United States v. Mayer ( 2009 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 07-30274
    Plaintiff-Appellee,           D.C. No.
    v.                        CR-05-60072-ALA
    CASEY DALE MAYER,                          ORDER AND
    Defendant-Appellant.
          OPINION
    Appeal from the United States District Court
    for the District of Oregon
    Ann L. Aiken, District Judge, Presiding
    Argued and Submitted
    May 5, 2008—Portland, Oregon
    Filed March 16, 2009
    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;
    3295
    UNITED STATES v. MAYER                3299
    COUNSEL
    Craig E. Weinerman, Assistant Federal Public Defender,
    Eugene, Oregon, for the defendant-appellant.
    Frank R. Papagni, Jr., Assistant United States Attorney,
    Eugene, Oregon, for the plaintiff-appellee.
    ORDER
    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    , is WITHDRAWN.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. Accord-
    ingly, the Petition for Rehearing En Banc is also DENIED.
    3300                UNITED STATES v. MAYER
    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 uni-
    formity 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 defini-
    tion? 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 inju-
    ry.” The panel quickly recognizes that Oregon’s burglary stat-
    ute doesn’t qualify as generic burglary. United States v.
    Mayer, 
    530 F.3d 1099
    , 1106 (9th Cir. 2008). The only
    UNITED STATES v. MAYER                  3301
    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 physi-
    cal 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 defini-
    tion . . . 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 con-
    sistency 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 Sen-
    tencing 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,
    3302               UNITED STATES v. MAYER
    
    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. Com-
    plex, 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 ordi-
    nary categorical approach to every other part of the same stat-
    utory 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 with-
    out such pointless complexity.
    Now, circle back to that question about the legal basis for
    this needless innovation: There is none. The panel says, quot-
    ing James, that not “every conceivable factual offense cov-
    ered 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
    UNITED STATES v. MAYER                3303
    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 enumer-
    ated 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 epo-
    nym of the statute.” 
    Id. at 1586
    (internal quotation marks and
    citation omitted). Congress’s intent was to combat the “spe-
    cial danger created when a particular type of offender” pos-
    sesses 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 appre-
    hended. 
    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
    , Ore-
    gon’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
    3304                UNITED STATES v. MAYER
    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 appre-
    hend 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 oth-
    ers 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; he won’t be the last.
    UNITED STATES v. MAYER                        3305
    OPINION
    N.R. SMITH, Circuit Judge:
    The district court properly denied Casey Dale Mayer’s
    motion to suppress, because (1) officers had probable cause
    to believe that Mayer lived at the residence they searched and
    (2) the conditions of his probation authorized the search. We
    also hold that the district court properly found that Mayer’s
    prior conviction for first-degree burglary in Oregon was a
    predicate “violent felony” under the residual clause of the
    Armed Career Criminal Act (“ACCA”). In the ordinary case,
    conduct falling within Oregon’s first degree burglary statute
    presents a serious possibility of risk of physical injury to oth-
    ers. Lastly, the district court properly concluded that Mayer’s
    two prior drug convictions were “serious drug offenses” under
    the ACCA because Mayer’s offenses involved manufacturing
    and delivering marijuana and Oregon law prescribes a maxi-
    mum term of imprisonment of ten years or more for such
    offenses. We have jurisdiction under 28 U.S.C. § 1291. We
    affirm.
    BACKGROUND
    I.       Factual Background
    In February 2004, Mayer was on both post-prison supervi-
    sion and probation as a result of two convictions for drug-
    related offenses.1 Mayer’s probation record indicated that he
    had lived at 103 Hansen Lane since September 2000. On
    1
    Mayer was serving post-prison supervision for a conviction, entered on
    October 8, 2001, in the Circuit Court of the State of Oregon for Lane
    County of: (i) unlawful manufacture of a controlled substance, (ii) deliv-
    ery of marijuana for consideration, (iii) unlawful possession of a con-
    trolled substance, and (iv) felon in possession of a firearm. Mayer was
    sentenced to probation for a conviction, entered on February 2, 2004, in
    the same court for: (i) unlawful manufacture of a controlled substance, and
    (ii) unlawful delivery of a controlled substance.
    3306                UNITED STATES v. MAYER
    August 26, 2003, Mayer informed his Parole and Probation
    Officer, Melinda Rauch, that he had moved temporarily to a
    new residence located at 605 Davis Street. Between August
    2003 and February 2004, Rauch met with Mayer twice at 605
    Davis Street.
    On February 24, 2004, one of Mayer’s former neighbors
    from Hansen Lane called Rauch. He informed her that Mayer
    was again living at 103 Hansen Lane and was likely selling
    drugs out of the house. Rauch drove by 103 Hansen Lane on
    several occasions; however, she was not able to personally
    verify the caller’s information.2 In April 2004, Mayer
    absconded from probation and post-prison supervision, and
    two warrants were issued for his arrest.
