United States v. Lawrence

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30285

Plaintiff-Appellee, D.C. No.

v.  2:08-cr-00177-

ANTHONY L. LAWRENCE, WFN-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted

August 5, 2010—Seattle, Washington

Filed December 10, 2010

Before: William C. Canby, Jr., David R. Thompson and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Canby

19935

UNITED STATES v. LAWRENCE 19939

COUNSEL

Aine Ahmed, Russell E. Smoot, Assistants United States

Attorneys, Spokane, Washington, for the plaintiff-appellee.

Byron G. Powell, Spokane, Washington, for the defendant-

appellant.

OPINION

CANBY, Senior Circuit Judge:

Anthony L. Lawrence was convicted by a jury of being a

felon in possession of a firearm and ammunition in violation

of 18 U.S.C. § 922(g)(1), following his involvement in a

shooting in early 2008. At sentencing, the district court deter-

mined that the Armed Career Criminal Act’s (“ACCA”)

fifteen-year mandatory minimum sentence applied in Law-

rence’s case. Lawrence now appeals his sentence, arguing that

the government failed to prove that he had three previous

qualifying convictions that would trigger the ACCA’s manda-

tory minimum.1 We have jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291, and we affirm.

1

Lawrence also appeals his conviction, contending that his inability to

view directly the witnesses who testified against him at trial, because of

his poor eyesight, denied him his Sixth Amendment confrontation right.

We reject this argument. We assume that the confrontation right requires

accommodation of visual impairments. See United States v. McMillan, 600

F.3d 434, 454 (5th Cir. 2010) (“When faced with a defendant who is

affected by blindness, the court should afford such a defendant reasonable

facilities for confronting and cross-examining the witnesses as the circum-

stances will permit.” (internal quotation omitted)). By employing a large

television screen to enable Lawrence to see the witnesses more clearly, the

district court adequately accommodated Lawrence’s impaired vision “in

the context of the necessities of trial and the adversary process,” Maryland

v. Craig, 497 U.S. 836, 850 (1990), “thereby preserv[ing] the essence of

effective confrontation,” id. at 857.

19940 UNITED STATES v. LAWRENCE

The ACCA provides that a person who is convicted of

being a felon in possession of a firearm is subject to a fifteen-

year mandatory minimum sentence if that person “has three

previous convictions . . . for a violent felony or a serious drug

offense, or both.” 18 U.S.C. § 924(e)(1). The district court

found that Lawrence previously had been convicted of not

just three, but five, qualifying offenses, including two serious

drug offenses and three violent felonies. Because Lawrence

now concedes that the two drug convictions qualify as ACCA

predicate offenses, we may affirm Lawrence’s sentence if we

conclude that he was convicted of at least one violent felony.

[1] We review de novo whether a state conviction qualifies

as a violent felony under the ACCA. United States v. Ankeny,

502 F.3d 829, 839 (9th Cir. 2007). The ACCA defines “vio-

lent felony” to include, inter alia, “any crime punishable by

imprisonment for a term exceeding one year . . . that . . . has

as an element the use, attempted use, or threatened use of

physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i).2 We are guided by the precedent of both the

Supreme Court and our court in applying this definition. In

particular, we bear in mind that “the phrase ‘physical force’

means violent force—that is, force capable of causing physi-

cal pain or injury to another person.” Johnson, 130 S. Ct. at

1271. In other words, the term “violent felony” “[‘]suggests

a category of violent, active crimes.’ ” Id. (quoting Leocal v.

Ashcroft, 543 U.S. 1, 11 (2004)). We also are cognizant that,

to qualify as defining a violent felony, a state statute must

require that the physical force be inflicted intentionally, as

2

The ACCA also defines “violent felony” to include certain enumerated

offenses or an offense that “otherwise involves conduct that presents a

serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii). The enumerated offenses are not at issue here, and the

government has disclaimed any reliance on the ACCA’s “so-called ‘resid-

ual clause.’ ” Johnson v. United States, 130 S. Ct. 1265, 1274 (2010).

