Appeal from the United States District Court for the District of Oregon D.C. No. CR-05-60072-ALA Ann L. Aiken, District Judge, Presiding.
Argued and Submitted May 5, 2008 -- Portland, Oregon.
Before: Richard C. Tallman, Richard R. Clifton, and N. Randy Smith, Circuit Judges.
Order; Dissent to Order by Chief Judge Kozinski; Opinion by Judge N.R. Smith;
The opinion in the above-captioned matter filed on June 30, 2008, and published at 530 F.3d 1099, is WITHDRAWN. The superseding opinion shall be filed concurrently with this order.
Having made the foregoing amendments to the opinion, all judges on the panel have voted to deny Defendant/Appellee's Petition for Panel Rehearing, and so that petition is DENIED.
The full court has been advised of Defendant/Appellee's Petition for Rehearing En Banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a majority of the active judges did not vote in favor of en banc consideration. Fed. R. App. P. 35. Accordingly, the Petition for Rehearing En Banc is also DENIED.
Chief Judge, KOZINSKI, with whom Judges REINHARDT and W. FLETCHER join, dissenting from the denial of rehearing en banc.
This is a train wreck in the making.
The panel cleaves a formerly uniform doctrine-the Taylor categorical approach-into two branches. One approach for most things; a separate, incompatible version for a single clause of the Armed Career Criminal Act. This approach is novel, difficult to administer and will encourage future panels to splinter the categorical approach into even smaller pieces. That's not all: The panel also reads ACCA's residual clause so broadly that nearly any crime will qualify. And it does so by embracing an argument that the Supreme Court rejected this Term, in an opinion on which the ink is barely dry. This is precisely the sort of case we need to take en banc in order to prevent serious damage to the fabric of our circuit law.
1. The categorical approach of Taylor v. United States, 495 U.S. 575, 600 (1990), has been applied with remarkable uniformity to many areas of law. It's used for ACCA; it's used for immigration; it's used for the Sentencing Guidelines. The inquiry in all of these areas is identical and elegant: Does the state offense reach conduct beyond the generic federal definition? The way we answer that question is by looking at state prosecutions to see whether any of them actually involved such uncovered conduct.
This case is about whether Oregon's first-degree burglary statute is a crime of violence. There are two ways that it could be. First, it could qualify as a generic Taylor burglary; second, it could fall under the statute's residual clause, which covers crimes that present a "serious potential risk of physical injury." The panel quickly recognizes that Oregon's burglary statute doesn't qualify as generic burglary. United States v. Mayer, 530 F.3d 1099, 1106 (9th Cir. 2008). The only remaining question is whether Oregon burglary falls within the residual clause.
To determine whether this is the case, the panel needs to ask a simple question: Does Oregon's burglary statute only reach conduct that presents a "serious potential risk of physical injury?" And the right answer is obviously no: Oregon prosecutes as burglars people who pose no risk of injury to anyone. E.g. State v. Keys, 244 Or. 606 (1966) (upholding burglary conviction for entering public telephone booths to steal change from coin boxes). Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), held that an offender can show "that a state statute creates a crime outside the generic definition . . . in a federal statute" by pointing to "cases in which the state courts in fact did apply the statute" more broadly than the federal definition would reach. Keys, decided by the state's highest court, is such a case.
Instead of asking and answering this simple question, the panel comes up with a new, complicated question to ask: Do "[m]ost of the cases" under the state statute involve dangerous conduct? Mayer, 530 F.3d at 1108. Forget, for the moment, whether this inquiry has a basis in law. Don't even think about how a court is supposed to figure out whether a statute is applied in a certain way "most of the time." (A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?) Ask instead: Why should we want to fork the categorical approach into multiple branches?
A great virtue of the categorical approach has been its consistency across doctrinal areas. Immigration cases that explain it, like Duenas-Alvarez, can be applied to ACCA. E.g. James v. United States, 127 S.Ct. 1586, 1597 (2007) (citing Duenas-Alvarez). ACCA cases, like Taylor, can be applied to the Sentencing Guidelines. E.g. United States v. Snellenberger, 548 F.3d 699, 700 (9th Cir. 2008) (en banc) (citing Taylor). And Sentencing Guidelines cases, like Snellenberger, can be applied to immigration. E.g. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1082 (9th Cir. 2008) (citing Snellenberger). The interoperability of the doctrine means that precedents can be mixed and matched, regardless of which statute was at issue in which case. One approach; one body of law. Complex, to be sure, but at least uniform in application.