    On December 28, 2004, Parole and Probation supervisor
    Susan McFarland received an anonymous phone call from a
    man who refused to identify himself. The man stated (a) that
    “absconded parolee Casey Mayer” was at 103 Hansen Lane,
    (b) that he was certain that Mayer had a firearm, and (c) that
    Mayer was probably growing marijuana. The man expressed
    fear that Mayer would kill him if Mayer found out that he had
    called the probation department. He also indicated that Mayer
    would try to escape out of the back of the house if probation
    officers knocked on the front door.
    McFarland’s practice was to use the probation department’s
    database to verify the information from an anonymous caller.
    McFarland used the database to check Mayer’s listed address,
    prior contacts and convictions, outstanding warrants, and to
    assess his dangerousness. McFarland also called Rauch, who
    advised her that there was a high likelihood that Mayer would
    have weapons in the house and that he would resist arrest.
    2
    Rauch could not recall the dates on which she attempted to locate
    Mayer.
    UNITED STATES v. MAYER                   3307
    McFarland and four other Parole and Probation officers
    then went to 103 Hansen Lane to execute the two outstanding
    arrest warrants. When they arrived, McFarland positioned two
    officers at the front door and sent two other officers to the rear
    of the house (where the officers entered Mayer’s backyard
    through an open gate) to block the suspected escape route and
    to cover for the other officers. McFarland then noticed a man
    and a woman standing directly across the street. When
    McFarland approached the couple, the man told McFarland
    that Mayer lived at 103 Hansen Lane, that Mayer lived by
    himself, and that he had noticed a lot of people going in and
    out of the house.
    McFarland returned to join the officers at the front of the
    house, who were pounding on the front door and identifying
    themselves loudly and repeatedly. Although the officers heard
    someone moving around in the house and the sounds of a tele-
    vision coming from inside the house, no one answered the
    door.
    McFarland then went to the back of the house to check on
    the other two officers. While in the backyard, she observed an
    18-inch gap in the backyard fence, which she believed to be
    the escape route described by the anonymous caller. McFar-
    land also observed a bright light emanating from a plastic vent
    in the house’s foundation, and she heard a loud electrical
    buzzing noise coming from behind the vent. McFarland
    peeked through a slit in the vent, saw a marijuana plant, and
    smelled marijuana.
    While McFarland was at the back of the house, one of the
    officers (positioned at the front of the house) heard sounds
    coming from the attic and called the sheriff’s department to
    request back-up assistance. When the sheriff’s deputies
    arrived, McFarland told Deputy Sheriff Eric Franklin about
    her observations at the rear of the house. Franklin positioned
    himself at the back of the house, outside of the fence. Franklin
    had a photograph of Mayer that he handed through the slats
    3308               UNITED STATES v. MAYER
    in the fence to Deputy Sheriff David Thomas, who was sta-
    tioned in the backyard. Thomas told Franklin that he had seen
    Mayer inside of the house. Franklin then crossed the fence
    and went into the backyard, where he observed a marijuana
    plant, smelled the odor of growing marijuana, and saw a PVC
    pipe consistent with a hydroponic marijuana growing opera-
    tion.
    Approximately 1.5 hours after the probation officers
    arrived, Mayer and his brother came out of the house. Mayer
    admitted that there was marijuana growing inside the house,
    but denied the presence of firearms. He also refused to con-
    sent to a search of the residence.
    Deputy Marvin Combs then applied for, and obtained, a
    search warrant based on information that Franklin provided
    over the telephone. The subsequent search revealed mari-
    juana, items associated with growing marijuana, a .45 caliber
    pistol in the attic, and a box of .45 caliber ammunition in the
    bedroom.
    II.    Procedural History
    On July 21, 2005, Mayer was indicted for being a felon in
    possession of a firearm and ammunition, in violation of 18
    U.S.C. § 922(g)(1), as enhanced under the ACCA. On
    November 18, 2005, Mayer filed a motion to suppress the
    firearm. On March 8, 2006, following a suppression hearing,
    the district court denied the motion. On June 30, 2006, Mayer
    entered a conditional guilty plea pursuant to Federal Rule of
    Criminal Procedure 11(a)(2), expressly reserving in writing
    the right to appeal the denial of his suppression motion.
    The government argued that the district court should
    enhance Mayer’s sentence under the ACCA, because Mayer
    had one prior conviction for a violent felony and two prior
    convictions for serious drug offenses. The ACCA imposes a
    special mandatory 15-year prison term upon felons who
    UNITED STATES v. MAYER                3309
    unlawfully possess a firearm and who also have three or more
    previous convictions for “ ‘a violent felony or a serious drug
    offense.’ ” United States v. Jennings, 
    515 F.3d 980
    , 987 (9th
    Cir. 2008) (quoting 18 U.S.C. § 924(e)(1)). On July 13, 2007,
    following a sentencing hearing, the district court determined
    that Mayer’s prior convictions were qualifying offenses under
    the ACCA, and sentenced Mayer to 180 months imprison-
    ment, followed by five years of supervised release.
    STANDARDS OF REVIEW
    We review de novo a district court’s denial of a motion to
    suppress. United States v. Lopez, 
    474 F.3d 1208
    , 1212 (9th
    Cir. 2007). We review a district court’s underlying factual
    findings for clear error. 