UNITED STATES v. LAWRENCE 19941

opposed to recklessly or negligently. See Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).3

To determine whether a statute “has as an element the use,

attempted use, or threatened use of physical force against the

person of another,” 18 U.S.C. § 924(e)(2)(B)(i), we first apply

the “categorical approach” set forth in Taylor v. United States,

495 U.S. 575, 600-02 (1990). See United States v. Grajeda-

Ramirez, 348 F.3d 1123, 1125 (9th Cir. 2003), overruled on

other grounds by Fernandez-Ruiz, 466 F.3d at 1132. Under

the categorical approach, we consider only “the fact of con-

viction and the statutory definition of the prior offense,” Tay-

lor, 495 U.S. at 602, not “the particular facts underlying [the]

conviction[ ],” id. at 600. “If the statute of conviction prohib-

its only conduct that includes the requisite use, threatened use

or attempted use of force, we need not look beyond the fact

of conviction to conclude that the prior offense was a crime

of violence.” Grajeda-Ramirez, 348 F.3d at 1125.

For reasons stated below, we hold that Lawrence’s convic-

tion for second-degree assault, in violation of Washington

Revised Code section 9A.36.021(1)(a) (“Section

9A.36.021(1)(a)”), categorically qualifies as a violent felony

under the ACCA. Thus, we need not decide whether Law-

3

Fernandez-Ruiz considered the mens rea required for a state statute to

qualify as a “crime of violence” under 18 U.S.C. § 16(a). Fernandez-Ruiz,

466 F.3d at 1125. Section 16(a) contains an element test that is materially

identical to the test at issue in this case. See 18 U.S.C. § 16(a) (defining

“crime of violence” as “an offense that has as an element the use,

attempted use, or threatened use of physical force against the person or

property of another”). We previously extended Fernandez-Ruiz to apply

to the definition of “crime of violence” in United States Sentencing Guide-

line (“U.S.S.G.”) § 2L1.2, because the “relevant definitions . . . are identi-

cal.” United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007);

see also U.S.S.G. § 2L1.2 n.1(B)(iii) (defining “crime of violence” to

include “any . . . offense . . . that has as an element the use, attempted use,

or threatened use of physical force against the person of another”). For the

same reason, we hold that Fernandez-Ruiz’s requirement of intentional use

of physical force applies to the ACCA’s violent felony predicate.

19942 UNITED STATES v. LAWRENCE

rence’s previous Washington convictions for either third-

degree assault, Wash. Rev. Code § 9A.36.031(1)(f), or felony

riot, Wash. Rev. Code § 9A.84.010(1), (2)(b), qualify as

ACCA predicate offenses.

[2] Section 9A.36.021(1)(a) provides that “[a] person is

guilty of assault in the second degree if he or she, under cir-

cumstances not amounting to assault in the first degree[,] . . .

[i]ntentionally assaults another and thereby recklessly inflicts

substantial bodily harm.” Wash. Rev. Code § 9A.36.021(1)(a).4

Washington courts interpret Section 9A.36.021(1)(a) to have

two elements: an act (an intentional assault) and a result

(reckless infliction of substantial bodily harm). See, e.g., State

v. Keend, 166 P.3d 1268, 1272-73 (Wash. Ct. App. 2007).

Each element requires a different mens rea, and “under [Sec-

tion] 9A.36.021(1)(a), a defendant could intend to assault

another without thereby intending to inflict substantial bodily

harm.” Id. at 1273.

[3] This is not the first time that we have considered

whether Section 9A.36.021(1)(a) requires the use of physical

force against the person of another. In United States v.

Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005), we

held that Section 9A.36.021(1)(a) defined a categorical crime

of violence within the meaning of U.S.S.G. § 2L1.2. We con-

sidered it sufficient that the statute requires the reckless inflic-

tion of substantial bodily injury, an element of statutes that we

had held were categorical crimes of violence in United States

v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir. 2000),

and United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125

(9th Cir. 2003). See Hermoso-Garcia, 413 F.3d at 1089.

