the act of fleeing arrest,
it nevertheless recognized the relevance of the Begay [purposeful, violent,
and aggressive inquiry] . . . .”), cert. denied, 133 S. Ct. 888 (2013).
5
In Park, which involved the intentional crime of first-degree burglary,
we emphasized the “purposeful, violent, and aggressive” formulation in
conducting the second step of the categorical analysis. 649 F.3d at 1180.
Although Park could be read to require application of the Begay
formulation as part of the second step of the categorical test, the better
reading of Park is that it used the “purposeful, violent, and aggressive”
test only because it recognized, as the Supreme Court did in Sykes, that
this analysis tends to produce the same result as the inquiry into risk. Id.
at 1180 (explaining that “‘[i]n many cases the purposeful, violent, and
aggressive inquiry will be redundant with the inquiry into risk’” (quoting
Sykes, 131 S. Ct. at 2275)).
UNITED STATES V. SPENCER 13
certainty” of physical injury is not required under the
definition in the Sentencing Guidelines. James, 550 U.S. at
207. Rather, the “residual provision speaks in terms of a
‘potential risk,’” and “potential” and “risk” are “inherently
probabilistic concepts.” Id. “Indeed, the combination of the
two terms suggests that Congress intended to encompass
possibilities even more contingent or remote than a simple
‘risk’ . . . .” Id. at 207–08.
In contrast, the Hawaiian statutory provision requires the
conduct in question to actually and recklessly place another
person in danger of death or bodily injury. At least some risk
of death or bodily injury must actually be created, and the risk
must be significant enough that the creation of the risk is
reckless, meaning that the defendant “consciously disregards
a substantial and unjustifiable risk that his conduct will cause
such a result.” Haw. Rev. Stat. § 702-206(3)(c). Moreover, a
risk is “substantial and unjustifiable” under the statute only if
“the disregard of the risk involves a gross deviation from the
standard of conduct that a law-abiding person would observe
in the same situation.” Id. § 702-206(3)(d).6 Of course, the
“in danger of” language in § 708-820(1)(a) is also
probabilistic, but conduct that actually places another person
in sufficient danger of death or bodily injury to be deemed
reckless under Hawaiian law—such that there is a conscious
disregard of risk in gross deviation from the standard of
conduct that a law-abiding person would observe—will, in
the ordinary case, at least present a “serious potential risk of
physical injury to another.”
6
These provisions do not seem to have been amended since 1986, so
they applied at the time of Spencer’s § 708-820(1)(a) offense.
14 UNITED STATES V. SPENCER
b. Similarity of risk posed by state offense to
the enumerated offenses in U.S.S.G.
§ 4B1.2(a)(2).
The second requirement—that the state offense be
“‘roughly similar, in kind as well as in degree of risk posed’
to those offenses enumerated at the beginning of the residual
clause,’” Park, 649 F.3d at 1178 (quoting Begay, 553 U.S. at
143)—presents a more difficult question. Because a
conviction under § 708-820(1)(a) requires intentional damage
to property, in light of Sykes, our inquiry must be focused on
risks. See Sykes, 131 S. Ct. at 2275–76; Park, 649 F.3d at
1178. That is, the question we must answer under the second
prong is whether intentional property damage under § 708-
820(1)(a), which involves a conscious disregard of substantial
or unjustifiable risk that the damage will put someone in
danger of death or bodily injury, involves risks similar to
burglary, extortion, arson, and crimes involving use of
explosives in the ordinary case. See Sykes, 131 S. Ct. at 2277.
We hold that it does.
The risk involved in Hawaii’s offense of criminal
property damage in the first degree, under § 708-820(1)(a), is
comparable to the risk involved in the enumerated offense of
arson. The Supreme Court has indicated that arson is deemed
a violent felony because it involves the “intentional release of
a destructive force dangerous to others.” Sykes, 131 S. Ct. at
2273. Likewise, the crime of property damage in the first
degree requires intentional destruction of property, which
necessarily involves the intentional release of a destructive
force; § 708-820(1)(a) is just less clear about what that
destructive force is. Although destroying property could
potentially involve a force much less destructive or dangerous
than fire, the language of § 708-820(1)(a) specifically
UNITED STATES V. SPENCER 15
requires that the force put a person “in danger of death or
bodily injury.” As explained, in so doing the perpetrator must
consciously disregard a risk of death or bodily injury that is
substantial or unjustifiable—in gross deviation from the
standard a law-abiding person would follow. This is more risk
than the offense of arson requires.