By creating a side-spur just for ACCA's residual clause, the panel has laid the groundwork for major confusion. This is especially true given that we have already applied the ordinary categorical approach to every other part of the same statutory sentence: the enumerated offenses of burglary, United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc); arson, United States v. Velasquez-Reyes, 427 F.3d 1227 (9th Cir. 2005); extortion, United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. 2008); and the use of explosives, United States v. Fish, 368 F.3d 1200 (9th Cir. 2004). There is nothing whatsoever about the position or language of the residual clause that would suggest different treatment: ACCA defines a crime of violence as an offense that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). No one reading this definition could predict that the underlined phrase would be treated differently than the rest of the sentence-or explain why. Suddenly, any statutory comma may trigger a doctrinal shift. Whatever happened to ejusdem generis? The law in this area is difficult enough without such pointless complexity.
Now, circle back to that question about the legal basis for this needless innovation: There is none. The panel says, quoting James, that not "every conceivable factual offense covered by a statute" need fall within the generic federal definition for it to categorically qualify. Mayer, 530 F.3d at 1108. True. The Supreme Court said as much in Duenas-Alvarez, where it cautioned against unsubstantiated flights of legal imagination. James, in fact, cites Duenas-Alvarez for this proposition. But a caution against legal imagination has no relevance to our case because Oregon has in fact applied its burglary statute to non-dangerous conduct. The panel is thus interpreting James and Duenas-Alvarez, decided only three months apart, to require different outcomes depending on whether the case is about immigration or ACCA's residual clause. If this is what the James majority had in mind, one would think they would do more than cite Duenas-Alvarez with a cf.
The panel has dragged us far out of the mainstream. We now have the dubious distinction of being the only federal court in the country to hold that there are two categorical approaches: one for most situations and another one for the ACCA's residual clause. It's going to be a tough regime to administer, and wrong to boot.
2. But there's more. Congress didn't intend ACCA "to be all-encompassing," or it wouldn't have included the enumerated crimes at all. Begay v. United States, 128 S.Ct. 1581, 1585 (2008). The residual clause therefore reaches only those crimes "characteristic of the armed career criminal, the eponym of the statute." Id. at 1586 (internal quotation marks and citation omitted). Congress's intent was to combat the "special danger created when a particular type of offender" possesses a gun. Id. at 1587 (emphasis added). This suggests a narrow residual clause, which is appropriate given the harsh 15-year minimum sentence that ACCA provides.
The panel adopts an argument that stretches the residual clause beyond recognition: Oregon's burglars are dangerous, says the panel, because they might turn violent if apprehended. Mayer, 530 F.3d at 1108-09. While the Supreme Court has held that "attempting a break-in" creates a special risk of violent confrontation, James, 127 S.Ct. at 1595, Oregon's burglars don't need to break in. As Keys illustrates, Oregon has eliminated the unlawful entry requirement. Our colleague, then-Justice Goodwin, worried in dissent that his court had made a burglar of a man who enters a courthouse intending to perjure himself. Keys, 244 Or. at 617. The special danger of a break-in is therefore absent. It's true that a burglar in Portland might turn violent if the police attempt to apprehend him, but so might any criminal caught committing any serious crime. Accepting this argument turns ACCA into a general sentence enhancement for recidivists and renders the enumerated offenses mere surplusage.
The validity of this "dangerousness at apprehension" theory is not an open question; the Supreme Court just rejected it. Chambers v. United States, 129 S.Ct. 687 (2009), considered whether failure to report for incarceration is a violent felony under ACCA's residual clause. The government argued that failing to report makes criminals dangerous because they may be violent if apprehended, and "[shoot] at officers attempting to recapture them." Id. at 692. This argument, which carried the day in our court, was dismissed by the Supreme Court as "beside the point." In the Court's view, the "question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender." Id. (emphasis added).
There is nothing about an Oregon burglar that makes him more likely to turn violent if cornered than any other serious felon. If Oregon burglary qualifies under ACCA's residual clause, so does any other serious felony in the nine Western states. This is precisely the result the Supreme Court warned against in Begay. The panel manages to create a conflict with two recent Supreme Court cases-Begay and Chambers, the latter only a few weeks old.
We have sown the wind and will reap the whirlwind. Mr. Mayer's the first casualty; ...