United States v. Norman Spencer

FILED
NOT FOR PUBLICATION JUN 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30216
Plaintiff - Appellee, D.C. No. 1:12-cr-00054-PA
v.
MEMORANDUM*
NORMAN BRUCE SPENCER, a.k.a.
Donovan Robert Carlton,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Norman Bruce Spencer appeals from the district court’s judgment and
challenges the district court’s decision to sentence him under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to 188 months, following his guilty-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
plea conviction for being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Spencer contends that ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii),
is unconstitutionally vague as applied to his prior conviction for attempted injury
to a child. We review de novo whether a statute is unconstitutionally vague. See
United States v. Spencer, 724 F.3d 1133, 1136 n.2 (9th Cir. 2013). As Spencer
acknowledges, his argument is foreclosed. See id. at 1135-36, 1145-46 (citing
Sykes v. United States, 131 S. Ct. 2267, 2277 (2011) and James v. United States,
550 U.S. 192, 210 n.6 (2007)). Because the Supreme Court has concluded that the
residual clause is not unconstitutionally vague, see id., we decline to apply the rule
of lenity or the doctrine of constitutional avoidance. See United States v. Shill, 740
F.3d 1347, 1355 (9th Cir. 2014) (rule of lenity and doctrine of constitutional
avoidance are inapplicable when a statute is not ambiguous).
AFFIRMED.
2 13-30216