As defined in Begay, arson is “causing a fire or explosion
with ‘the purpose of,’ e.g., ‘destroying a building of another’
or ‘damaging any property to collect insurance.’” Begay,
553 U.S. at 145 (quoting ALI Model Penal Code § 220.1(1)
(1985)) (alterations omitted). Similarly, we have described
the modern, generic definition of arson as “willful and
malicious burning of property.” United States v.
Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir. 2005)
(internal quotation marks omitted); see also United States v.
Doe, 136 F.3d 631, 634 (9th Cir. 1998). These definitions of
arson do not require that a person actually or recklessly be
placed in danger of death or bodily injury. Rather, arson is
classified as a dangerous felony because we know that fire is
generally dangerous to others, see Sykes, 131 S. Ct. at 2273,
and common sense indicates that setting fire to someone’s
home or a building increases the risk that a person will be
injured by the fire.
In contrast, § 708-820(1)(a) includes the risk element in
the statute—the intentional release of the destructive force
damaging property must “place[] another person in danger of
death or bodily injury.” Like vehicular flight in Sykes,
criminal property damage in the first degree is similar to
arson because it “makes a lack of concern for the safety of
property and persons . . . an inherent part of the offense,”
such that the “perpetrator’s indifference to the[] collateral
16 UNITED STATES V. SPENCER
consequences [of his actions] has violent—even
lethal—potential for others.” Id.
The structure of Hawaii’s criminal property damage
scheme also indicates that § 708-820(1)(a) was intended to
prohibit actions creating risks comparable to, and even
greater than, some crimes of arson. At the time Spencer was
convicted, criminal property damage was divided into three
degrees in Hawaii: it was criminal property damage in the
first degree to “intentionally damage property” in a way that
“recklessly places another person in danger of death or
bodily injury,” Haw. Rev. Stat. § 708-820(1)(a) (1996)
(emphases added); it was criminal property damage in the
second degree to “intentionally damage[] the property of
another, without the other’s consent, by the use of widely
dangerous means,” id. § 708-821(1)(a) (emphases added);
and it was criminal property damage in the third degree to
“recklessly damage[] the property of another, without the
other’s consent, by the use of widely dangerous means,” id.
§ 708-822 (1)(a) (emphasis added). The second and third
degree crimes did not require that the property damage put
someone in “danger of death or bodily injury,” but rather,
required that the property damage be accomplished through
“widely dangerous means.” “Widely dangerous means” was
defined to include “explosion, fire, flood, avalanche, collapse
of building, poison gas, radioactive material, or any other
material, substance, force, or means capable of causing
potential widespread injury or damage.” Id. § 708-800.
The current Commentary to Hawaii’s criminal property
damage scheme explains that the legislature’s objective in
creating the criminal property damage scheme was to
“provide a unified treatment of offenses relating to property
damage” and “[d]ispense[] with . . . archaic labels such as
UNITED STATES V. SPENCER 17
‘arson.’” Haw. Rev. Stat. §§ 708-820 to -823 cmt. Under this
unified scheme, criminal property damage in the second
degree was intended to “incorporate[] the traditional offense
of arson,” id.,7 since it prohibits intentional destruction of
property by means of fire, see id. § 708-821(1)(a); see also id.
§ 708-800. The second degree offense also broadened the
crime of arson to include similarly destructive, “widely
dangerous means.” See id. § 708-821(1). The “widely
dangerous means” of “explosion, . . . flood, avalanche,
collapse of building, poison gas, radioactive material” are
arguably as dangerous as fire,8 and the residual clause of the
“widely dangerous means” definition requires that any other
force involved in destroying property be “capable of causing
potential widespread injury or damage.” Id. at § 708-800.
Thus, the second degree offense criminalized the traditional
7
Although this is the current version of the Commentary, it is pertinent
to the 1996 statute under which Spencer was convicted because it explains
the history of the criminal property damage scheme. Curiously, the
current Commentary says that criminal property damage in the second
degree incorporates the offense of arson. This makes little sense because
the current version of property damage in the second degree, § 708-
821(1), states that the damage to the property must be committed “by
means other than fire” and the current statutory scheme has separate
provisions for arson. See Haw. Rev. Stat. § 708-8251 to -8254. The 1996
statute under which Spencer was convicted, however, did not exclude fire,
and the provisions criminalizing arson separately were not added until
2006. See 2006 Haw. Sess. Laws 181. Thus, it seems likely that in stating
that § 708-821(1) incorporated the traditional offense of arson, the
Commentary was actually referring to the earlier versions of the statute,
like the one under which Spencer was convicted.
