United States v. Jorge Cisneros

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30066

Plaintiff-Appellee,

D.C. No.

v. 1:11-cr-30051-PA-1

JORGE ARMANDO CISNEROS,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Submitted May 13, 2014*

Portland, Oregon

Filed August 19, 2014

Before: Alfred T. Goodwin, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 UNITED STATES V. CISNEROS

SUMMARY**

Criminal Law

The panel affirmed the district court’s imposition of a

mandatory minimum sentence of 180 months’ imprisonment

pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(1) (ACCA).

The district court determined that six of the defendant’s

past convictions – three convictions for fleeing or attempting

to elude a police officer in violation of Oregon Revised

Statutes § 811.540(1), two convictions for first-degree

burglary in violation of Oregon Revised Statutes § 164.225,

and one conviction for conspiracy to commit delivery of a

controlled substance in violation of Oregon Revised Statutes

§§ 161.450 and 475.752 – qualify as predicate offenses under

ACCA.

The defendant conceded that his drug offense qualifies as

an ACCA predicate offense.

The panel held that Descamps v. United States, 133 S. Ct.

2276 (2013), did not undermine United States v. Snyder, 643

F.3d 694 (9th Cir. 2011), which held that an Oregon

conviction for fleeing or attempting to elude a police officer

qualifies as a violent felony under ACCA’s residual clause.

Answering a question this court had no reason to ask in

Snyder, the panel held that because § 811.540(1) contains

alternative elements for fleeing from a police officer in a

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CISNEROS 3

vehicle and fleeing on foot, the statute is divisible, and the

panel could review the charging documents to confirm that

the defendant was convicted for vehicular flight,

which constitutes a “violent felony” under ACCA’s residual

clause. Observing that each indictment establishes that the

defendant was convicted of vehicular flight pursuant to

§ 811.540(1)(b)(A), the panel concluded that all three of the

defendant’s convictions for fleeing or attempting to elude

police officers qualify as violent felonies under ACCA’s

residual clause.

The panel rejected the defendant’s contention that

ACCA’s residual clause is unconstitutionally vague.

The panel likewise held that Descamps did not undermine

United States v. Mayer, 560 F.3d 948 (9th Cir. 2009), which

held that a conviction for first-degree burglary in violation of

§ 164.225 qualifies as a violent felony under ACCA’s

residual clause. The panel concluded that Mayer therefore

applies to the defendant’s first-degree burglary convictions,

which means those convictions qualify as predicate offenses

under ACCA.

COUNSEL

Brian C. Butler (argued), Assistant Federal Public Defender,

Federal Public Defender’s Office, Medford, Oregon, for

Defendant-Appellant.

Douglas W. Fong (argued), Assistant United States Attorney;

Kelly A. Zusman, Appellate Chief; and S. Amanda Marshall,

United States Attorney, Office of the United States Attorney,

Medford, Oregon, for Plaintiff-Appellee.

4 UNITED STATES V. CISNEROS

OPINION

N.R. SMITH, Circuit Judge:

Jorge Armando Cisneros appeals the district court’s

decision that six of his past convictions—three convictions

for fleeing or attempting to elude a police officer, two

convictions for first-degree burglary, and one conviction for

conspiracy to commit delivery of a controlled

substance—qualify as predicate offenses under the Armed

Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e).

Cisneros concedes that his drug offense qualifies as an ACCA

predicate offense under United States v. Parry, 479 F.3d 722,

724–25 (9th Cir. 2007).1 Therefore, only two more of his

convictions must qualify as ACCA predicate offenses for

Cisneros to receive ACCA’s mandatory minimum sentence

of 180 months’ imprisonment. See 18 U.S.C. § 924(e)(1).

Cisneros’s three convictions for fleeing or attempting to

elude police officers under Oregon Revised Statutes section

811.540(1) constitute “violent felon[ies]” under ACCA’s

residual clause. Because section 811.540(1) contains

alternative elements for fleeing from a police officer in a

vehicle and fleeing on foot, the statute is divisible. See

Descamps v. United States, 133 S. Ct. 2276, 2284 (2013).

