United States v. Coronado

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50154

Plaintiff-Appellee, D.C. No.

v.  2:08-cr-00317-

ARMANDO JOSEPH CORONADO, DSF-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

February 3, 2010—Pasadena, California

Filed May 3, 2010

Before: Mary M. Schroeder, Raymond C. Fisher and

N. Randy Smith, Circuit Judges.

Opinion by Judge Schroeder

6573

UNITED STATES v. CORONADO 6575

COUNSEL

Jennifer J. Uyeda, Los Angeles, California, for the defendant-

appellant.

Angela Sanneman, Los Angeles, California, for the plaintiff-

appellee.

6576 UNITED STATES v. CORONADO

OPINION

SCHROEDER:

Armando Joseph Coronado appeals the sixty-three month

sentence he received following the entry of his guilty plea to

being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). The sentence included a six level increase

to Coronado’s base offense level for a prior “crime of vio-

lence,” pursuant to U.S. Sentencing Guideline § 2K2.1(a)

(4)(A). The enhancement was imposed on account of Corona-

do’s prior California state court conviction under California

Penal Code section 246.3 for discharging a firearm in a

grossly negligent manner.

The district court ruled that the California conviction was

a crime of violence because the intentional discharge of a fire-

arm fell within U.S. Sentencing Guideline § 4B1.2(a)’s resid-

ual clause, which encompasses “any offense . . . that . . .

otherwise involves conduct that presents a serious potential

risk of physical injury to another.” The Supreme Court’s deci-

sion in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581

(2008), guides our interpretation of the Sentencing Guideline

at issue here because Begay considered an identical residual

clause in the Armed Career Criminal Act (“ACCA”). The

Court held the language contains an implied requirement of

“purposeful, violent, and aggressive conduct.” Id. at 144-45.

Negligent or reckless conduct does not qualify. The California

statute in question penalizes conduct that is only grossly neg-

ligent. We therefore join other circuits in concluding that a

conviction under a statute proscribing grossly negligent con-

duct, even though it involves an intentional and potentially

dangerous act, is not a “crime of violence” within the mean-

ing of U.S. Sentencing Guideline § 4B1.2(a). See, e.g., United

States v. Woods, 576 F.3d 400 (7th Cir. 2009) (en banc).

DISCUSSION

In the district court, Coronado pled guilty to a one-count

indictment for being a felon in possession of a firearm in vio-

UNITED STATES v. CORONADO 6577

lation of 18 U.S.C. § 922(g)(1). As part of his plea agreement,

Coronado admitted that he had previously been convicted in

California of discharging a firearm with gross negligence. At

sentencing, the parties disputed whether that conviction was

a crime of violence. The district court described the issue as

“close,” recognizing that it is one of first impression in this

circuit. The district court considered Begay, but reasoned it

did not control because it did not involve the same Sentencing

Guideline at issue here. The district court went on to hold that

even if Begay controlled, the California conviction differs

from the DUI offense involved in Begay because the Califor-

nia conviction was for the intentional discharge of a weapon,

and such conduct necessarily presents a likely cause of injury

or death.

We review de novo the classification of a defendant’s prior

conviction for purposes of applying the Sentencing Guide-

lines. United States v. Rodriguez-Rodriguez, 393 F.3d 849,

856 (9th Cir. 2005).

I.

[1] We first consider whether the residual clause of the

definition of a “crime of violence” in U.S. Sentencing Guide-

line § 4B1.2 is governed by Begay’s analysis. The district

court held it is not, because Begay was construing the lan-

guage of the ACCA. The Sentencing Guidelines at § 2K2.1

establish an enhancement for a prior conviction that is a

“crime of violence.” That provision incorporates by reference

the definition of “crime of violence” found at U.S. Sentencing

Guideline § 4B1.2(a). U.S.S.G. § 2K2.1, cmt. n.1. Under that

provision, a “crime of violence” is:

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that —

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

6578 UNITED STATES v. CORONADO

(2) is a 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) (emphasis added). This court has referred

to the first clause as the “element test,” the second clause as

the “enumerated offense approach,” and the third clause as the

“serious risk of injury test,” United States v. Gomez-Leon, 545

F.3d 777, 787-88 (9th Cir. 2008), or “residual clause,” United

States v. Snellenberger, 548 F.3d 699, 706 (9th Cir. 2008).

