United States v. Byron Prince , 772 F.3d 1173 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30212
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00110-TOR-1
BYRON CORNELIUS PRINCE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted
August 26, 2014—Seattle, Washington
Filed November 24, 2014
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 UNITED STATES V. PRINCE
SUMMARY*
Criminal Law
Affirming a sentence, the panel held that attempted
robbery under California Penal Code § 211 is a violent felony
under the Armed Career Criminal Act because, in the
ordinary case, it poses a serious potential risk of injury to
another, and because it creates a serious risk of harm roughly
similar, in kind and degree of risk posted, to the enumerated
offenses burglary and extortion.
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
Michael C. Ormsby, United States Attorney; George J.C.
Jacobs, III, Assistant United States Attorney, Eastern District
of Washington, Spokane, Washington, 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. PRINCE 3
OPINION
CHRISTEN, Circuit Judge:
Byron Prince appeals the sentence imposed following his
conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Prince challenges the
district court’s conclusion that his prior California attempted
robbery conviction was a “violent felony” under the Armed
Career Criminal Act (ACCA). See 18 U.S.C.
§ 924(e)(1)–(2)(B). The district court did not err by ruling
that attempt to commit robbery under California Penal Code
§ 211 qualifies as a “violent felony” for purposes of the
ACCA because attempted robbery presents a serious potential
risk of physical injury to another, and because it is roughly
similar, in kind as well as in degree of risk posed, to burglary
and extortion, both of which are listed as violent felonies
under the ACCA.
FACTS
Prince accidentally shot himself with a revolver on June
21, 2011. The government indicted Prince for being a felon
in possession of a firearm, and a jury convicted him. Prince
was given a mandatory minimum sentence of fifteen years
imprisonment because the district court found he had three
prior convictions “for a violent felony . . . committed on
occasions different from one another,” one of which was
attempted robbery in California. 18 U.S.C. § 924(e)(1).
Prince appeals his sentence and conviction.1
1
We affirm the district court’s judgment of conviction in a separate
memorandum disposition issued concurrently.
4 UNITED STATES V. PRINCE
STANDARD OF REVIEW
Because Prince did not object in the district court on the
basis that his attempted robbery conviction was not a violent
felony, we review this issue for plain error. See Fed. R. Crim.
P. 52(b); United States v. Ameline, 409 F.3d 1073, 1078 (9th
Cir. 2005) (en banc). However, our conclusion would not
differ on de novo review.
DISCUSSION
The ACCA defines “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
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B).
The government argues that Prince’s prior conviction for
attempted robbery in California categorically satisfies the
residual clause, because attempted robbery “involves conduct
that presents a serious potential risk of physical injury to
another.”
In California, “[r]obbery is the felonious taking of
personal property in the possession of another, from his
person or immediate presence, and against his will,
UNITED STATES V. PRINCE 5
accomplished by means of force or fear.” Cal. Penal Code
§ 211. “An attempted robbery requires a specific intent to
commit robbery and a direct, ineffectual act (beyond mere
preparation) toward its commission.” People v. Medina,
161 P.3d 187, 192 (Cal. 2007). Attempt “must go so far that
[it] would result in the accomplishment of the crime unless
frustrated by extraneous circumstances.” People v. Memro,
700 P.2d 446, 474 (Cal. 1985), overruled on other grounds by
People v. Gaines, 205 P.3d 1074 (Cal. 2009).
In United States v. Chandler, 743 F.3d 648, 650 (9th Cir.
2014), we established that the two-step framework for
determining whether a conviction under state law qualifies as
a crime of violence under the Sentencing Guidelines’ Career
Offender enhancement also applies to determining whether a
crime is a violent felony under the ACCA’s residual clause:2
First, the conduct encompassed by the
elements of the offense, in the ordinary case,
must present a serious potential risk of
physical injury to another. Second, 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 involving
explosives.
2
“[A] violent felony as defined in the ACCA is nearly identical to a
‘crime of violence’ as defined in the Sentencing Guidelines’ Career
Offender enhancement.” Chandler, 743 F.3d at 650 (comparing 18 U.S.C.
§ 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines Manual § 4B1.2(a)).
Thus, “we have used our analysis of the definition of crime of violence in
the Sentencing Guidelines to guide our interpretation of violent felony in
the ACCA.” Id.