8
Notably, property damage in the second degree also includes
intentional damage by means of explosives—similar to the enumerated
offense of a crime “involv[ing] the use of explosives.” U.S.S.G.
§ 4B1.2(a)(2).
18 UNITED STATES V. SPENCER
offense of arson and offenses involving risks comparable to
arson.9
The fact that criminal property damage in the second
degree incorporated the traditional offense of arson and
criminalized other offenses involving similarly destructive
forces with risks comparable to arson strongly implies that
criminal property damage in the first degree involves risks
that are at least comparable to, if not greater than, some
crimes of arson. Crimes are generally divided into degrees
based on levels of severity. Although this might not
necessarily mean that the risk of harm is greater in a first
degree crime than in a second degree crime, the Commentary
to the statute explains that this is the case for criminal
property damage: the degrees of criminal property damage
are “gradations of penalty depending both on: (1) the
culpability of the actor (i.e., whether the actor acts
intentionally or merely recklessly), [and] (2) the means used
(i.e., whether the means present potential danger of
widespread damage to persons or property).” Haw. Rev. Stat.
§§ 708-820 to -823 cmt. Criminal property damage in the
first degree clearly involves greater risk of harm to persons
than does the second degree crime because it expressly
requires that a person actually be in danger of injury. The
Commentary explains:
Criminal property damage in the first
degree . . . presents the most aggravated form
of property damage: damage which carries
with it an incidental risk of danger to the
person. Under former formulations of
9
We express no view on whether the second degree offense constitutes
a “crime of violence” under U.S.S.G. § 4B1.2(a).
UNITED STATES V. SPENCER 19
property offenses, arson, which is sometimes
regarded as an offense against the person, was
regarded as the most serious property offense
deserving the most severe sanction. Yet actual
risk of danger to another was not required for
conviction of arson, and it is possible to think
of many cases in which, although fire is not
the method used in causing the damage, actual
risk to the safety of another would result from
property damage.
Id. The intent behind § 708-820(1)(a) was to separate the
very worst forms of arson—those actually endangering a
person—as well as other crimes involving damage to property
that created a similar risk. Thus, not only does § 708-
820(1)(a) criminalize risks comparable to arson, it
criminalizes the very worst forms of arson, those with actual
risk of injury.
Criminal property damage in the first degree thus involves
risks that are, at least, comparable to arson.
In addition to arson, criminal property damage in the first
degree also involves risk comparable to the enumerated crime
of burglary. Burglary “is dangerous because it can end in
confrontation leading to violence.” Sykes, 131 S. Ct. at 2273;
see also James, 550 U.S. at 199 (reasoning that “the most
relevant common attribute of [all of] the enumerated offenses
. . . is . . . that all of these offenses, while not technically
crimes against the person, nevertheless create significant risks
of bodily injury or confrontation that might result in bodily
injury”). With § 708-820(1)(a), criminal property damage in
the first degree, putting someone in danger of injury by
destroying property creates a clear “possibility of a face-to-
20 UNITED STATES V. SPENCER
face confrontation” because the person who is threatened with
injury might defend himself or retaliate against the
perpetrator. James, 550 U.S. at 203. Moreover, with criminal
property damage, there is more than just “the possibility [that
there is in burglary] that an innocent person might appear
while the crime is in progress,” id.; since criminal property
damage requires that a person is actually put at risk of death
or bodily injury, a person must actually be nearby. In that
sense, criminal property damage “presents more certain risk
as a categorical matter than burglary.” Sykes, 131 S. Ct. at
2274. “Unlike burglaries, [criminal property damage] by
definitional necessity,” id., occurs in a way that “places
another person in danger of death or bodily injury,” Haw.
Rev. Stat. § 708-820(1)(a). Thus, criminal property damage
in the first degree involves risks comparable to burglary in
the ordinary case.