    Id. We may
    affirm the denial of a
    motion to suppress “on any basis fairly supported by the
    record.” United States v. Todhunter, 
    297 F.3d 886
    , 889 (9th
    Cir. 2002) (internal quotation marks omitted). We also review
    de novo whether a prior conviction is a predicate felony under
    the ACCA. United States v. Grisel, 
    488 F.3d 844
    , 846 (9th
    Cir. 2007) (en banc).
    DISCUSSION
    I.   Motion to Suppress
    Mayer first argues that the officers illegally entered his
    backyard and that, consequently, their observations of crimi-
    nal activity were tainted. Mayer therefore contends that the
    officers’ observations while in his backyard were improperly
    included in the affidavit supporting the search warrant. We
    disagree.
    [1] In determining whether a search is reasonable, we
    examine the “totality of the circumstances” in a “common-
    sense” manner. United States v. Diaz, 
    491 F.3d 1074
    , 1078
    (9th Cir. 2007). Because probationers enjoy only a “condi-
    tional liberty properly dependent on observance of special
    3310                UNITED STATES v. MAYER
    [probation] restrictions,” states may constitutionally permit
    probation officers to conduct searches without a warrant and
    with less than probable cause. Griffin v. Wisconsin, 
    483 U.S. 868
    , 873-880 (1987) (alteration in original) (quoting Mor-
    rissey v. Brewer, 
    408 U.S. 471
    , 480 (1972)). Thus, warrant-
    less searches of probationers’ residences are permissible
    under the Fourth Amendment when they are authorized by a
    condition of probation and supported by reasonable suspicion
    of criminal activity. United States v. Knights, 
    534 U.S. 112
    ,
    121-22 (2001).
    [2] Even though officers only entered Mayer’s backyard
    during the probation search, the conditions of Mayer’s proba-
    tion authorized a warrantless search of his entire residence.
    One condition of Mayer’s probation was that he “[p]ermit the
    probation officer to visit [him] or [his] work site or residence
    and to conduct a walk-through of the common areas and of
    the rooms in the residence occupied by or under [his] con-
    trol.” Another condition was that he had to “[c]onsent to the
    search of person, vehicle or premises upon . . . request . . . if
    the supervising officer has reasonable grounds to believe that
    evidence of a violation will be found.”
    [3] There is no doubt that the Parole and Probation officers
    had a “reasonable suspicion” of criminal activity. Parole and
    Probation officers received two phone calls — one from a
    neighbor and one from an anonymous source — in which the
    callers reported that Mayer was selling marijuana, and that he
    was in possession of a firearm.
    [4] Before law enforcement officers may conduct a war-
    rantless probation search, however, they must also have prob-
    able cause to believe that the probationer actually lives at the
    residence searched. See United States v. Howard, 
    447 F.3d 1257
    , 1262 (9th Cir. 2006); Motley v. Parks, 
    432 F.3d 1072
    ,
    1079-80 (9th Cir. 2005) (en banc). In Illinois v. Gates, 
    462 U.S. 213
    , 233-34, 243-46 (1983), the Supreme Court held that
    probable cause may be established based on a tip from an
    UNITED STATES v. MAYER                  3311
    anonymous informant if there are sufficient indicia of reliabil-
    ity. Such indicia include the informant’s history of providing
    accurate information on previous occasions, a detailed
    description of the alleged wrongdoing that the informant wit-
    nessed first-hand, the provision of details not easily obtained
    or predicted, or the police’s ability to corroborate the informa-
    tion. 
    Id. [5] The
    district court correctly determined that the officers
    had probable cause to believe that Mayer resided at 103 Han-
    sen Lane on the day of the search. First, Mayer had previously
    resided at the Hansen Lane address, providing some basis for
    the officers to believe that he might be residing there again.
    When Mayer reported his change of address to the Davis
    Street address, he indicated that the move was “temporary.”
    The fact that Mayer had absconded from probation presum-
    ably meant that Rauch had been unable to locate Mayer at the
    Davis Street address.
    [6] Second, in February 2004, one of Mayer’s Hansen Lane
    neighbors called Rauch to report that Mayer was residing at
    103 Hansen Lane and likely selling drugs from the residence.
    Although this information was provided by an informant,
    Rauch testified that she knew the neighbor’s name and
    address, had known him for a long time, and trusted him. The
    information provided by the neighbor was consistent with
    Mayer’s previous convictions for marijuana offenses, and it
    tended to show that Mayer was living at the Hansen Lane
    address. See 
    Gates, 462 U.S. at 243-45
    .
    [7] Third, on the day of the search, McFarland received an
    anonymous phone call informing her that Mayer could be
    found at 103 Hansen Lane. The caller knew that Mayer had
    absconded from probation, believed Mayer had a gun and a
    marijuana growing operation, and knew about a possible
    escape route through the backyard. These facts were arguably
    specific details not readily known by the public, and they
    were corroborated by Mayer’s previous residence at 103 Han-
    3312                    UNITED STATES v. MAYER
    sen Lane, his history of marijuana and firearms offenses, the
    fact that he had actually absconded from parole, and McFar-
    land’s subsequent observation of a possible escape route. See
    
    id. at 234,
    243-45.