We may therefore review the charging documents to confirm

that Cisneros was convicted for vehicular flight, see id. at

2284, which constitutes a “violent felony” under ACCA’s

residual clause, see United States v. Snyder, 643 F.3d 694,

699-700 (9th Cir. 2011). Given Cisneros’s three convictions

1

We reject Cisneros’s argument that Parry was wrongly decided, as a

“three-judge panel may not overrule a prior decision of the court.” Miller

v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

UNITED STATES V. CISNEROS 5

under section 811.540(1) and his drug offense, the district

court properly sentenced Cisneros to 180 months’

imprisonment under ACCA. See 18 U.S.C. § 924(e)(1).

Nevertheless, because the district court also decided that

Cisneros’s convictions for first-degree burglary qualified as

predicate offenses, we address those convictions as well. We

have already held that a conviction for first-degree burglary

under Oregon Revised Statutes section 164.225 qualifies as

a “violent felony” under ACCA’s residual clause. United

States v. Mayer, 560 F.3d 948, 954 (9th Cir. 2009). Because

the Supreme Court “express[ed] no view” on Mayer when it

decided Descamps, 133 S. Ct. at 2293 n.6, Mayer remains the

law of the Ninth Circuit. Thus, Cisneros’s past convictions

under Oregon Revised Statutes sections 811.540(1)(A) and

164.225 qualify as predicate offenses under ACCA.

Accordingly, we affirm the district court.

FACTS

On November 26, 2012, Cisneros pleaded guilty to being

a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). The government sought to enhance Cisneros’s

sentence under ACCA. See 18 U.S.C. § 924(e). The

government based its proposed sentence enhancement on six

of Cisneros’s prior convictions: three convictions for fleeing

or attempting to elude a police officer, Or. Rev. Stat.

§ 811.540(1), two convictions for first-degree burglary, id.

§ 164.225, and one conviction for conspiracy to deliver a

controlled substance, see id. §§ 161.450, 475.752. The

district court held that all six of the prior convictions

qualified as ACCA predicate offenses and sentenced Cisneros

to the mandatory minimum of 180 months in prison.

6 UNITED STATES V. CISNEROS

STANDARD OF REVIEW

We review de novo whether Cisneros’s prior convictions

qualify as predicate offenses under ACCA. United States v.

Chandler, 743 F.3d 648, 650 (9th Cir. 2014).

DISCUSSION

ACCA prescribes a mandatory minimum sentence of

fifteen years imprisonment for any felon who unlawfully

possesses a firearm and who has three or more prior

convictions for a “violent felony.” See 18 U.S.C. § 924

(e)(1). Under ACCA’s “residual clause,” the definition of

“violent felony” includes any crime punishable by more than

one year’s imprisonment that “involves conduct that presents

a serious potential risk of physical injury to another.” See id.

§ 924(e)(2)(B)(ii).

We have previously held that convictions pursuant to

Oregon’s first-degree burglary statute and Oregon’s fleeing

or attempting to elude a police officer statute qualify as

violent felonies under ACCA’s residual clause. See Snyder,

643 F.3d at 699–700 (fleeing or attempting to elude a police

officer); Mayer, 560 F.3d at 954 (first-degree burglary).

After we decided Snyder and Mayer, the Supreme Court

clarified that, in deciding whether a conviction qualifies as a

violent felony under ACCA, courts may not review

documents relevant to the conviction “when the crime of

which the defendant was convicted has a single, indivisible

set of elements.” Descamps, 133 S. Ct. at 2282.