4

Violation of Section 9A.36.012(1)(a) is a Class B felony punishable by

up to ten years in prison. Wash. Rev. Code §§ 9A.20.021(1)(b),

9A.36.021(2)(a). The statute thus satisfies the ACCA’s requirement that

the offense, to qualify as a violent felony, be “punishable by imprisonment

for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B)(i).

UNITED STATES v. LAWRENCE 19943

[4] In Leocal v. Ashcroft, 543 U.S. 1 (2004), however, the

Supreme Court held that the phrase “use of physical force”

requires “a higher degree of intent than negligent or merely

accidental conduct.” Id. at 9. Thus, driving under the influ-

ence of alcohol and causing an accidental injury did not qual-

ify as a crime of violence. Id. at 9-10. In Fernandez-Ruiz, we

interpreted Leocal also to require more than recklessness,

holding that a crime of violence “must involve the intentional

use of force against the person or property of another.”

Fernandez-Ruiz, 466 F.3d at 1132. Fernandez-Ruiz expressly

overruled cases such as Ceron-Sanchez that had held that

crimes of violence could include offenses requiring only the

reckless use of force against someone. Fernandez-Ruiz, 466

F.3d at 1126-27, 1132. By extension, Fernandez-Ruiz has

undermined the underlying reasoning of Hermoso-Garcia’s

holding that Section 9A.36.021(1)(a) requires the use of phys-

ical force against someone solely because of its element of

reckless infliction of injury.

[5] Nonetheless, Section 9A.36.021(1)(a) differs in an

important respect from the statutes at issue in Ceron-Sanchez,

Grajeda-Ramirez, and Fernandez-Ruiz. While those statutes

all required reckless infliction of injury without any inten-

tional criminal assault,5 Section 9A.36.021(1)(a) requires an

intentional assault that thereby inflicts substantial bodily

harm. Therefore, we must address a question that we had no

reason to reach in Hermoso-Garcia: whether Section

9A.36.021(1)(a) is a categorical violent felony because it

requires not just reckless infliction of substantial bodily harm,

but also an intentional assault that causes such harm. We con-

clude that this requirement of intentional criminal assault,

5

Grajeda-Ramirez, 348 F.3d at 1124-25, considered a Colorado vehicu-

lar assault statute criminalizing reckless driving that proximately causes

serious bodily injury. Both Ceron-Sanchez, 222 F.3d at 1172, and

Fernandez-Ruiz, 466 F.3d at 1125, dealt with an Arizona assault statute

that may be violated by “recklessly causing any physical injury to another

person,” Ariz. Rev. Stat. § 13-1203(A)(1) (emphasis added).

19944 UNITED STATES v. LAWRENCE

coupled with a requirement of substantial bodily harm, ren-

ders Section 9A.36.021(1)(a) a violent felony.

[6] Because the Washington criminal code does not define

assault, the Washington courts look to the common law for a

definition. See, e.g., State v. Wilson, 883 P.2d 320, 323

(Wash. 1994) (en banc). Washington courts recognize three

means of accomplishing an assault: “(1) an attempt, with

unlawful force, to inflict bodily injury upon another

[attempted battery]; (2) an unlawful touching with criminal

intent [actual battery]; and (3) putting another in apprehension

of harm whether or not the actor intends to inflict or is capa-

ble of inflicting that harm [common law assault].” Id. (inter-

nal quotation marks omitted) (bracketed alterations in

Wilson).

[7] In applying the categorical approach, “we look ‘at the

least egregious end of the state statute’s range of conduct.’ ”

United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.

