United States v. Tony Biddles , 707 F. App'x 461 ( 2017 )

FILED
NOT FOR PUBLICATION SEP 07 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 15-50463
)
Plaintiff-Appellee, ) D.C. No. 2:10-cr-00397-DMG-1
)
v. ) MEMORANDUM*
)
TONY BIDDLES, )
)
Defendant-Appellant. )
)
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted July 13, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Tony Biddles appeals his sentence for violating his terms of supervised
release by committing kidnapping1 and robbery2 in the State of California. We
affirm in part and vacate and remand in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Cal. Penal Code § 207(a).
2
Id. § 211 (hereafter § 211).
(1) The district court determined that Biddles’ § 211 conviction was a
crime of violence and was therefore a Grade A violation under the United States
Sentencing Commission’s policy statement for supervised release violations,1 and
the Commentary thereto.2 We agree.
Biddles first asserts that § 211 is not a crime of violence because a violation
of that section is not categorically a crime of violence as defined in USSG
§4B1.2(a) and its Commentary. However, we have already specifically determined
that a violation of § 211 is categorically3 a crime of violence because any
conviction under that section is either generic robbery or generic extortion.4
Biddles attempts to avoid the force of our existing case law in a number of
ways, none of which is persuasive: (a) he first suggests that we should now ignore
1
USSG §7B1.1(a)(1)(A)(i), p.s. Unless otherwise indicated, all references
are to the November 1, 2014, version of the Guidelines.
2
Id. at comment. (n.2). That application note refers to USSG §4B1.2(a) and
the Commentary thereto. Id.
3
See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160, 109
L. Ed. 2d 607 (1990); see also Descamps v. United States, __ U.S. __, __, 133 S.
Ct. 2276, 2283–85, 186 L. Ed. 2d 438 (2013).
4
See United States v. Becerril-Lopez, 541 F.3d 881, 890–93 (9th Cir. 2008);
see also United States v. Chavez-Cuevas, 862 F. 3d 729, 740 (9th Cir. 2017);
United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (per curiam).
2
the Commentary,5 but there is no inconsistency between the Commentary and the
Guideline itself;6 (b) he then argues that § 211 is not categorically a crime of
robbery7 or categorically a crime of extortion,8 but that matters not because it does
not speak to the underlying basis of our decisions, which declared that it was
categorically one or the other;9 (c) he goes on to argue that our case law misapplied
the modified categorical test approach,10 but it did no such thing because it applied
the categorical test only;11 and (d) as a final argument he asserts that a later
amendment to the Guideline,12 which narrowed the definition of extortion, should
5
USSG §4B1.2, comment. (n.1).
6
See Stinson v. United States, 508 U.S. 36, 38, 45, 113 S. Ct. 1913, 1915,
1919, 123 L. Ed. 2d 598 (1993); United States v. Bernardo, 818 F.3d 983, 985 (9th
Cir. 2016). We note also that the Guideline and its Commentary are not subject to
vagueness challenges under the Due Process Clause. See Beckles v. United States,
__ U.S. __, __, 137 S. Ct. 886, 890, 197 L. Ed. 2d 145 (2017).
7
See Becerril-Lopez, 541 F.3d at 891.
8
See United States v. Dixon, 805 F.3d 1193, 1196–97 (9th Cir. 2015).
9
We have decided that it necessarily was either robbery or extortion, and
Dixon, id. at 1196–97, does not speak to that point.
10
See Descamps, __ U.S. at __, 133 S. Ct. at 2283–85.
11
See Becerril-Lopez, 541 F.3d at 893 n.10.
12
See USSG Supp. App. C, amend. 798, at 131 (Nov. 1, 2016); USSG
§4B1.2, comment. (n.1) (2016).
3
be applied retroactively because it was merely clarifying,13 but the amendment was
substantive in character. The Guideline Commission did not dub it retroactive, did
not say it was a clarification, and did not resolve a circuit conflict,14 but simply
chose to focus on a subset of extortioners by narrowing the long-standing
definition of extortion15 for Guideline purposes.
(2) Biddles next argues that the district court procedurally erred16 because
it did not sufficiently explain17 its decision to depart downward from the
sentencing range for Grade A level violations—twenty-four to thirty months18—to
a fifteen-month sentence. If his crime were not a crime of violence, he would have
been in the Grade B category and his sentencing range would have been four to ten
13
See United States v. Johns, 5 F.3d 1267, 1269–70 (9th Cir. 1993).