    [8] Finally, before McFarland entered the backyard of 103
    Hansen Lane, a man who lived directly across the street told
    her that Mayer lived there alone. This provided further cor-
    roboration that Mayer was actually living at the Hansen Lane
    address.3 Thus, under the totality of the circumstances, the
    officers had probable cause to believe that Mayer was living
    at 103 Hansen Lane on the date of the search. Accordingly,
    we hold that the district court correctly ruled that the officers’
    warrantless entry into Mayer’s backyard did not violate his
    Fourth Amendment rights, and the officers’ observations of
    criminal activity were properly included in the affidavit sup-
    porting the search warrant.
    We next turn to Mayer’s argument that the district court
    erred by failing to suppress the firearm found in his residence.
    As discussed above, the officers could have conducted a con-
    stitutionally permissible warrantless search of Mayer’s entire
    residence. The officers, however, went an extra step and
    obtained a search warrant before entering Mayer’s residence.
    “A search warrant, to be valid, must be supported by an affi-
    davit establishing probable cause.” United States v. Jawara,
    
    474 F.3d 565
    , 582 (9th Cir. 2007) (internal quotation marks
    3
    Mayer asserts that the district court should not have relied on this infor-
    mation because, by the time that McFarland spoke with the neighbor,
    other officers had already entered the backyard and made tainted observa-
    tions of the marijuana growing operation. That argument is not persuasive,
    however, because the affidavit for the search warrant was based only on
    information provided by McFarland (who at that point in time had not yet
    entered the backyard or talked to any officer who had), and Deputies
    Franklin and Thomas (who were not yet at the scene). See Segura v.
    United States, 
    468 U.S. 796
    , 814-15 (1984) (holding that evidence
    obtained by officers prior to their illegal entry was not subject to exclu-
    sion).
    UNITED STATES v. MAYER                  3313
    omitted) (quoting United States v. Stanert, 
    762 F.2d 775
    , 778
    (9th Cir. 1985)).
    [9] Even if the conditions of Mayer’s probation had not
    authorized the search of his residence, the totality of the cir-
    cumstances indicate that the search warrant was supported by
    probable cause. See 
    Gates, 462 U.S. at 230-31
    . The affidavit
    supporting the search warrant established that, in Mayer’s
    backyard, officers had heard a loud buzzing noise, observed
    growing marijuana, smelled the odor of growing marijuana,
    and saw a PVC pipe consistent with a hydroponic marijuana
    growing operation. Although these observations alone suffi-
    ciently established probable cause for the search warrant, they
    also corroborated the information received by Parole and Pro-
    bation officers from informants, further supporting probable
    cause. Additionally, Mayer admitted that there was marijuana
    in the house after he and his brother came outside. The district
    court therefore properly held that the search of Mayer’s resi-
    dence did not violate the Fourth Amendment, and properly
    denied Mayer’s motion to suppress the firearm.
    II.    Predicate Offenses Under the ACCA
    [10] “The Armed Career Criminal Act imposes a special
    mandatory 15-year prison term upon felons who unlawfully
    possess a firearm and who also have three or more previous
    convictions for committing certain drug crimes or ‘violent
    felon[ies].’ ” Begay v. United States, 
    128 S. Ct. 1581
    , 1583
    (2008) (brackets in original) (quoting 18 U.S.C. § 924(e)(1)).
    The district court held that Mayer’s prior burglary conviction
    was a “violent felony” under the ACCA, and that Mayer’s
    other two prior convictions were “serious drug offenses”
    under the ACCA.
    A.    Mayer’s Burglary Conviction
    [11] Mayer argues that the district court erred by holding
    that his 1994 Oregon conviction for first-degree burglary
    3314                UNITED STATES v. MAYER
    qualified as a predicate “violent felony.” The ACCA defines
    a “violent felony” as any crime punishable by imprisonment
    of more than a 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.
    See 18 U.S.C. § 924(e)(2)(B).
    [12] To determine whether Mayer’s state conviction for
    burglary constitutes generic “burglary” under the ACCA, we
    first apply the categorical approach set forth in Taylor v.
    United States, 
    495 U.S. 575
    , 599-602 (1990). Under the cate-
    gorical approach, we look only to the state’s statutory defini-
    tion of the crime, and not to the specific conduct underlying
    the conviction. See United States v. Wenner, 
    351 F.3d 969
    ,
    972 (9th Cir. 2003). A state conviction is a predicate “burgla-
    ry” offense if it has “the basic elements of unlawful or unpriv-
    ileged entry into, or remaining in, a building or structure, with
    intent to commit a crime.” 
    Taylor, 495 U.S. at 599
    .
    Under Oregon law, a person commits first-degree burglary
    if he
    violates [the second degree burglary statute] and the
    building is a dwelling, or if in effecting entry or
    while in a building or in immediate flight therefrom
    the person: (a) Is armed with a burglary tool or theft
    device . . . or a deadly weapon; (b) Causes or
    attempts to cause physical injury to any person; or
    (c) Uses or threatens to use a dangerous weapon.