Admittedly, in the ACCA cases considered by the
Supreme Court, it was much easier to conceptualize the
“ordinary case” for the crimes at issue—attempted burglary
(James), DUI (Begay), failure to report to prison (Chambers),
and vehicle flight (Sykes). With this ordinary case in mind,
additional information about the level of risk involved could
be gleaned from common experience. See, e.g., Sykes,
131 S. Ct. at 2274 (“It is well known that when offenders use
motor vehicles as their means of escape they create serious
potential risks of physical injury to others.”); James, 550 U.S.
at 204 (“[T]he risk posed by an attempted burglary . . . may
be even greater than that posed by a typical completed
burglary. . . . [A]ttempted burglaries often [involve outside
intervention]; indeed, it is often just such outside intervention
that prevents the attempt from ripening into completion.”).
The more monolithic nature of the crimes at issue in the
ACCA cases also enabled the use of statistical studies to
UNITED STATES V. SPENCER 21
compare risk levels. See, e.g., Sykes, 131 S. Ct. at 2274
(discussing an International Association of Chiefs of Police
study on police pursuits and resulting injuries); Chambers,
555 U.S. at 129–30 (discussing a United States Sentencing
Commission report containing statistics on violent activity
during prison escapes and failure-to-report situations); see
also Sykes, 131 S. Ct. at 2274 (“Although statistics are not
dispositive, here they confirm the commonsense conclusion
that Indiana’s vehicular flight crime is a violent felony.”).
However, envisioning the “ordinary case” in the abstract is
less crucial where, as here, the risk of danger to another
person is built into the statute because the crime will involve
the level of risk required by the statute every time and not just
“ordinarily.” Indeed, the Second Circuit held that a state
conviction for unlawful restraint categorically fell within the
ACCA residual clause, even though it is hard to “know how
first-degree unlawful restraint is committed in the ‘ordinary
case,’” because the text of the state statute “effectively tracks
the language of the ACCA’s residual clause” by requiring
that the crime exposed the victim “to a substantial risk of
physical injury,” and state case law confirmed that the state
offense involved serious risks similar to burglary. See
Harrington v. United States, 689 F.3d 124, 132–35 & n.6 (2d
Cir. 2012).
A comprehensive survey of Hawaii cases involving
convictions under § 708-820(1)(a) also confirms that criminal
property damage in the first degree involves risks of injury
comparable to the enumerated offenses in the ordinary case.10
10
Although some of these defendants were prosecuted or convicted
under a slightly different version of the statute than Spencer was, all of
these statutes required the same basic elements of intentional property
damage that places another person in risk of death or bodily injury. The
22 UNITED STATES V. SPENCER
A large number of the Hawaii cases actually involved arson
or some form of intentionally setting fire to property. See,
e.g., State v. Ganal, 917 P.2d 370, 375–76 (Haw. 1996)
(defendant set fire to his place of employment, a plant that
operates twenty-four hours a day with people working at all
hours); State v. Baker, 691 P.2d 1166, 1167 (Haw. 1984) (per
curiam) (defendant set a boarding house on fire, almost
completely destroying it); State v. Sadino, 642 P.2d 534, 535
(Haw. 1982) (per curiam) (defendant set a fire to a hotel
room, killing two men); State v. Yamamoto, 216 P.3d 127, at
*1 (Haw. Ct. App. 2009) (unpublished) (defendant, who
wielded a spear gun, shattered the windows of a car with a
hammer or a stick while a family was in it, and then squirted
gasoline through the shattered window on a man sitting in the
driver’s seat, and tossed a book of matches inside, setting the
man and the car on fire); State v. Armstrong, 149 P.3d 811, at
*1–2 (Haw. Ct. App. 2006) (unpublished) (defendant lit his
girlfriend’s parked car on fire, “engulf[ing it] in flames”
while four people were standing across the street). The risks
involved in these cases are obviously comparable to the risks
involved in the enumerated offense of arson.
Many of the Hawaii cases also involved vehicular flight
and violent police confrontations. See, e.g., State v. Plichta,
172 P.3d 512, 516 (Haw. 2007) (defendant accelerated a van
“vigorously . . . into [a] police cruiser” that was blocking his
exit twice, knocking the car back “roughly fifteen feet”);
State v. Anthony, No. 29998, 2012 WL 540092, at *3 (Haw.
Ct. App. Feb. 17, 2012) (unpublished) (defendant attempting
only material difference in the statute over time is that after Spencer’s
conviction, in 2006, § 708-820(1)(a) was amended to exclude damage by
means of fire and a separate arson statute was passed. See 2006 Haw.
Sess. Laws 181.
UNITED STATES V. SPENCER 23
to escape police drove a truck into a police officer’s vehicle
three times while the officer was in the car); State v.