14
See United States v. Morgan, 376 F.3d 1002, 1010–11 (9th Cir. 2004).
15
See Becerril-Lopez, 541 F.3d at 891–92; see also Scheidler v. Nat’l Org.
for Women, Inc., 537 U.S. 393, 409–10, 123 S. Ct. 1057, 1068, 154 L. Ed. 2d 991(2003); United States v. Nardello, 393 U.S. 286, 295–96, 89 S. Ct. 534, 539, 21 L.
Ed. 2d 487 (1969).
16
See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc);
see also United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir.
2010).
17
See Carty, 520 F.3d at 993.
18
USSG §7B1.4(a), p.s. (Grade A(2)).
4
months.19 Despite the fact that the district court did vary downward, Biddles
asserts that it should have explained why it did not vary still further downward, a
kind of substantive reasonableness argument. See United States v. Lloyd, 807 F.3d
1128, 1145–46 (9th Cir. 2015). We disagree. The district court carefully
explained its reason for the sentence it imposed. The district court’s explanation
was sufficient “to permit meaningful appellate review.” Carty, 520 F.3d at 992.
The court stated that Biddles’ characteristics, including his disrespect of the law,
his inability to adhere to the terms of his supervised release, the need to deter him
from further criminal conduct, and the need to protect the public from further
depredations were the reasons that the fifteen-month sentence was necessary. The
district court did not err.
(3) Biddles finally objects to the drug testing and treatment conditions in
the new supervised release sentence which is to follow his term of imprisonment.
But drug testing is an essentially mandatory term of supervised release. See 18
U.S.C. § 3583(d); see also United States v. Carter, 159 F.3d 397, 399 (9th Cir.
1998). Of course, the district court had the discretion to suspend the condition, if it
19
Id. (Grade B).
5
saw “a low risk of future substance abuse,”20 but given Biddles’ past history and
his relatively rapid relapse into criminal activity, we see no error in the district
court’s declining to do so here.
However, while there is some basis for ordering Biddles’ participation in a
drug treatment program,21 there is no evidence that he had actually been using
drugs during the past seventeen or eighteen years,22 and the government has
waived that issue by failing to address it in its briefing before us.23 We, therefore,
vacate that condition of supervised release and remand with instructions that the
condition be stricken from the judgment.
AFFIRMED in part, and VACATED and REMANDED in part.
20
18 U.S.C. §§ 3563(a)(5), 3583(d); see also United States v. Jeremiah, 493
F.3d 1042, 1047 (9th Cir. 2007).
21
Cf. Carter, 159 F.3d at 401.
22
Cf. United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003).
23
See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en
banc).
6
FILED
United States v. Biddles, No. 15-50463
SEP 07 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
REINHARDT, Circuit Judge, dubitante in part and concurring in part:
I have serious doubts as to the validity of the Commission’s inclusion of
robbery in the definition of crime of violence by means of the Commentary when
the only possible basis for its doing so appears to have been its reliance on a clause
in the Guideline that it itself has now removed, apparently because it cannot
properly serve as the basis for such an interpretation.
This case asks us to decide, for the first time, whether the inclusion of
robbery in the Commentary is binding.1 Commentary is binding only if it interprets
or explains the text of the relevant Guideline. United States v. Stinson, 508 U.S. 36(1993). I believe a strong argument can be made that under Johnson v. United
States, 135 S. Ct. 2551 (2015), the Commentary cannot be treated as an
interpretation of the residual clause in the Guideline, an argument that does not
depend on the Due Process Clause and is therefore unaffected by Beckles v. United
States, 137 S. Ct. 886 (2017). Since there is no other language in the text of the
Guideline that the Commentary could be interpreting, this would mean that Cal.
1
We have previously treated it as though it was binding, see United States v.
Harris, 572 F.3d 1065 (9th Cir. 2009) (per curiam), but the question has never
actually been presented to us.
Penal Code § 211 is overbroad and not a crime of violence under the Guideline.
Accordingly, while I concur in all other respects in the memorandum
disposition, I am in doubt as to the correctness of Section (1).
2