Cisneros argues that Descamps implicitly overruled

Snyder and Mayer. “Although a three judge panel normally

cannot overrule a decision of a prior panel on a controlling

UNITED STATES V. CISNEROS 7

question of law, we may overrule prior circuit authority

without taking the case en banc when an intervening Supreme

Court decision undermines an existing precedent of the Ninth

Circuit, and both cases are closely on point.” Galbraith v.

Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)

(internal quotation marks and citation omitted). However,

Descamps did not undermine Snyder or Mayer; both cases

remain the law of the Ninth Circuit.

1. Attempting to Elude a Police Officer.

In Oregon,

[a] person commits the crime of fleeing or

attempting to elude a police officer if:

(a) The person is operating a motor

vehicle; and

(b) A police officer . . . gives a visual or

audible signal to bring the vehicle to a

stop, . . . and either:

(A) The person, while still in the

vehicle, knowingly flees or attempts to

elude a pursuing police officer; or

(B) The person gets out of the vehicle

and knowingly flees or attempts to

elude the police officer.

Or. Rev. Stat. § 811.540(1). Snyder held that violating this

statute’s prohibition on vehicular flight constitutes a violent

felony under ACCA’s residual clause. See 643 F.3d at 699.

8 UNITED STATES V. CISNEROS

Snyder relied on United States v. Sykes, 131 S. Ct. 2267

(2011), in which the Supreme Court held that an Indiana

statute prohibiting vehicular flight qualified as a violent

felony, “because, as a categorical matter, the prohibition falls

within [ACCA’s] residual clause in that vehicle flight

presents a serious potential risk of physical injury to another.”

643 F.3d at 699 (citing Sykes, 131 S. Ct. at 2275–76).

Comparing the portion of the Oregon statute that prohibits

vehicular flight to the Indiana statute, Snyder held that the

“statute at issue in Sykes is similar enough to the statute at

issue here that the Supreme Court’s Sykes ruling controls this

case.” Id.

Our analysis in Synder could prove problematic, because

we zeroed in on vehicular flight after reviewing the

indictment in Snyder’s case, see id., a practice Descamps

allows only when the statute is divisible, 133 S. Ct. at

2281–82. Of course, Snyder predates Descamps, which

means we had no reason to embark on a divisibility inquiry

at the time we decided Snyder. Thus, we must now answer

the question we had no reason to ask in Snyder (whether

section 811.540(1) is divisible).

If section 811.540(1) is divisible, Snyder’s review of the

indictment would be permissible—even post-Descamps.

Consequently, Snyder would remain good law, and a

violation of section 811.540(1) by vehicular flight would

qualify as a violent felony. However, if section 811.540(1)

is indivisible, Snyder’s review of the indictment would be

prohibited by Descamps. Under these circumstances, we

would be required to consider the statute anew, as a whole,

rather than relying on Snyder’s analysis, which focused on

vehicular flight.

UNITED STATES V. CISNEROS 9

We have little problem concluding that Oregon’s fleeing

or attempting to elude a police officer statute is divisible. By

separating flight in a vehicle and flight on foot, the statute

“lists multiple, alternative elements, and so effectively creates

‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285

(quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). In

fact, the statute separates itself into two different crimes,

dictating flight in a vehicle constitutes a felony while flight

on foot constitutes a misdemeanor. Or. Rev. Stat.

§ 811.540(3).

Oregon’s jury instructions support the conclusion that the

statute is divisible: section 811.540(1)(b)(A) uses an entirely

different instruction than section 811.540(1)(b)(B). See

UCrJI 2720 (“Fleeing or Attempting to Elude a Police Officer

(While Still in the Vehicle)”); UCrJI 2721 (“Fleeing or

Attempting to Elude a Police Officer (Out of the Vehicle)”).

According to the jury instructions, both crimes require that

the state prove five elements. Four of the elements are the

exact same, but the fifth element is different for each crime.

