United States District Court, C.D. California
ORDER OVERRULING DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT
OTIS D. WRIGHT, II, District Judge.
Defendant Armando Barajas objected to various paragraphs of his Presentence Report ("PSR") in which the United States Probation Office contends that Barajas is a "career offender" under United States Sentencing Guideline § 4B1.1(a). That Guideline provides that a "defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a).
The Government asserts that Barajas's 1985 conviction for first-degree burglary under California Penal Code section 459 constitutes a "crime of violence" under the Guidelines. The Guidelines define a "crime of violence" as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The United States Supreme Court held in Descamps v. United States, 133 S.Ct. 2276 (2013), that a PC 459 conviction does not constitute "burglary" under U.S.S.G. § 4B1.2(a)(2)'s enumerated-felonies clause. But the parties disagree over whether Barajas's first-degree burglary conviction falls under the so-called "residual clause, " that is, whether the conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2).
The Government argues that the PC 459 conviction is a crime of violence under the Ninth Circuit's decision in United States v. Park, 649 F.3d 1175 (9th Cir. 2011). In that case, the Ninth Circuit specifically held that a PC 459 conviction constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2)'s residual clause-the exact issue presented here. The Government also cited a District of Montana decision in which the court found that it had to follow Park even in light of Descamps because the two decisions were not "clearly irreconcilable." United States v. Bell, CR 09-14-H-DWM, 2013 WL 6190281, at *9 (D. Mont. Nov. 26, 2013) (quoting Gonzalez v. Arizona, 677 F.3d 383, 389 (9th Cir. 2012)). Essentially, the Government's position is that the Ninth Circuit has already decided the issue, and the Supreme Court's Descamps decision did not change residual-clause law, so the conviction still qualifies as a crime of violence.
But Barajas points out that the Supreme Court specifically left open whether a PC 459 conviction constitutes a crime of violence under the residual clause. See Descamps, 133 S.Ct. at 2293 n.6. The Court cited an Ninth Circuit interjudge split in which Chief Judge Kozinski dissented from the denial of rehearing en banc in a case in which the Court of Appeals held that a conviction under Oregon's first-degree burglary statute was a crime of violence under the Guideline's residual clause. Id. (citing United States v. Mayer, 560 F.3d 948 (9th Cir. 2009)). Judge Kozinski stated that under the "categorical approach, " the statute did not constitute a crime of violence, because Oregon prosecutes people for nonviolent burglary. Mayer, 560 F.3d at 951-52. Barajas contends that the same approach applies to PC 459 convictions. Since the Supreme Court held in Descamps that courts must use the categorical approach for indivisible statutes, and since PC 459 did not categorically constitute "generic" burglary, a PC 459 conviction would likewise not be a crime of violence under the residual clause.
The Ninth Circuit has determined that there is a two-part test to determine whether a conviction constitutes a "crime of violence" under the residual clause:
First, the conduct encompassed by the elements of the offense, in the ordinary case, must present[ ] a serious potential risk of physical injury to another. Second, the state offense must be roughly similar, in kind as well as in degree of risk posed to those offenses enumerated at the beginning of the residual clause-burglary of a dwelling, arson, extortion, and crimes involving explosives.
United States v. Park, 649 F.3d 1175, 1177-78 (9th Cir. 2011) (citations omitted) (internal quotation marks omitted).
In Park, the Ninth Circuit held that a first-degree burglary conviction under PC 459 constitutes a crime of violence under the residual clause. The court noted that since first-degree residential robbery requires that a defendant enter an inhabited dwelling, Cal. Pen. Code § 460(a), there is an inherent risk of serious violence in the event that a burglar encounters an occupant. 649 F.3d at 1178-80. The California Supreme Court has emphasized this danger concern. People v. Davis, 18 Cal.4th 712, 721 (1998). Further, burglary is of course "roughly similar" to generic burglary. Park, 649 F.3d at 1180.
In Descamps, the Supreme Court specifically held that a PC 459 conviction does not constitute "burglary" under U.S.S.G. § 4B1.2(a)(2)'s enumerated-felonies clause. 133 S.Ct. at 2293. But the Court expressly declined to determine whether it would also be a crime of violence under the residual clause-the issue in Barajas's case. Id. at n.6.
The Court concluded that a sentencing court must use the "categorical" approach to determine whether PC 459 constitutes a crime of violence because PC 459 is an "indivisible statute." Id. at 2285-86. This means that a sentencing court cannot look beyond the crime's elements, such as reviewing the charging document or jury instructions. PC 459 is "indivisible" because the crime does not include punishment for both generic burglary and California's more relaxed version of burglary-it only covers the relaxed, no-unlawful-entry-needed burglary. Taylor v. United States, 495 U.S. 575, 599 (1990).
The Court concluded that since PC 459 does not include an unlawful-entry element, it does not constitute "generic" burglary. Descamps, 133 S.Ct. at 2285-86. Generic burglary means that the statute penalizes the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599. PC 459 thus is not a crime of violence under the U.S.S.G. § 4B1.2(a)(2)'s enumerated-felonies clause.
The issue of whether a PC 459 conviction still qualifies as a crime of violence under the Guideline's residual clause is an unsettled issue in light of Descamps. But as the court in Bell concluded, a district court has no power to change circuit law unless the two decisions are "clearly irreconcilable." 2013 WL 6190281, at *5. The court concluded that Descamps and Park were not, because the Ninth Circuit relied on residual-clause Supreme Court cases such as James v. United States, 550 U.S. 192 (2007), Begay v. United States, 553 U.S. 137 (2008), and Sykes v. United States, 131 S.Ct. 2267 (2011), to conclude that PC 459 fell under the residual clause. The majority opinion in Descamps did not even cite those cases-let alone overrule or limit them.
The district court's decision in Bell is persuasive. Whether a particular statute qualifies as a crime of violence under the enumerated-felonies clause or under the residual clause involves two distinct inquiries. As the Court in Descamps makes clear, one must use the categorical approach to determine whether a conviction under an indivisible statute like ...