    Or. Rev. Stat. § 164.225(1). A person commits second-degree
    burglary if he “enters or remains unlawfully in a building with
    intent to commit a crime therein.” Or. Rev. Stat. § 164.215(1).
    A “building” is, “in addition to its ordinary meaning . . . any
    booth, vehicle, boat, aircraft or other structure adapted for
    overnight accommodation of persons or for carrying on busi-
    UNITED STATES v. MAYER                  3315
    ness therein.” Or. Rev. Stat. § 164.205(1). A “dwelling” in
    Oregon is defined as a “building which regularly or intermit-
    tently is occupied by a person lodging therein at night,
    whether or not a person is actually present.” Or. Rev. Stat.
    § 164.205(2).
    [13] 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. Cf. 
    Taylor, 495 U.S. at 599
    . Although we held in
    United States v. Hunt, 
    925 F.2d 1181
    (9th Cir. 1991), that
    first-degree burglary under Oregon Revised Statutes section
    164.225 was categorically a generic burglary, Hunt has been
    undermined by our subsequent en banc opinion in United
    States v. Grisel, 
    488 F.3d 844
    (9th Cir. 2007) (en banc).
    [14] In Grisel, we held that Oregon’s second-degree bur-
    glary statute defined burglary more broadly than the generic
    definition because it included entries into booths, vehicles,
    boats, or aircraft. See 
    id. at 850-52.
    In so holding, we
    explained that, in Taylor, the Supreme Court made clear that
    the generic term “building or structure” was limited to struc-
    tures designed for occupancy and intended for use in one
    place. See 
    Grisel, 488 F.3d at 848-49
    . In Grisel, we also
    expressly overruled prior cases, including United States v.
    Sweeten, 
    933 F.2d 765
    (9th Cir. 1991), which had held that
    non-buildings (such as vehicles) adapted for overnight accom-
    modation qualified as generic “building[s] or structure[s].” 
    Id. at 851
    n.5. Although our en banc opinion in Grisel did not
    expressly overrule Hunt, the two cases are irreconcilable
    because Oregon’s first-degree burglary statute also encom-
    passes Oregon’s second-degree burglary statute. Thus, first
    degree burglary in violation of Oregon Revised Statutes sec-
    tion 164.225 does not categorically satisfy the generic defini-
    tion of burglary. See Or. Rev. Stat. §§ 164.205(1)-(2),
    164.225(1).
    3316                    UNITED STATES v. MAYER
    [15] As discussed, the ACCA enumerates four violent felo-
    nies as predicate offenses for the fifteen year minimum sen-
    tence: burglary, arson, extortion, and offenses involving the
    use of explosives. See 18 U.S.C. § 924(e)(2)(B)(ii). A non-
    enumerated offense, however, may categorically qualify as a
    predicate violent felony under the ACCA’s “residual clause”4
    if it “otherwise involves conduct that presents a serious poten-
    tial risk of physical injury to another,” and is similar to an
    enumerated predicate felony. Id.; see 
    Begay, 128 S. Ct. at 1585-86
    .
    We apply the categorical approach to determine whether an
    offense poses a serious potential risk of physical injury. See
    James v. United States, 
    127 S. Ct. 1586
    , 1593-94 (2007). Our
    inquiry is not whether “every conceivable factual offense cov-
    ered by a statute” presents a serious potential risk of physical
    injury, but rather whether, “in the ordinary case” conduct fall-
    ing within the state statute presents such a risk. 
    Id. at 1597.
    In the context of state burglary statutes, the Supreme Court
    explained:
    The main risk of burglary arises not from the simple
    physical act of wrongfully entering onto another’s
    property, but rather from the possibility of a face-to-
    face confrontation between the burglar and a third
    party — whether an occupant, a police officer, or a
    bystander — who comes to investigate. That is, the
    risk arises . . . from the possibility that an innocent
    person might appear while the crime is in progress.
    
    Id. at 1594-95.
    The Supreme Court has rejected arguments that canons of
    statutory construction require an interpretation of the residual
    clause that only allows burglary to qualify as a violent felony
    4
    This circuit also refers to the “residual” clause as the “catchall” clause
    or the “otherwise” clause. 
    Jennings, 515 F.3d at 990
    .
    UNITED STATES v. MAYER                  3317
    under the residual clause if it constitutes generic burglary
    under the Taylor definition. In James, the Supreme Court
    explained that the residual clause may “cover conduct that is
    outside the strict definition of, but nevertheless similar to,
    generic burglary.” 
    James, 127 S. Ct. at 1600
    (citing 
    Taylor, 495 U.S. at 600
    n.9). The Supreme Court has explained that
    Congress did not intend the enumerated offenses in the
    ACCA to be an exhaustive list of qualifying predicate
    offenses, reasoning that Congress singled out the enumerated
    offenses because, despite technically being property offenses,
    they often created a significant risk of bodily injury. See
    
    James, 127 S. Ct. at 1592-93
    . Most recently, the Supreme
    Court has explained that the four enumerated felonies in
    § 924(e)(2)(B)(ii) “illustrate the kinds of crimes that fall
    within the [ACCA’s] scope.” 