Only the residual clause, which broadens the definition of a

“crime of violence” to include any offense that “otherwise

involves conduct . . . ,” is at issue here.

[2] In Begay, the Supreme Court interpreted an identical

residual clause in the ACCA. The ACCA defines “violent fel-

ony” as follows:

any crime punishable by imprisonment for a term

exceeding one year, or any act of juvenile delin-

quency involving the use or carrying of a firearm,

knife, or destructive device that would be punishable

by imprisonment for such term if committed by an

adult, that —

(i) has as an element the use, attempted use,

or threatened use of physical force against

the person of another; or

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves

conduct that presents a serious potential

risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added).

[3] There are various statutory and Guideline definitions of

what constitutes a “crime of violence.” See, e.g., 18 U.S.C.

UNITED STATES v. CORONADO 6579

§§ 16, 924(c)(3); U.S.S.G. §§ 4B1.2, 2L1.2 cmt. n.1(B)(iii).

We have observed that these definitions are not always inter-

changeable. In Gomez-Leon we distinguished between a dif-

ferent Guideline definition of “crime of violence,” pertaining

to illegal reentry, and some statutory definitions. 545 F.3d at

786-87. Our discussion in Gomez-Leon led the district court

to hold in this case that the Supreme Court’s analysis in

Begay, which interpreted the statutory residual clause in the

ACCA, did not apply to the residual clause in U.S. Sentencing

Guideline § 4B1.2 at issue here, even though the language is

identical. Our observation in Gomez-Leon was not meant to

suggest, however, that similar language can never mean the

same thing in a Guideline that it means in a statute. Indeed,

because the language of both the ACCA and the Guideline

adopt the same “serious risk of injury” test, the analysis in

Gomez-Leon suggests the definitions should be interpreted

similarly. See id. at 786-90. The Begay analysis controls ours.

In holding that Begay’s analysis applies in the context of

U.S. Sentencing Guideline § 4B1.2, we are in agreement with

every circuit that has had occasion to reach the issue. See

United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008);

United States v. Gray, 535 F.3d 128, 130-31 (2d Cir. 2008);

United States v. Roseboro, 551 F.3d 226, 229 n.2 (4th Cir.

2009) (abrogated on other grounds by United States v. Rivers,

595 F.3d 558, 560 (4th Cir. 2010)); United States v. Mohr,

554 F.3d 604, 609 n.4 (5th Cir. 2009); United States v. Baker,

559 F.3d 443, 453 (6th Cir. 2009); United States v. Spells, 537

F.3d 743, 754 (7th Cir. 2008); United States v. Williams, 537

F.3d 969, 971 (8th Cir. 2008); United States v. Williams, 559

F.3d 1143, 1147-48 n.7 (10th Cir. 2009); United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Although not

conceding the issue, the government does not seriously con-

test that our task is to apply the same analysis the Court

applied in Begay to determine whether the defendant’s prior

conviction is a “crime of violence” under U.S. Sentencing

Guideline § 4B1.2.

6580 UNITED STATES v. CORONADO

II.

We therefore next examine Begay and the standard it cre-

ated. The issue before the Supreme Court in Begay was

whether a New Mexico conviction for driving under the influ-

ence of alcohol fit within the residual clause of the ACCA.

553 U.S. at 139-40. Like the residual clause here, ACCA pro-

vides that a “violent felony” includes any crime punishable by

more than one year imprisonment that “otherwise involves

conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B).

[4] The Court assumed that driving under the influence

involved conduct that “presents a serious potential risk of

physical injury to another.” Begay, 553 U.S. at 141. The

Court focused, however, on the enumerated examples of con-

duct in the preceding clause that illustrated what the crime

must be like, and referenced the enumerated examples of

“burglary, arson, or extortion,” or an offense involving the

“use of explosives.” Id. at 142. The Court held that the crimes

encompassed by the residual clause must be similar to the

enumerated examples both “in kind as well as in degree of

risk posed.” Id. at 143. The court characterized the enumer-

ated examples as offenses involving “purposeful, violent, and

aggressive conduct.” Id. at 145.

