United States v. Jorge Cisneros

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30066
Plaintiff-Appellee,
D.C. No.
v. 1:11-cr-30051-PA-1
JORGE ARMANDO CISNEROS,
Defendant-Appellant. OPINION
On Remand From the United States Supreme Court
Filed June 22, 2016
Before: Alfred T. Goodwin, Sandra S. Ikuta, and N. Randy
Smith, Circuit Judges.
Opinion by Judge N.R. Smith
2 UNITED STATES V. CISNEROS
SUMMARY*
Criminal Law
On remand from the Supreme Court, the panel vacated a
sentence and remanded for resentencing without application
of the 15-year mandatory minimum prison term required by
the Armed Career Criminal Act where a defendant has three
previous convictions that qualify as a “violent felony” or
“serious drug offense.”
The defendant conceded that his conviction for
conspiracy to deliver a controlled substance under Oregon
Revised Statutes sections 161.450 and 475.752 is a serious
drug offense under United States v. Parry, 479 F.3d 722 (9th
Cir. 2007). The panel rejected the defendant’s argument that
Parry was wrongly decided, and noted that a three-judge
panel may not overrule a prior decision of the court. The
panel agreed with the government’s concession that the
defendant’s convictions for fleeing or attempting to elude a
police officer under Oregon Revised Statutes section
811.540(1) are not serious drug offenses or violent felonies.
The panel held that the defendant’s burglary convictions
under Oregon Revised Statutes section 164.225 do not qualify
as violent felonies because the Oregon statute defines
“building” more broadly than does generic burglary and the
building element of section 164.225 is indivisible.
*
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. CISNEROS 3
COUNSEL
Brian C. Butler, Assistant Federal Public Defender, Federal
Public Defender’s Office, Medford, Oregon, for Defendant-
Appellant.
Douglas W. Fong, Assistant United States Attorney; Kelly A.
Zusman, Appellate Chief; Billy J. Williams, United States
Attorney; Office of the United States Attorney, Medford,
Oregon; for Plaintiff-Appellee.
OPINION
N.R. SMITH, Circuit Judge:
Jorge Armando Cisneros appeals the district court’s
decision to sentence him to a mandatory-minimum sentence
of fifteen years in prison under the Armed Career Criminal
Act (“ACCA”). See 18 U.S.C. § 924(e)(1). Cisneros does
not have “three previous convictions” that qualify as “a
violent felony or a serious drug offense” under ACCA. Id.
Accordingly, we vacate Cisneros’s sentence and remand to
the district court for resentencing.
I.
Under ACCA, a defendant convicted of violating
18 U.S.C. § 922(g) faces a fifteen-year mandatory-minimum
sentence if he “has three previous convictions . . . for a
violent felony or a serious drug offense, or both.” Id.
§ 922(e)(1). ACCA defines “serious drug offense” as
follows:
4 UNITED STATES V. CISNEROS
(i) an offense under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46, for
which a maximum term of imprisonment of
ten years or more is prescribed by law; or
(ii) an offense under State law, involving
manufacturing, distributing, or possessing
with intent to manufacture or distribute, a
controlled substance (as defined in section
102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term
of imprisonment of ten years or more is
prescribed by law[.]
Id. § 924(e)(2)(A). ACCA also defines “violent felony”:
any crime punishable by imprisonment for a
term exceeding one year, or any act of
juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive
device that would be punishable by
imprisonment for such term if committed by
an adult, 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[.]
Id. § 924(e)(2)(B).
 UNITED STATES V. CISNEROS 5
At the time the district court sentenced Cisneros, a prior
conviction also qualified as a violent felony if it “otherwise
involve[d] conduct that presented a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). We
previously relied on this “residual clause” to affirm
Cisneros’s sentence. See United States v. Cisneros, 763 F.3d
1236 (9th Cir. 2014). However, the Supreme Court
subsequently invalidated ACCA’s residual clause, reasoning
that it violated “the Constitution’s prohibition of vague
criminal laws.” Johnson v. United States, 135 S. Ct. 2551,
2555–57 (2015). Therefore, we must determine whether, in
the absence of ACCA’s residual clause, at least three of
Cisneros’s previous convictions nonetheless qualify as
predicate offenses.
II.
On November 26, 2012, Cisneros pleaded guilty to being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The government sought to enhance Cisneros’s
sentence under ACCA. See 18 U.S.C. § 924(e). The
government based its proposed sentence enhancement on six
of Cisneros’s prior convictions: one conviction for conspiracy
to deliver a controlled substance, see Or. Rev. Stat.
§§ 161.450, 475.752, three convictions for fleeing or
attempting to elude a police officer, see id. § 811.540(1), and
two convictions for first-degree burglary, see id. § 164.225.
