United States v. Matthew Derby , 400 F. App'x 162 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30009
Plaintiff - Appellee, D.C. No. 1:09-cr-30006-PA-1
v.
MEMORANDUM *
MATTHEW SHERIDAN DERBY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted October 4, 2010 **
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
Matthew Sheridan Derby appeals his sentence following his plea of guilty to
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Derby was sentenced to 180 months’ imprisonment pursuant to the Armed Career
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). He argues that the district court
erred in sentencing him to the ACCA mandatory minimum. We have jurisdiction
under 28 U.S.C. § 1291, and we 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). We affirm.
Derby’s relevant criminal history includes prior convictions for: (1)
unlawful delivery of methamphetamine, in violation of Or. Rev. Stat. § 475.890(2);
(2) delivery of a controlled substance, in violation of Or. Rev. Stat. §
475.992(1)(B) (current version at Or. Rev. Stat. § 475.840); and (3) burglary in the
first degree, in violation of Or. Rev. Stat. § 164.225. As explained below, these
prior convictions are predicate offenses for purposes of the ACCA.
This court’s precedent clearly holds that a violation of Oregon’s first-degree
burglary statute, Or. Rev. Stat. § 164.225, is a predicate violent felony for purposes
of the ACCA. United States v. Mayer, 560 F.3d 948, 962 (9th Cir. 2009).
Similarly, violations of Or. Rev. Stat. §§ 475.890(2) and 475.992(1)(B)
qualify as serious drug offenses for purposes of the ACCA. Under Oregon law, a
person violates § 475.890(2) by “deliver[ing] methamphetamine.” A person
violates § 475.992(1)(B) by “manufactur[ing] or deliver[ing] a controlled
substance.”
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Under the ACCA, a state conviction qualifies as a “serious drug offense”
conviction if it “involv[es] manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §
924(e)(2)(A)(ii). Sections §§ 475.890(2) and 475.992(1)(B) are both class B
felonies under Oregon law, which carry a maximum term of imprisonment of ten
years. Or. Rev. Stat. § 161.605(2).
Derby argues that these prior drug convictions do not qualify as “serious
drug offenses” under the ACCA because in both cases he faced a sentencing
maximum of less than ten years under Oregon’s sentencing guidelines. This
argument is foreclosed by United States v. Parry, 479 F.3d 722, 724-25 (9th Cir.
2007), which held that the maximum sentence set forth in the statute, not Oregon’s
sentencing guidelines, determines the “maximum term of imprisonment” for
purposes of the ACCA. Therefore, Derby’s prior convictions for unlawful delivery
of methamphetamine and delivery of a controlled substance are predicate offenses
under the ACCA.
Derby also challenges the district court’s determination that his prior
conviction under Oregon’s second-degree burglary statute was a violent felony for
purposes of the ACCA. The government in turn argues that Derby’s prior
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convictions under Oregon’s attempt to elude a police officer statute are violent
felonies under the ACCA. We need not address these questions because Derby’s
prior convictions for first-degree burglary, unlawful delivery of methamphetamine,
and delivery of a controlled substance are ACCA predicate offenses. With three
predicate offenses, the district court properly determined that the ACCA
enhancement applied to Derby.
AFFIRMED.
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