    Begay, 128 S. Ct. at 1585
    .
    Although the ACCA does not cover “every crime that pre-
    sents a serious potential risk of physical injury to another,” it
    does cover crimes “similar” to the ACCA’s listed examples.
    
    Id. (internal quotation
    marks omitted).
    We previously declined to adopt an interpretation of the
    residual clause under the categorical approach or the modified
    categorical approach to cover offenses that were similar to an
    enumerated offense, because such an interpretation would
    render the ACCA’s inclusion of the enumerated offenses in
    the same section to be “surplusage.” United States v. Fish,
    
    368 F.3d 1200
    , 1204 (9th Cir. 2004) (noting that an interpre-
    tation of “the catchall clause under the categorical approach
    to cover possession of a ‘destructive device’ . . . or under the
    modified categorical approach to cover possession of a ‘pipe
    bomb,’ would render the provision’s specific inclusion of ‘use
    of explosives’ in the same section surplusage”). Fish does not,
    however, prevent us from finding that a non-enumerated
    offense falls under the ACCA’s residual clause when the non-
    enumerated offense “is outside the strict definition of, but
    nevertheless similar to, generic burglary.” See 
    James, 127 S. Ct. at 1600
    . Accordingly, we may find that Oregon’s first-
    degree burglary statute falls under the ACCA’s residual
    3318                   UNITED STATES v. MAYER
    clause if it does not implicate the statutory construction con-
    cerns found in Fish. We conclude that Oregon’s first-degree
    burglary statute does not implicate those concerns.
    [16] Fish’s conviction for possessing a pipe bomb could not
    fall under the ACCA’s residual clause, because the ACCA
    explicitly prohibits “use,” but says nothing about “possession”
    of explosives, and we could not square this omission with the
    residual clause without making the “use” language superflu-
    ous. 
    Fish, 368 F.3d at 1204
    . Mayer’s conviction under Ore-
    gon’s first-degree burglary statute, however, does not
    implicate the same concern, and is exactly the type of crime
    Congress intended to include under the ACCA. Mayer was
    convicted of an offense that is very similar, though not identi-
    cal, to the generic burglary offense. We do not render any part
    of the ACCA superfluous by finding Oregon first-degree bur-
    glary similar to generic burglary, and, therefore, consistent
    with the ACCA’s residual clause.
    The analysis turns on both the plain language of state stat-
    utes and how state courts actually apply them. See 
    James, 127 S. Ct. at 1594
    .5 Mayer’s argument that Oregon’s definition of
    burglary does not categorically pose a serious potential risk of
    physical injury, because a person may commit the offense in
    ways that pose little or no risk of face-to-face confrontation,
    is unpersuasive. A person could theoretically be convicted
    under section 164.225 based on facts that seem inherently
    non-confrontational, such as by entering a building that is not
    adapted for overnight accommodation or business (e.g., an
    5
    It is not clear how narrowly Congress intended the residual clause to
    be interpreted. See 
    James, 127 S. Ct. at 1591-93
    (explaining that neither
    the plain language of the residual clause nor its legislative history sup-
    ported a narrow interpretation); see also 
    Taylor, 495 U.S. at 588-90
    , 596-
    99 (explaining that, in enacting the ACCA, Congress was concerned with
    offenses that created an inherent potential for harm to people). But cf.
    
    Begay, 128 S. Ct. at 1586
    (explaining that Congress did not intend the
    residual clause to cover every offense that involved a substantial risk of
    physical force against the person or property of another).
    UNITED STATES v. MAYER                         3319
    abandoned structure), while in possession of a burglary tool
    or theft device. See State v. Warner, 
    298 Or. 640
    (1985) (first-
    degree burglary conviction for breaking into a locked barn
    with a metal signpost was reversed on the ground that the
    signpost was not a “burglary tool or theft device”). It is
    unlikely, under those facts, that the burglar would have a face-
    to-face confrontation with an occupant of the building, since
    there are no occupants. It is therefore possible to imagine a
    scenario in which a violation of Oregon Revised Statutes sec-
    tion 164.225 does not pose a realistic risk of confrontation or
    injury, as it is in all burglary cases.
    [17] The Supreme Court, however, has made it clear that
    the risk of face-to-face confrontation stems not only from
    encountering the occupant of a building, but also from — for
    example — a police officer or bystander who comes to inves-
    tigate. See 
    James, 127 S. Ct. at 1594
    -95. Additionally, the law
    does not require “every conceivable factual offense covered
    by a statute” to present a serious potential risk of physical
    injury. 
    Id. at 1597.
    Most of the cases applying Oregon
    Revised Statutes section 164.225 involve entries into places
    that are occupied, or are likely to be occupied, by people. See,
    e.g., State v. Kautz, 
    39 P.3d 937
    (Or. Ct. App. 2002) (entry
    into workshop located near victims’ home); State v. Sigman,
    
    919 P.2d 45
    (Or. Ct. App. 1996) (entry into occupied motor
    home); State v. McDonald, 
    712 P.2d 163
    (Or. Ct. App. 1986)
    (entry into a travel trailer parked in the owner’s driveway);
    State v. Spencer, 
    545 P.2d 611
    (Or. Ct. App. 1976) (entry into
    a fishing vessel; defendant conceded that the vessel was a dwell-
    ing).6 The risk of a physical confrontation resulting from a
    burglar’s entry in these cases is comparable to that posed by
    6
    There is, however, no case law narrowing the statute to require entry
    into a place likely to be occupied by a person. Cf. 