6 UNITED STATES V. PRINCE
Id. (alterations, citations, and internal quotation marks
omitted). Applying this framework, we conclude that
attempted robbery under California Penal Code § 211
qualifies as a violent felony under the ACCA’s residual
clause.
I. Attempted robbery, in the ordinary case, presents a
serious risk of potential injury to another.
Prince argues that “[t]he elements of attempted robbery
do not present a serious potential risk of physical injury to
another” because the law in California permits convictions for
attempted use or threatened use of force against property, and
because “th[e] force need not be violent physical force.” The
problem with this argument is that the ACCA’s residual
clause does not require the actual use of violent physical
force; it expressly requires only “conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
As we previously stated in United States v. McDougherty,
920 F.2d 569, 574 (9th Cir. 1990), when considering whether
robbery as defined in California is a crime of violence for the
purposes of the Sentencing Guidelines § 4B1.2, robbery “is
certainly the kind of crime that presents a serious risk that
physical force may be used.” Where there is a serious risk
that physical force may be used directly against the victim or
in the victim’s presence, there is a serious potential risk of
physical injury to another. This risk is illustrated by
numerous cases in which conduct resulting in conviction
under § 211 undeniably created a serious risk of physical
injury, or did in fact result in serious injury. See, e.g., People
v. Hensley, 330 P.3d 296, 303 (Cal. 2014) (defendant shot and
killed victim before taking his property); People v. Gomez,
UNITED STATES V. PRINCE 7
179 P.3d 917, 919–20 (Cal. 2008) (defendant fired shots at
victim while fleeing from scene of robbery); People v.
Bolden, 58 P.3d 931, 956 (Cal. 2002) (holding that jury could
infer that the defendant killed the victim primarily to facilitate
a robbery); People v. Ramirez, 39 Cal. App. 4th 1369,
1374–75 (1995) (defendant stabbed victim after taking
property). It may be possible to imagine a set of facts
involving an attempted robbery that does not present a serious
risk of potential injury to another, but our task is to consider
the risk posed in the ordinary case, Chandler, 743 F.3d at
650, and we have no difficulty in concluding California’s
definition of attempted robbery satisfies this test.
The outcome of this case does not change because Prince
was convicted of attempted robbery rather than robbery. In
California, attempt “must go so far that [it] would result in
the accomplishment of the crime unless frustrated by
extraneous circumstances.” Memro, 700 P.2d at 474. We
have held that “an attempt to commit a crime of violence is
itself a crime of violence” under U.S. Sentencing Guidelines
Manual § 4B1.2. United States v. Wenner, 351 F.3d 969, 976
(9th Cir. 2003). Further, the primary risk of physical injury
associated with robbery does not come from the completed
taking of property; rather, it comes from the potential for use
of force and the potential for confrontation between the
robber and the victim or a third party. Cf. James v. United
States, 550 U.S. 192, 203–04 (2007) (holding that burglary
and attempted burglary create the same risk of face-to-face
confrontation.). Because the potential for confrontation or
use of force does not depend on the robber’s success in taking
property, attempt to commit robbery presents the same
potential risk of injury as robbery itself.
8 UNITED STATES V. PRINCE
II. The risk of injury in attempted robbery is roughly
similar, in kind and degree, to that of the offenses
enumerated in the ACCA.
When considering whether the risk of injury presented by
a state offense is roughly similar to that of the offenses
enumerated in the ACCA, we apply one of two standards.
See Chandler, 743 F.3d at 651. If the statute of conviction
involves a strict liability, negligence, or recklessness offense,
the conviction qualifies as a violent felony only if it
“involve[s] purposeful, violent, and aggressive conduct.” Id.
(quoting Begay v. United States, 553 U.S. 137, 144–45 (2008)
(internal quotation marks omitted)). For offenses that are not
strict liability, negligence, or recklessness crimes, we “focus
on whether the risk posed by the state offense ‘is comparable
to that posed by its closest analog among the enumerated
offenses.’ ” Id. (quoting James v. United States, 550 U.S.
192, 203 (2007)). Attempted robbery under California Penal
Code § 211 is a specific intent crime, Medina, 161 P.3d at
192, not a strict liability, negligence, or recklessness offense.