The district court held that all six of Cisneros’s prior
convictions qualified as ACCA predicate offenses and
sentenced Cisneros to the mandatory-minimum sentence of
fifteen years in prison.
6 UNITED STATES V. CISNEROS
III.
We review de novo whether Cisneros’s prior convictions
qualify as predicate offenses under ACCA. United States v.
Bonat, 106 F.3d 1472, 1474 (9th Cir. 1997). We must
determine whether at least three of Cisneros’s previous
convictions are either serious drug offenses or violent
felonies under ACCA.
IV.
We would first address Cisneros’s conviction for
conspiracy to deliver a controlled substance under Oregon
Revised Statutes sections 161.450 and 475.752. However,
Cisneros concedes that this prior conviction is a serious drug
offense under United States v. Parry, 479 F.3d 722, 724–25
(9th Cir. 2007).1
We next review Cisneros’s three convictions for fleeing
or attempting to elude a police officer under Oregon Revised
Statutes section 811.540(1). The government concedes that
these prior convictions are not serious drug offenses or
violent felonies. We agree. These prior convictions are not
serious drug offenses under § 922(e)(2)(A). Further, they are
not violent felonies—they did not have “as an element the
use, attempted use, or threatened use of physical force,” see
§ 924(e)(2)(B)(i), and are not one of the enumerated offenses
listed in § 924(e)(2)(B)(ii).
1
We reject Cisneros’s argument that Parry was wrongly decided;
further, as a “three-judge panel[, we] may not overrule a prior decision of
the court.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc).
UNITED STATES V. CISNEROS 7
V.
Accordingly, in order for ACCA’s mandatory-minimum
sentence to apply to Cisneros, both of his previous
convictions for first-degree burglary under Oregon Revised
Statutes section 164.2252 must qualify as either serious drug
offenses or violent felonies. It is evident that such
convictions do not qualify as serious drug offenses under
§ 922(e)(2)(A). Further, they do not have “as an element the
use, attempted use, or threatened use of physical force.” See
§ 924(e)(2)(B)(i).
Therefore, we must determine whether Cisneros’s
convictions for first-degree burglary qualify as violent
felonies under § 924(e)(2)(B)(ii)—i.e. whether a conviction
for first-degree burglary under Oregon law is a categorical
match to generic burglary under federal law. In order to do
so, we apply the three-step process set forth in Descamps v.
United States, 133 S. Ct. 2276 (2013):
At the first step, we compare the elements of
the state offense to the elements of the generic
offense defined by federal law. If this
“categorical approach” reveals that the
elements of the state crime are the same as or
narrower than the elements of the federal
offense, then the state crime is a categorical
2
Section 164.225 provides in relevant part: “A person commits the
crime of burglary in the first degree if the person violates ORS 164.215
[the second degree burglary statute] and the building is a dwelling.”
Section 164.215 provides: “[A] person commits the crime of burglary
in the second degree if the person enters or remains unlawfully in a
building with intent to commit a crime therein.”
8 UNITED STATES V. CISNEROS
match and every conviction under that statute
qualifies as an aggravated felony. When a
statute is “overbroad,” meaning that it
criminalizes conduct that goes beyond the
elements of the federal offense, we turn to
step two: determining whether the statute is
“divisible” or “indivisible.” If the statute is
indivisible, “our inquiry ends, because a
conviction under an indivisible, overbroad
statute can never serve as a predicate offense.”
Only when a statute is overbroad and divisible
do we turn to step three—the “modified
categorical approach.” At this step, we may
examine certain documents from the
defendant’s record of conviction to determine
what elements of the divisible statute he was
convicted of violating.
Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir.
2015) (internal citations omitted) (citing Descamps, 133
S. Ct. at 2293).
A. Step One: Oregon’s Burglary Statute is Overbroad.
The first step is to “compare the elements of the crime of
conviction . . . with the elements of the generic crime.”
Descamps, 133 S. Ct. at 2281. We have previously
determined that Oregon’s first-degree burglary statute is not
a “categorical match” to generic burglary. In United States
v. Grisel, we recognized that “Oregon defines second-degree
burglary more broadly than the ACCA,” because “[t]he text
of the statute expressly includes in its definition that which
the Supreme Court expressly excluded from the generic,
federal definition.” 488 F.3d 844, 850 (9th Cir. 2007) (en
UNITED STATES V. CISNEROS 9
banc). In United States v. Mayer, we confirmed that Oregon
defines first-degree burglary more broadly as well. 560 F.3d
948, 959 (9th Cir. 2009) (“Oregon Revised Statutes section
164.225 is therefore broader than the definition of generic
burglary because the statute does not limit burglary to
‘building[s] or structure[s],’ but also includes non-structures
(such as booths, vehicles, boats, and aircraft) that are
regularly or intermittently used as lodgings.” (alterations in
original)).