Masaoka, 196 P.3d 324, at *3 (Haw. Ct. App. 2008)
(unpublished) (defendant attempting to escape police
“barrel[ed]” between the middle and fast lanes on the freeway
in a van, side swiping and hitting thirteen vehicles, several of
which “sustained significant damage”). As the Court held in
Sykes, vehicular flight is similar to burglary because it can
end in confrontation leading to violence since flight demands
pursuit. 131 S. Ct. at 2273–74. Moreover, “[b]etween the
confrontations that initiate and terminate the incident, the
intervening pursuit creates high risks of crashes.” Id. at 2274.
Indeed, vehicular flight “presents more certain risk as a
categorical matter than burglary” because, “[u]nlike
burglaries, vehicle flights from an officer by definitional
necessity occur when police are present . . . and are effected
with a vehicle that can be used in a way to cause serious
potential risk of physical injury to another.” Id.
The remaining Hawaii cases consisted of violent
confrontations involving cars. See State v. Birdsall, 960 P.2d
729, 730 (Haw. 1998) (defendant rammed a car with three
women in it with his Jeep Cherokee); State v. Pang, 226 P.3d
523, at *1–2 (Haw. Ct. App. 2010) (unpublished) (defendant
hit the roof of a car with a baseball bat and shattered the
windows while a man was in it, threatening to kill him).
These cases also involved risk of confrontation similar to
burglary. Sykes, 131 S. Ct. at 2273–74.
Although Spencer can imagine various ways to violate the
statute that involve risks that are not comparable to arson and
burglary, this “does not disprove that [criminal property
damage] is dangerous in the ordinary case. It is also possible
to imagine committing [the enumerated offenses] . . . under
24 UNITED STATES V. SPENCER
circumstances that pose virtually no risk of physical injury”
or confrontation. Id. at 2281 (internal quotation marks and
citation omitted, emphasis added); see James, 550 U.S. at
207–08. Here, the text of the statute, the statutory scheme,
and Hawaii cases all confirm that criminal property damage
involves risks comparable to arson and burglary in the
ordinary case. Section § 708-820(1)(a) thus meets both of
Park’s prongs.
Because the risks involved in criminal property damage
in the first degree present a serious potential risk of physical
injury to another, and that risk is similar to the risks involved
in arson and burglary in the ordinary case, we hold that
Spencer’s prior conviction under § 708-820(1)(a) was a crime
of violence as defined in § 4B1.2(a)(2). Spencer is thus
subject to the “career offender” enhancement under § 4B1.1
of the Sentencing Guidelines.
B. Void for Vagueness Claim
Spencer also argues that the residual clause in
§ 4B1.2(a)(2) of the Sentencing Guidelines is void for
vagueness. This argument is foreclosed by Supreme Court
precedent.
In James, the Court held that the residual provision in the
ACCA was not unconstitutionally vague, explaining that
although “ACCA requires judges to make sometimes difficult
evaluations of the risks posed by different offenses,” it “is not
so indefinite as to prevent an ordinary person from
understanding what conduct it prohibits.” 550 U.S. at 210 n.6.
The Court reiterated this holding in Sykes, reasoning that
although Congress’s decision to “frame ACCA in general and
qualitative, rather than encyclopedic, terms” resulted in a
UNITED STATES V. SPENCER 25
statute that “may at times be more difficult for courts to
implement, it is within congressional power to enact” laws in
such a manner, and the ACCA residual clause “states an
intelligible principle and provides guidance that allows a
person to ‘conform his or her conduct to the law.’” Sykes,
131 S. Ct. at 2277 (quoting City of Chicago v. Morales,
527 U.S. 41, 58 (1999) (plurality opinion)).
Because precedents interpreting the ACCA residual
clause apply to § 4B1.2(a)(2) of the Sentencing Guidelines,
Crews, 621 F.3d at 852 n.4, 855–56, § 4B1.2(a)(2)’s residual
clause is not unconstitutionally vague.
III. CONCLUSION
We hold that the 1996 version of Hawaii Revised Statute
§ 708-820(1)(a), criminal property damage in the first degree,
is categorically a crime of violence under the residual clause
of § 4B1.2(a)(2) of the Sentencing Guidelines. Thus, the
district court did not err in applying the “career offender”
sentencing enhancement to Spencer under § 4B1.1. We also
hold that Spencer’s claim that the residual clause in
§ 4B1.2(a)(2) is unconstitutionally vague is foreclosed by
Supreme Court precedent.
AFFIRMED.