2010) (brackets and citation omitted); see also Johnson, 130

S. Ct. at 1269 (looking to “the least [of a state statute’s pro-

hibited] acts” to determine whether the defendant was con-

victed of a violent felony). Here, the “least egregious” of the

three assault modalities is the second (unlawful touching with

criminal intent), which can be accomplished by merely spit-

ting on another person. See State v. Humphries, 586 P.2d 130,

133 (Wash. Ct. App. 1978).6

6

We also note that the overwhelming majority of Washington cases con-

sidering Section 9A.36.021(1)(a) have involved the “unlawful touching”

variant of assault. See, e.g., Keend, 166 P.3d at 1271, 1273 (punch in the

face); State v. Esters, 927 P.2d 1140, 1141-42 (Wash. Ct. App. 1996)

(physical abuse of a child). The categorical approach is concerned with

“the ordinary case,” and requires a showing that there is a “realistic proba-

bility,” not a “theoretical possibility” that a defendant could be convicted

for conduct not meeting the federal standard of violence. United States v.

Carson, 486 F.3d 618, 619-20 (9th Cir. 2007) (internal quotation marks

omitted). Even if there were a realistic probability of prosecution under

Section 9A.36.021(1)(a) for an assault by either attempted battery or caus-

UNITED STATES v. LAWRENCE 19945

[8] An element of “unlawful touching” would not on its

own qualify Section 9A.36.021(1)(a) as a categorical violent

felony, because the offense would not in all cases punish con-

duct that is violent in nature. See Singh v. Ashcroft, 386 F.3d

1228, 1234 (9th Cir. 2004) (holding that an Oregon harass-

ment statute was not a categorical crime of violence because

it may be violated simply by “ ‘causing spittle to land on the

person’ of another”) (citation omitted); see also Suazo Perez

v. Mukasey, 512 F.3d 1222, 1226 (9th Cir. 2008) (holding that

Washington’s fourth-degree assault statute was not a categori-

cal crime of violence because it “can be committed by non-

consensual offensive touching”); United States v. Sandoval,

390 F.3d 1077, 1081 (9th Cir. 2004) (holding that Washing-

ton’s third-degree assault statute was not a categorical crime

of violence because “it is possible to commit third-degree

assault through an unlawful touching that does not involve

substantial physical force or seriously risk physical injury”).

Section 9A.36.021(1)(a), however, requires not just an inten-

tional assault, but an intentional assault that results in substan-

tial bodily harm. The Washington criminal code defines

“substantial bodily harm” as “bodily injury which involves a

temporary but substantial disfigurement, or which causes a

temporary but substantial loss or impairment of the function

of any bodily part or organ, or which causes a fracture of any

ing apprehension of harm, our cases indicate that those variants, at least

when those assaults thereby inflict or are likely to inflict substantial bodily

harm, satisfy the ACCA as predicate violent felonies. See, e.g., United

States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (concluding that

a California assault statute, “[b]y criminalizing ‘unlawful attempt[s] . . .

to commit a violent injury on the person of another’ with . . . force likely

to produce serious injury, . . . requires at least ‘attempted use . . . of physi-

cal force against the person of another’ ” (first and last omissions in Gra-

jeda) (citation omitted)); United States v. Juvenile Female, 566 F.3d 943,

947-48 (9th Cir. 2009) (holding that “a defendant charged [with] assault

resulting in bodily injury[ ] necessarily must have committed an act of

force in causing the injury,” where that assault could be accomplished

through attempted battery or “caus[ing] reasonable apprehension of imme-

diate bodily harm”).

19946 UNITED STATES v. LAWRENCE

bodily part.” Wash. Rev. Code § 9A.04.110(4)(b). We have

held that assault statutes penalizing intentional conduct that

results or is likely to result in such bodily injury necessarily

require force that “go[es] beyond the ‘least touching,’ and

represents ‘actual force’ that is violent in nature.” Grajeda,

581 F.3d at 1192; see also Juvenile Female, 566 F.3d at 948

(“[A] defendant charged [with] assault resulting in bodily

injury[ ] necessarily must have committed an act of force in

causing the injury.”).7

[9] It may be possible to dream up unusual scenarios in

which a non-violent act, such as spitting, could thereby result

in “substantial bodily injury.” The Supreme Court has made

it clear, however, that categorical analysis

requires more than the application of legal imagina-

tion to a state statute’s language. It requires a realis-

tic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls out-

side the generic definition of a crime. To show that

realistic possibility, an offender, of course, may

show that the statute was so applied in his own case.