Confirming our prior analysis, Cisneros was convicted of
first-degree burglary under Oregon Revised Statutes section
164.225. Under such law, a person commits first-degree
burglary if he “enters or remains unlawfully in a building
with intent to commit a crime therein,” Or. Rev. Stat.
§ 164.215, “and the building is a dwelling,” Or. Rev. Stat.
§ 164.225. Oregon defines “building” to include “in addition
to its ordinary meaning . . . any booth, vehicle, boat, aircraft
or other structure adapted for overnight accommodation of
persons or for carrying on business therein.” Or. Rev. Stat.
§ 164.205(1). Oregon defines “dwelling” as “a building
which regularly or intermittently is occupied by a person
lodging therein at night, whether or not a person is actually
present.” Id. § 164.205(2).
Similar to Oregon’s burglary statute, generic burglary has
“the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 599 (1990).
However, the “building or structure” element of generic
burglary does not include booths, vehicles, boats, or aircrafts.
See id. (“A few States’ burglary statutes . . . define burglary
more broadly . . . by including places, such as automobiles
and vending machines, other than buildings.”).
10 UNITED STATES V. CISNEROS
Accordingly, Oregon’s burglary statute is not a
categorical match to generic burglary, because the Oregon
statute defines building more broadly than does generic
burglary and therefore criminalizes more conduct than
generic burglary.
B. Step Two: Oregon’s Burglary Statute is Indivisible.
Step two requires us to determine whether Oregon
Revised Statutes section 164.225 has “multiple, alternative
elements, and so effectively creates ‘several different . . .
crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan
v. Holder, 557 U.S. 29, 41 (2009)). If the statute has
alternative elements, “it is divisible and we continue to step
three—the modified categorical approach.” Almanza-Arenas
v. Lynch, 815 F.3d 469, 476 (9th Cir. 2015) (en banc).
However, if the statute “has a ‘single, indivisible set of
elements’ with different means of committing one crime, then
it is indivisible and we end our inquiry, concluding that there
is no categorical match to the generic federal offense.” Id. at
476–77 (quoting Descamps, 133 S. Ct. at 2286).
The first step of our divisibility inquiry “begins with the
text of the statute of conviction.” Id. at 477 (citing
Richardson v. United States, 526 U.S. 813, 818 (1999)). The
text of Oregon Revised Statutes section 164.225 presents
three elements: (1) a person enters or remains unlawfully;
(2) a building that is a dwelling; and (3) the person had the
intent to commit a crime at the time of entering or remaining
unlawfully. See Or. Rev. Stat. §§ 164.215, 164.225.
Cisneros first argues that the second element of section
164.225 is indivisible, because the alternative definitions of
building represent different means of committing the same
offense. We agree. Although Oregon Revised Statutes
UNITED STATES V. CISNEROS 11
section 164.205(1) uses disjunctive phrasing to define
building—“any booth, vehicle, boat, aircraft, or other
structure”—here “the use of ‘or’ does not create additional
elements.” Almanza-Arenas, 815 F.3d at 478. “Rather, the
disjunctive phrasing creates different means of committing
the one offense.” Id. The text of the statute does not suggest
that a trier of fact must specify which alternative applies for
any given conviction.
We next look to “confirm this statutory interpretation by
first examining the Shepard documents to see whether the
statute displays alternative elements instead of alternative
means of committing the same crime.” Id. at 478 (citing
Descamps, 133 S. Ct. at 2285 n.2); see generally Shepard v.
United States, 544 U.S. 13 (2005). The indictments for both
of Cisneros’s burglary convictions state that he was accused
of “Burglary in the First Degree.” Similarly, the plea
colloquies both state that Cisneros pleaded guilty to
“Burglary in the First Degree.”3 Neither the indictments nor
3
Cisneros’s indictments and plea colloquies further describe the
underlying facts of the crimes and explain that, on both occasions,
Cisneros entered a dwelling located at a specific address. In United States
v. Snyder, we applied the modified categorical approach (without first
conducting a divisibility analysis) to Oregon’s second-degree burglary
statute and determined that the use of “the term ‘building’ together with
a street address provided adequate proof . . . that the defendant was
convicted of the entering or remaining in a ‘building’ . . . as is meant in
the generic definition of burglary.” 643 F.3d 694, 698 (9th Cir. 2011).
We concluded that “[b]ecause the facts admitted constitute generic
burglary, that alone is enough for it to be a predicate crime under ACCA.”