We therefore consider whether the risk it poses is comparable
to any of the offenses enumerated in the ACCA. See
Chandler, 743 F.3d at 651.
The ACCA lists burglary and extortion, among others, as
enumerated offenses. 18 U.S.C. § 924(e)(2)(B)(ii). The
generic definition of burglary is “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with
intent to commit a crime.” Taylor v. United States, 495 U.S.
575, 598 (1990). The generic definition of extortion is
“obtaining something of value from another with his consent
induced by the wrongful use of force, fear, or threats.”
Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409
(2003) (citations and internal quotation marks omitted).
UNITED STATES V. PRINCE 9
In Chandler, we held that conspiracy to commit robbery
under Nevada law qualified as a violent felony for purposes
of the ACCA because “conspiracy to commit robbery in
Nevada is . . . similar, in kind and degree of risk posed, to
extortion and burglary.” 743 F.3d at 655. Nevada’s robbery
statute is very similar to California’s.3 There are two
pertinent differences: first, in Nevada, robbery may be
committed by means of “force or violence or fear of injury,”
Nev. Rev. Stat. § 200.380, while in California robbery may
be committed only by means of “force or fear,” Cal. Penal
Code § 211; second, the Nevada statute defines who or what
the “force or violence or fear of injury” must be directed
towards, Nev. Rev. Stat. § 200.380, while the California
statute does not, Cal. Penal Code § 211. In the ordinary case,
conduct satisfying the definition of robbery in California
would also satisfy the definition of robbery in Nevada.
Though not dispositive, our conclusion in Chandler is
persuasive, and we employ the same framework here.
Attempted robbery in California poses risks similar to
generic burglary because the risk of injury in both robbery
and burglary “is ‘the possibility of a face-to-face
confrontation’ with the victim or an intervener” that may end
3
In Nevada:
[r]obbery is the unlawful taking of personal property
from the person of another, or in the person’s presence,
against his or her will, by means of force or violence or
fear of injury, immediate or future, to his or her person
or property, or the person or property of a member of
his or her family, or of anyone in his or her company at
the time of the robbery.
Nev. Rev. Stat. § 200.380.
10 UNITED STATES V. PRINCE
in violence. Chandler, 743 F.3d at 654 (quoting James,
550 U.S. at 203). As we observed in Chandler, “the risk
posed by robbery may actually be greater than the risk posed
by burglary because robbery requires taking from a person,
against his or her will, by means of force or violence or fear
of injury.” Id. at 655. In California, robbery may be
accomplished without directly “taking from a person,” but
because it cannot be accomplished without taking from the
victim’s “person or immediate presence,” Cal. Penal Code.
§ 211 (emphasis added), it necessarily involves a risk of face-
to-face confrontation similar to that inherent in burglary.
To the extent that California Penal Code § 211 presents
some risks of injury different than the risk of face-to-face
confrontation inherent in burglary—because it encompasses
takings or attempted takings by means of fear and takings by
means of force directed against property, see United States v.
Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (“Section
211 is broader [than generic robbery] because it encompasses
mere threats to property.”)—the conduct creating these types
of risks satisfies the generic definition of extortion. Taking
property by means of fear easily fits within the generic
definition of extortion. See Scheidler, 537 U.S. at 409(defining extortion as “obtaining something of value from
another with his consent induced by the wrongful use of
force, fear, or threats” (emphasis added) (internal quotation
marks omitted)). And we have previously held that “[t]akings
through threats to property and other threats of unlawful
injury fall within generic extortion.” Becerril-Lopez,
541 F.3d at 891; see also Chandler, 743 F.3d at 654 (holding
that robbery in Nevada “satisfies the generic definition of
extortion” (alteration omitted)). Thus, the risks presented by
attempted robbery that differ from the risks presented by
UNITED STATES V. PRINCE 11
burglary are risks associated with generic extortion, another
crime enumerated in the ACCA.
We conclude that a conviction for attempted robbery
under California Penal Code § 211 is a violent felony under
the ACCA because, in the ordinary case, it poses a serious
potential risk of injury to another, and because it creates a
serious risk of harm roughly similar, in kind and degree of
risk posed, to the enumerated offenses burglary and extortion.
CONCLUSION
The sentence imposed by the district court is
AFFIRMED.