The Court then concluded in Begay that the DUI crime did

not involve such conduct because the crime of driving under

the influence did not share the “purposeful, violent, and

aggressive” characteristics of the enumerated crimes. Id. at

144-48. Accordingly, the DUI was not a violent felony under

the ACCA, even though the Court recognized that the conduct

created a serious risk of causing injury or death. Id. at 148.

[5] The question here therefore becomes whether a person

convicted of negligent discharge of a firearm under California

Penal Code section 246.3 necessarily engaged in conduct that

was “purposeful, violent, and aggressive.” See Begay, 553

UNITED STATES v. CORONADO 6581

U.S. at 145; see also United States v. Christensen, 559 F.3d

1092, 1095 (9th Cir. 2009) (following Begay). All three

criteria must be satisfied for the California crime to be a cate-

gorical match with the federal definition. Christensen, 559

F.3d at 1095. We thus held in Christensen that statutory rape

was not a violent felony under the ACCA, emphasizing that

the crime was, like the DUI crime in Begay, one that “ ‘crimi-

naliz[ed] conduct in respect to which the offender need not

have any criminal intent at all.’ ” Id. (quoting Begay, 553 U.S.

at 145).

[6] Coronado correctly contends that his conviction under

section 246.3 cannot be a crime of violence because a convic-

tion under section 246.3 only requires gross negligence, and

crimes with a mens rea of gross negligence or recklessness do

not satisfy Begay’s requirement of “purposeful” conduct. This

is because “gross negligence” and recklessness do not require

criminal intent. See People v. Ramirez, 201 P.3d 466, 471

(Cal. 2009).

[7] The government responds that section 246.3 does

require “purposeful” conduct because the statute requires the

intentional act of discharging a firearm. We agree with Coro-

nado, however, because the conduct, albeit intentional, is not

intended to harm anyone. In that key respect, it is not like the

enumerated crimes of burglary of a dwelling, arson, extortion

or those involving use of explosives.

This is borne out by the California cases interpreting the

underlying criminal statute, California Penal Code section

246.3. The statute creates a felony offense when “any person

. . . willfully discharges a firearm in a grossly negligent man-

ner which could result in injury or death to a person.” Cal.

Penal Code § 246.3. California courts have defined the ele-

ments of a section 246.3 offense to include: “(1) the defendant

unlawfully discharged a firearm; (2) the defendant did so

intentionally; and (3) the defendant did so in a grossly negli-

gent manner which could result in the injury or death of a per-

6582 UNITED STATES v. CORONADO

son.” People v. Overman, 24 Cal. Rptr. 3d 798, 809 (Cal. Ct.

App. 2005) (internal quotation marks omitted). Overman

characterizes section 246.3 as a “general intent crime”

because “its mental state consists of an intent to do the act that

causes the harm.” Id. The California Court of Appeal went on

to say that the statute unequivocally “does not require a spe-

cific intent to do a further act or achieve a future consequence

beyond the act of discharging a firearm in a grossly negligent

manner.” Id. (internal quotation marks omitted). In other

words, it does not require any intent to cause harm.

While we have not previously had occasion to consider

whether a predicate offense with a mens rea of gross negli-

gence can satisfy Begay’s requirement of “purposeful” con-

duct, we have considered the meaning of “purposeful” in

other contexts. In Fernandez-Ruiz v. Gonzales, we decided

that a misdemeanor conviction for a domestic assault did not

constitute a “crime of domestic violence” within the meaning

of our federal immigration law, because the Supreme Court,

in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004), inter-

preted a “crime of domestic violence” under the immigration

law to cover only those crimes involving “volitional” and not

“accidental” acts. 466 F.3d 1121, 1123 (9th Cir. 2006) (en

banc). The statute at issue in Fernandez-Ruiz required only

recklessness, not purposeful conduct. Id. at 1129-30. We

explained with reference to the dictionary definition, “ ‘Pur-

poseful’ means ‘[d]one with a specific purpose in mind;

DELIBERATE.’ . . . . Reckless conduct, as generally defined,

is not purposeful.” Id. at 1130 (quoting Black’s Law Dictio-

nary 16 (8th ed. 2004)). Consistent with our analysis in

Fernandez-Ruiz, “grossly negligent” conduct as required

under section 246.3 cannot satisfy Begay’s “purposeful” con-

duct standard.

