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United States v. Spencer

United States Court of Appeals, Ninth Circuit

July 29, 2013

United States of America, Plaintiff-Appellee,
v.
Ashford Kaipo Spencer, Defendant-Appellant.

Argued and Submitted February 13, 2013—Honolulu, Hawaii

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding D.C. No. 1:10-cr-00566-JMS-1

COUNSEL

Pamela O'Leary Tower (argued), Law Office of Pamela O'Leary Tower, Kenwood, California; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for Defendant-Appellant.

Chris A. Thomas (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney, District of Hawaii, Honolulu, Hawaii, for Plaintiff-Appellee.

Before: Susan P. Graber, Jay S. Bybee, and Morgan Christen, Circuit Judges.

SUMMARY[*]

Criminal Law

Affirming a sentence, the panel held that because the risks involved in criminal property damage in the first degree under Hawaii Revised Statutes § 708-820(1)(a) present a serious potential risk of physical injury to another, and that risk is similar to the risks involved in arson and burglary in the ordinary case, a conviction under § 708-820(1)(a) is categorically a crime of violence under the residual clause of § 4B1.2(a)(2), and the defendant is thus subject to the career offender enhancement under U.S.S.G. § 4B1.1.

The panel held that the defendant's claim that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague is foreclosed by Supreme Court precedent.

OPINION

BYBEE, Circuit Judge.

Ashford Kaipo Spencer was convicted of two federal drug-trafficking felonies. At sentencing, the district court determined that Spencer was a "career offender" under § 4B1.1 of the Sentencing Guidelines because Spencer had two prior convictions for "crimes of violence, " as defined in § 4B1.2(a). In making this determination, the district court applied the "categorical approach" to conclude that Spencer's prior conviction for criminal property damage in the first degree under § 708-820(1)(a) of the Hawaii Revised Statutes constituted a conviction for a "crime of violence."

On appeal, Spencer argues that the district court erred in sentencing him as a career offender because § 708-820(1)(a) is not a crime of violence as defined by the Sentencing Guidelines. In the alternative, Spencer argues that the "residual clause" of the definition of "crime of violence" contained in § 4B1.2(a)(2), which the district court concluded applied to him, is unconstitutionally vague.

We agree with the decision of the district court, and therefore hold that § 708-820(1)(a) is categorically a crime of violence under the residual clause of § 4B1.2(a)(2) of the Sentencing Guidelines.[1] Spencer's claim that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague is foreclosed by Supreme Court precedent.

I. FACTS AND PROCEDURAL HISTORY

In 2010, Spencer was convicted of two federal counts of felonious drug trafficking. The U.S. Probation Office originally recommended in its draft Presentence Investigation Report (PIR) that Spencer be treated as a "career offender" under § 4B1.1 of the Sentencing Guidelines, based on Spencer's two prior felony convictions for "crimes of violence"—(1) kidnaping and robbery in the second degree, and (2) criminal property damage in the first degree.

The only prior conviction at issue here is Spencer's conviction for criminal property damage in the first degree under § 708-820(1)(a) of the Hawaii Revised Statutes. Haw. Rev. Stat. § 708-820(1)(a) (1996).

Spencer objected to the categorization of his § 708-820(1)(a) criminal property conviction as a crime of violence. In response to Spencer's objections, the U.S. Probation Office revised its position in its final PIR, recommending that § 708-820(1)(a) not be classified as a crime of violence and that Spencer not be treated as a career offender. The district court, however, disagreed. At sentencing, the district court concluded that Spencer's § 708-820(1)(a) conviction for criminal property damage categorically constituted a crime of violence, as defined in § 4B1.2(a)(2) of the Sentencing Guidelines, and held that Spencer's prior convictions rendered him a "career offender" under § 4B1.1.

Applying the sentencing enhancement based on Spencer's status as a career offender, the district court determined that the sentencing range dictated by the Sentencing Guidelines was 360–480 months. Without the "career offender" finding, the Guidelines range would have been 151–188 months. The district court imposed a sentence of 204 months in prison, significantly below ...


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