Id. at 697. However, our decision in Snyder predates Descamps, where
the Supreme Court concluded that the modified categorical approach only
applies if a statute is divisible. 133 S. Ct. at 2282. As explained herein,
Oregon Revised Statutes section 164.225 is not divisible. “The modified
approach thus has no role to play in this case.” Id. at 2285.
12 UNITED STATES V. CISNEROS
the plea colloquies show “that [a] jury necessarily had to find
an entry of a building [in its ordinary meaning] to convict.”
Taylor, 495 U.S. at 602.
Finally, “we must verify that our interpretation of
elements versus means is consistent with how [Oregon]
would instruct a jury as to this offense.” Almanza-Arenas,
815 F.3d at 479. Oregon’s pattern criminal jury instructions
make clear that Oregon law treats the disjunctive phrasing in
the definition of “building” as the means of committing the
offense and not separate elements. Oregon Uniform Criminal
Jury Instruction No. 1901 provides the appropriate instruction
for persons who are charged with violating Oregon Revised
Statutes section 164.225:
Oregon law provides that a person commits
the crime of burglary in the first degree if the
person enters or remains unlawfully in a
dwelling with the intent to commit a crime
therein.
In this case, to establish the crime of burglary
in the first degree, the state must prove
beyond a reasonable doubt the following
elements:
(1) The act occurred on or about
___________, 20___;
UNITED STATES V. CISNEROS 13
(2) [Defendant’s name] entered or remained
unlawfully in the premises described in the
charge[4];
(3) The premises described in the charge is a
dwelling; and
(4) At the time of entering or remaining
unlawfully, [defendant’s name] had the intent
to commit the crime of _________ therein.
Under this instruction, a jury is not required to specify which
alternate type of building applies.
Oregon federal district courts have likewise concluded
that Oregon’s burglary statutes are not divisible. See, e.g.,
United States v. Mayer, —F. Supp. 3d—, 2016 WL 520967,
at *8 (D. Or. Feb. 5, 2016) (concluding that Oregon’s first-
degree burglary statute is not divisible because the definition
of building does not provide for alternative elements); United
States v. Bayya, No. 3:13-cr-00558-HZ, 2015 WL 8751795,
at *3 (D. Or. Dec. 14, 2015) (“‘[B]uilding’ is a single element
of first-degree burglary and does not encompass separate,
4
Under Oregon law, there is no evidence that an indictment must
specify whether the dwelling at issue was a building (in the ordinary
sense) rather than a booth, vehicle, boat, aircraft, or other structure.
Indeed, the comments to Oregon Uniform Criminal Jury Instruction No.
1901 refer generally to the statutory definition of “dwelling” and
“building.” In contrast, the comments explain that for the intent element
of burglary, an indictment must specify the crime a defendant intended to
commit at the time of the unlawful entry. See also State v. Sanders,
572 P.2d 1307, 1309 (Or. 1977) (concluding that an indictment must
“specify[] the intent which the defendant is charged with having at the
time of the breaking and entering”).
14 UNITED STATES V. CISNEROS
alternative crimes . . . there is no indication that the
legislature intended to require juror unanimity about the type
of building into which a defendant unlawfully entered or
remained before finding him guilty of burglary.”); United
States v. Snyder, 5 F. Supp. 3d 1258, 1263 (D. Or. 2014)
(“The text of the Oregon burglary statute indicates that
‘building’ is a single element.”).
VI.
Cisneros also argues that, aside from the “building”
element, the “enters or remains unlawfully” element is
indivisible. We have already concluded that the “building”
element of Oregon’s first-degree burglary statute is
indivisible. Thus, whether the “enters or remains unlawfully”
element is also indivisible is irrelevant to our analysis. Even
if we were to assume that “enters or remains unlawfully”
creates two separate crimes, a conviction under Oregon’s
first-degree burglary statute could never be a categorical
match to generic burglary because of the “building” element.
Accordingly, we need not determine whether the enters or
remains unlawfully element is divisible.
VII.
Oregon Revised Statutes section 164.225 is not divisible.
“This conclusion ends our inquiry; we need not proceed to
step three.” Almanza-Arenas, 815 F.3d at 482. Cisneros’s
burglary convictions are not a categorical match to generic
burglary, because the Oregon statute is overbroad and
indivisible. Therefore, such convictions do not qualify as
violent felonies under § 922(e)(2)(B) and ACCA’s mandatory
minimum sentence is not applicable to Cisneros.
UNITED STATES V. CISNEROS 15
Accordingly, we VACATE the sentence and REMAND
to the district court for resentencing without applying the
ACCA enhancement.