But he must at least point to his own case or other

cases in which the state courts in fact did apply the

statute in the special (nongeneric) manner for which

he argues.

7

In Grajeda we interpreted a California statute requiring that assault be

committed “ ‘by any means of force likely to produce great bodily inju-

ry.’ ” 581 F.3d at 1192 (quoting Cal. Penal Code § 245(a)(1)) (emphasis

added). The requirement in the Washington statute at issue that the inflic-

tion of substantial bodily harm must have been “recklessly” inflicted

encompasses a similar concept, as recklessness requires a person to

“know[ ] of and disregard a substantial risk that a wrongful act may

occur.” Wash. Rev. Stat. § 9A.08.010(1)(c) (emphasis added). Thus, Sec-

tion 9A.36.021(1)(a) will necessarily require violent force because only

such force will involve a “substantial risk” of inflicting “substantial bodily

harm.”

UNITED STATES v. LAWRENCE 19947

Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007).

Lawrence does not claim that his own Section

9A.36.021(1)(a) conviction involved non-violent conduct.

Lawrence also has pointed to no Washington case applying

Section 9A.36.021(1)(a) to non-violent conduct, and we have

found no such case on our own.8 Lawrence accordingly fails

to meet the standard specified by Duenas-Alvarez. See also

Laurico-Yeno, 590 F.3d at 822 (holding that a California stat-

ute “penaliz[ing] the intentional use of force that results in a

traumatic condition” was a categorical crime of violence,

rejecting as hypothetical the defendant’s contention that a

“conviction could result from a non-violent use of force” that

nonetheless resulted in injury). We conclude, therefore, that

there is no realistic probability that a person could be con-

victed of violating Section 9A.36.021(1)(a) without having

committed a violent act.

[10] In addition, because Section 9A.36.021(1)(a) requires

an intentional assault, it is of no moment that it requires that

substantial bodily harm be inflicted only with recklessness. In

Grajeda, we held that a California assault statute was a cate-

gorical crime of violence even though the statute did not

require that the defendant intended to cause specific injury.

Grajeda, 581 F.3d at 1195. We explained that “[w]hile this

formulation of the necessary mens rea does not fit neatly with

the standard articulated in Fernandez-Ruiz, [the statute’s

requirement of intentional use of force] satisfies the concerns

animating Leocal and Fernandez-Ruiz that the proscribed

8

State v. Shepple, 145 Wash. App. 1046, 2008 WL 2792016 (Wash.

App. Div. 2008) (unpublished) is the closest case we could find to one in

which a defendant was prosecuted under Section 9A.36.021(1)(a) for

intentional conduct that was non-violent. The defendant in Shepple was

charged with second degree assault after pushing an individual who then

“fell backward and was hit by a passing vehicle . . . suffer[ing] serious

injuries.” Id. at *1. But the opinion gave no indication of how forceful the

“push” was, so it could have been quite violent. Moreover, in the end, the

defendant was convicted only of the lesser included offense of third

degree assault. Id. at *2. Thus, Shepple does not affect our conclusion.

19948 UNITED STATES v. LAWRENCE

conduct be ‘violent’ and ‘active,’ and the use of force not

merely accidental.” Id. at 1195. So, too, here. Section

9A.36.021(1)(a) does not punish accidental conduct, but

rather requires an intentional assault so violent as to inflict

substantial bodily harm. Grajeda makes clear that, so long as

the assault was intentional and substantial bodily injury was

likely, no intent to commit the resulting harm is required; it

follows a fortiori that a reckless infliction of substantial bod-

ily harm in the course of an intentional assault qualifies as a

crime of violence, as recklessness requires a substantial risk

of harm.

[11] We accordingly hold that a violation of Section

9A.36.021(1)(a) qualifies as a violent felony under the cate-

gorical approach because it “has as an element the use,

attempted use, or threatened use of physical force against the

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Lawrence’s

conviction and sentence are

AFFIRMED.