It is true, as the district court recognized, that discharge of

a firearm in a grossly negligent manner as proscribed by sec-

tion 246.3, especially in a populated area, may very well

create a high likelihood of substantial harm to others. The

UNITED STATES v. CORONADO 6583

California statute, however, while clearly requiring an inten-

tional act, does not require that the act be done with intent to

harm, or even that the act be directed toward any other per-

son. The act therefore need not be “purposeful, violent, and

aggressive” as required by Begay.

In so holding, we agree with the other circuits that have

considered similar questions. See United States v. Herrick,

545 F.3d 53, 59 (1st Cir. 2008) (residual clause does not

encompass vehicular manslaughter with mens rea of criminal

negligence because not purposeful or aggressive); United

States v. Gray, 535 F.3d 128, 131-32 (2d Cir. 2008) (residual

clause does not encompass reckless endangerment in first

degree because not purposeful); United States v. Baker, 559

F.3d 443, 452-53 (6th Cir. 2009) (residual clause does not

encompass reckless endangerment involving a deadly weapon

because not purposeful, violent and aggressive); United States

v. Woods, 576 F.3d 400, 410-13 (7th Cir. 2009) (en banc)

(residual clause does not encompass involuntary manslaugh-

ter, which requires recklessness, because not purposeful);

United States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008)

(residual clause does not encompass carrying a concealed fire-

arm, where statute does not require specific intent, because

not necessarily purposeful, violent, or aggressive).

The case addressing an argument closest to the govern-

ment’s argument in this case is the Seventh Circuit’s decision

in Woods. At issue in Woods was whether a prior conviction

for involuntary manslaughter, which required only a finding

of reckless conduct, qualified as a prior “crime of violence”

under the residual clause of U.S. Sentencing Guideline

§ 4B1.1. 576 F.3d at 401. The government argued in Woods

that because the defendant had intended to drink and drive

when he caused a DUI death, the death was “purposeful.” Id.

at 410. The majority of the Seventh Circuit rejected the gov-

ernment’s proposed distinction between the act and the conse-

quence as contradictory to Begay:

6584 UNITED STATES v. CORONADO

In our view, this is precisely the distinction that the

Begay Court rejected. In Begay itself, the defendant

intended both the act of drinking alcoholic beverages

and the act of driving his car; he was reckless only

with respect to the consequences of those acts. . . .

The Government’s argument not only blurs that line;

it obliterates it.

Id. In Woods, the reckless conduct had resulted in a death,

which the dissenting opinion stressed. See id. at 414 (Easter-

brook, C.J., dissenting) (“How can homicide not be an inten-

tional, violent, and aggressive act?”). In this case, the

consequence of the act of discharging the firearm was only

the creation of a risk and not an actual injury to another per-

son, so the concerns of the dissent in Woods are not impli-

cated. Moreover, as the Seventh Circuit noted, “[e]very crime

of recklessness necessarily requires a purposeful, volitional

act that sets in motion the later outcome.” Id. at 411 (majority

opinion). Thus, it held, “crimes with the mens rea of reckless-

ness do not fall within [the] scope” of the residual clause as

interpreted by Begay. Id. at 413.

[8] We therefore hold that California Penal Code section

246.3, discharging a firearm in a grossly negligent manner, is

not a “crime of violence” under U.S. Sentencing Guideline

§ 4B1.2(a), because it proscribes only acts of gross negligence

that are not “purposeful, violent, and aggressive” as required

by the Supreme Court’s analysis in Begay.

III.

[9] The government finally argues that even if Coronado’s

prior conviction under section 246.3 does not constitute a

“crime of violence,” we should affirm Coronado’s sentence as

harmless error. The government argues the error was harmless

because the district court stated at sentencing that the rest of

Coronado’s criminal record of prior convictions was serious

enough to warrant an upward departure even if the prior con-

UNITED STATES v. CORONADO 6585

viction under section 246.3 were not a crime of violence war-

ranting an enhancement. The district court imposed the

enhancement, however, before this court had an opportunity

to consider the applicability of Begay to U.S.S.G. § 4B1.2 and

hence without a full understanding of what our law now

requires to be the elements of a “crime of violence.” We

therefore must vacate the sentence and remand for resentenc-

ing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2003) (miscalculation of Guideline range is procedural error

requiring reversal).

Sentence VACATED and REMANDED.