United States v. Elisha Pollock , 540 F. App'x 621 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES, No. 11-10667
Plaintiff - Appellee, D. C. No. 4:10-cr-01786-CKJ-
DTF-1
v.
ELISHA WILLIAM POLLOCK, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted May 14, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and MARBLEY, District
Judge.**
Defendant appeals the sentence imposed by the district court for his
conviction for making a false statement during the purchase of a firearm. 18
U.S.C. § 924(a)(1)(A). The district court applied a six-level enhancement to
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for the Southern
District of Ohio, sitting by designation.
Defendant’s base offense level for Defendant’s previous conviction for a felony
crime of violence. Defendant argues the district court erred in applying the
enhancement because the offense for which he was previously convicted, second-
degree burglary under Arizona law, is not a “crime of violence” under the residual
clause of U.S.S.G. § 4B1.2(a)(2). We review de novo a district court’s
interpretation of the Sentencing Guidelines. United States v. Lopez-Patino, 391
F.3d 1034, 1036 (9th Cir. 2004) (per curiam).
Defendant’s argument is stymied by this court’s decisions in United States v.
Park, 649 F.3d 1175 (9th Cir. 2011), and United States v. Terrell, 593 F.3d 1084(9th Cir. 2010). In Terrell, we held that second-degree burglary under Arizona law
is categorically a “violent felony” under the Armed Career Criminal Act of 1984
(the “ACCA”), 18 U.S.C. § 924(e). 593 F.3d at 1093. Furthermore, this Court has
interpreted the term “crime of violence” under the residual clause of U.S.S.G.
§ 4B1.2(a)(2) in a manner consistent with our interpretation of “violent felony”
under the ACCA. See Park, 649 F.3d at 1177. Accordingly, we AFFIRM the
sentence imposed on Defendant by the district court.
Defendant also contends the residual clause of U.S.S.G. § 4B1.2(a)(2) is
unconstitutionally vague. This Court recently considered and rejected this
argument in United States v. Spencer, No. 12-10078, 2013 WL 3870731 (9th Cir.
2
July 29, 2013), where we found this attack to be foreclosed by Supreme Court and
Ninth Circuit precedent. Id. at *10 (citing Sykes v. United States, 131 S. Ct. 2267,
2277 (2011); James v. United States, 550 U.S. 192, 210 n. 6 (2007); and United
States v. Crews, 621 F.3d 849, 852 n. 4, 855-56 (9th Cir. 2010)). Thus, there is no
basis for reversal on this ground.
AFFIRMED.
3