    James, 127 S. Ct. at 1594
    (concluding that although the statutory language of Florida’s
    attempted burglary statute was broad, the Florida courts had considerably
    narrowed it to require an overt act, rather than merely preparatory activity
    that posed no real danger of harm to others).
    3320                    UNITED STATES v. MAYER
    a burglar’s entry into a generic “building or structure.” See
    
    James, 127 S. Ct. at 1594
    -95. A burglar’s entry also typically
    involves, much like generic burglary, the kind of “purposeful,
    violent, and aggressive conduct” that makes it more likely that
    the “offender, later possessing a gun, will use the gun deliber-
    ately to harm a victim.” 
    Begay, 128 S. Ct. at 1586
    .
    [18] Under Oregon Revised Statutes section 164.235(2), a
    “burglary tool or theft device” is by definition a very danger-
    ous object.7 Therefore, even if there is a reduced risk of physi-
    cal confrontation (e.g., because the building is abandoned), if
    a confrontation does occur then there is a serious potential
    risk that it will result in physical injury to another. See United
    States v. Rendon-Duarte, 
    490 F.3d 1142
    , 1147 (9th Cir. 2007)
    (explaining that “conduct involving a dangerous instrument
    create[s] significant risks of bodily injury or confrontation
    that might result in bodily injury” (brackets in original) (inter-
    nal quotation marks omitted)).
    For these reasons, the district court did not err by determin-
    ing that first-degree burglary under Oregon Revised Statutes
    section 164.225 is categorically a “violent felony” under the
    ACCA’s residual clause.8 Although our interpretation of the
    7
    Oregon Revised Statutes section 164.235(2) defines a “burglary tool or
    theft device” as “an acetylene torch, electric arc, burning bar, thermal
    lance, oxygen lance or other similar device capable of burning through
    steel, concrete or other solid material, or nitroglycerine, dynamite, gun-
    powder or any other explosive, tool, instrument or other article adapted or
    designed for committing or facilitating a forcible entry into premises or
    theft by a physical taking”.
    8
    The district court did not rule on whether Mayer’s first-degree burglary
    conviction was generic burglary under the modified categorical approach.
    We generally adopt a modified categorical approach once a determination
    has been made that an offense does not categorically qualify as a crime of
    violence. See Shepard v. United States, 
    544 U.S. 13
    , 26 (2005). We then
    expand the inquiry to include “the terms of the charging document, the
    terms of a plea agreement or transcript of colloquy between judge and
    defendant in which the factual basis for the plea was confirmed by the
    UNITED STATES v. MAYER                        3321
    residual clause encompasses state statutes that define burglary
    more broadly than generic burglary, we do not intend to sub-
    sume offenses in which there is little risk of physical injury.
    The Supreme Court limited the scope of the residual clause to
    encompass only those felonies that — in addition to present-
    ing a serious potential risk of physical injury — are similar to
    the four enumerated felonies and that involve the “deliberate
    kind of behavior associated with violent criminal use of fire-
    arms.” 
    Begay, 128 S. Ct. at 1587
    .
    [19] We therefore hold that first-degree burglary under
    Oregon Revised Statutes section 164.225 categorically poses
    a serious potential risk of physical injury to people present in
    a dwelling at the time of a burglary, and to people in the
    immediate area of a building if a confrontation does occur.
    The risk of potential injury due to a face-to-face confrontation
    between the burglar and a third party is not lessened simply
    because, under Oregon law, the dwelling does not have to be
    a generic “building” or “structure,” or because the offense
    does not necessarily involve fleeing the scene of a burglary.
    “[I]n the ordinary case,” a violation of Oregon Revised Stat-
    utes section 164.225 will involve conduct that presents a seri-
    ous potential risk of physical injury to another, in a manner
    similar to generic burglary. 
    James, 127 S. Ct. at 1597
    ; see
    
    Begay, 128 S. Ct. at 1584-85
    . Interpreting the ACCA’s resid-
    defendant, or to some comparable judicial record of this information.” 
    Id. We have
    previously concluded “that generally the modified categorical
    approach may be applied in determining whether a conviction qualifies as
    a violent felony under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause . . . [even
    though] we have expressed doubt [in the past] as to whether the modified
    categorical approach applies to the catchall clause in U.S.S.G. § 4B1.2(a),
    as well as in § 924(e)(2)(B)(ii).” 
    Jennings, 515 F.3d at 990
    . Although we
    may affirm on any ground supported by the record, see United States v.
    Cortez-Arias, 
    403 F.3d 1111
    , 1114 n.7 (9th Cir. 2005), we find that an
    analysis of the modified categorical approach is unnecessary due to our
    determination that the offense categorically qualifies as a crime of vio-
    lence under the residual clause.
    3322                   UNITED STATES v. MAYER
    ual clause to include Oregon Revised Statutes section 164.225
    does not therefore extend its coverage in an unlimited manner.
    B.    Mayer’s Prior Drug Convictions
    The ACCA defines a “serious drug offense” as “an offense
    under State law, involving manufacturing, distributing, or
    possessing with intent to manufacture or distribute, a con-
    trolled substance . . . for which a maximum term of imprison-
    ment of ten years or more is prescribed by law.” 18 U.S.C.
    § 924(e)(2)(A)(ii) (emphasis added). Mayer contends that his
    two prior Oregon convictions for unlawful manufacture and
    delivery of marijuana were not “serious drug offenses” under
    the ACCA, because Oregon law does not “prescribe” a maxi-
    mum term of imprisonment of ten years or more for those
    offenses. Mayer reasons that, although the statutory maximum
    sentence for these offenses is more than ten years,9 the maxi-
    mum sentence that may actually be imposed under Oregon’s
    sentencing guidelines is only 90 months.
    [20] Mayer’s argument is foreclosed by United States v.
    Parry, 
    479 F.3d 722
    (9th Cir. 2007).10 In Parry, we held that,
    for purposes of determining whether a prior drug conviction
    is a “serious drug offense” under the ACCA, the maximum
    sentence “prescribed by law” is that which is set forth by the
    statute of conviction, and not by the state sentencing guide-
    lines. 
    Id. at 724-26;
    see also United States v. Murillo, 422
    9
    Under Oregon Revised Statutes sections 161.605(1), 475.840(1)(a),
    and 475.856(2), the statutory maximum sentence for manufacture or deliv-
    ery of marijuana is 20 years. Although Mayer’s indictments for these
    offenses refer to violations of Oregon Revised Statutes section 475.992,
    that provision was subsequently renumbered.
    10
    The defendant in Parry argued, similar to Mayer in this case, that
    “under the Oregon Sentencing Guidelines, no defendant could ever be sen-
    tenced to 10 years in prison for delivery or manufacture of a Schedule II
    controlled substance . . . regardless of his criminal history. Instead, the
    maximum sentence for that crime under the guidelines is 90 
    months.” 479 F.3d at 724
    .
    UNITED STATES v. MAYER                     
    3323 F.3d 1152
    , 1155 (9th Cir. 2005) (holding that, for purposes of
    determining whether a state criminal conviction is a crime
    punishable by a term exceeding one year under 18 U.S.C.
    § 922(g)(1), the maximum sentence is defined by the state
    criminal statute, not the maximum possible sentence that
    could have been imposed on the defendant under the state’s
    sentencing guidelines). We expressly rejected the statutory
    construction argument that Mayer now raises, explaining:
    It is true that 18 U.S.C. § 922(g) requires that the
    predicate offense be “punishable by imprisonment
    for a term exceeding one year,” while ACCA
    requires, for a “serious drug offense,” a “maximum
    term of imprisonment of ten years or more” as “pre-
    scribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii).
    Although the phrasing differs slightly, we conclude
    that neither formulation suggests that we look to sen-
    tencing guidelines to the exclusion of the statutes. If
    anything, “punishable” would appear to point more
    specifically to time spent in prison, while “pre-
    scribed by law” would appear to point more to the
    statute. If the former phrase requires that we use the
    statutory maximum, a fortiori, the latter phrase does
    too.
    
    Parry, 479 F.3d at 726
    .
    Although Mayer contends that Parry was wrongly decided,
    it is clear that Parry is controlling precedent in our circuit.
    See, e.g., United States v. Crampton, 
    519 F.3d 893
    , 899 (9th
    Cir. 2008) (holding that Parry foreclosed the defendant’s
    argument that the maximum sentence “prescribed by law”
    was the lower maximum sentence under Oregon’s sentencing
    guidelines); United States v. Ankeny, 
    502 F.3d 829
    , 839 (9th
    Cir. 2007) (same). Even if we agreed with Mayer that Parry
    was wrongly decided, a three-judge panel may not overrule
    the decision of another panel in the absence of intervening
    3324               UNITED STATES v. MAYER
    Supreme Court case law that is “clearly irreconcilable.” Mil-
    
    ler, 335 F.3d at 900
    .
    [21] Because Oregon law prescribes a maximum sentence
    of ten years or more for Mayer’s prior convictions for unlaw-
    ful manufacture and delivery of marijuana, the district court
    did not err by finding that those convictions were “serious
    drug offenses” under the ACCA. See 18 U.S.C.
    § 924(e)(2)(A)(ii). Accordingly, the district court correctly
    imposed the ACCA’s mandatory fifteen year sentence,
    because Mayer was a felon having three or more previous
    convictions for “a violent felony or a serious drug offense.”
    See 
    Jennings, 515 F.3d at 987
    .
    CONCLUSION
    We affirm the district court’s denial of Mayer’s motion to
    suppress. We also affirm the district court’s imposition of the
    ACCA’s mandatory fifteen year minimum sentence.
    AFFIRMED.