Compare UCrJI 2720 (“[Defendant’s name], while still in the

vehicle, knowingly fled or attempted to elude a pursuing

police officer.”) with UCrJI 2721 (“[Defendant’s name] got

out of the vehicle and knowingly fled or attempted to elude

the police officer.”). These alternative elements make the

statute divisible. See Descamps, 133 S. Ct. at 2285.

Cisneros insists that Snyder’s failure to address

divisibility, as required by Descamps, means that Snyder no

longer carries any precedential value. However, Descamps’s

imposition of a divisibility requirement does not give us carte

blanche to run roughshod over all of Snyder’s legal

conclusions. Intervening Supreme Court authority only

overrules past circuit precedent to the extent that the Supreme

10 UNITED STATES V. CISNEROS

Court decision “undercut the theory or reasoning underlying

the prior circuit precedent in such a way that the cases are

clearly irreconcilable.” See Miller, 335 F.3d at 900. The

divisibility of section 811.540(1) means Snyder can be

reconciled with Descamps. We are therefore duty-bound to

follow Snyder.

In sum, Oregon Revised Statutes section 811.540(1),

which prohibits flight or eluding a police officer, is divisible

as to flight on foot and flight in a vehicle. See Descamps,

133 S. Ct. at 2285. Pursuant to Descamps, a court reviewing

a conviction under section 811.540(1) may consult

permissible documents to determine which alternative

element played a part in the defendant’s conviction. See id. at

2283; see also Shepard v. United States, 544 U.S. 13, 16

(2005) (holding that under the modified categorical approach,

a court “is generally limited to examining the statutory

definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented”). Where

these documents show that the defendant was convicted of

vehicular flight under section 811.540(1)(b)(A), the

conviction constitutes a “violent felony” under the residual

clause of ACCA. See Snyder, 643 F.3d at 699.

In the case at hand, all three of Cisneros’s indictments for

fleeing or attempting to elude a police officer use identical

language, except for the date of the offense and the premises

on which the offense was committed:

The defendant, on or about [date], in Jackson

County, Oregon, being an operator of a motor

vehicle upon [a public highway/premises open

to the public], and having been given a visible

UNITED STATES V. CISNEROS 11

and audible signal to stop by a police officer,

who was operating a vehicle appropriately

marked showing it to be an official police

vehicle, did unlawfully and knowingly, while

still in the vehicle, attempt to elude the police

officer.

Each indictment establishes that Cisneros was convicted of

vehicular flight pursuant to Oregon Revised Statutes section

811.540(1)(b)(A). Therefore, all three of Cisneros’s

convictions for fleeing or attempting to elude police officers

qualify as violent felonies under ACCA’s residual clause.2

2. First-degree burglary in Oregon.

In Oregon, a person commits the crime of first-degree

burglary “if the person enters or remains unlawfully in a

building with intent to commit a crime therein,” Or. Rev.

Stat. § 164.215, and “the building is a dwelling,” id.

§ 164.225. Cisneros argues that Oregon’s first-degree

burglary statute does not qualify as a violent felony under

ACCA’s residual clause. We reached the opposite conclusion

in Mayer. 560 F.3d at 954. We reasoned that the appropriate

inquiry was whether, “‘in the ordinary case,’ conduct falling

within the state statute presents” a serious potential risk of

physical injury. Id. at 960 (quoting James, 550 U.S. at 208).

In making that inquiry, we concluded that the statute fell

within ACCA’s residual clause, because it “categorically

poses a serious potential risk of physical injury to people

present in a dwelling at the time of a burglary, and to people

2

We reject Cisneros’s claim that ACCA’s residual clause is

unconstitutionally vague. See James v. United States, 550 U.S. 192, 210

n.6 (2007).

12 UNITED STATES V. CISNEROS

in the immediate area of a building if a confrontation does

occur.” Id. at 963.

Cisneros again asserts that Descamps constitutes

intervening, superseding Supreme Court authority. He argues

that Mayer impermissibly “engaged in the kind of fact-based

inquiry rejected by the Supreme Court in Descamps.”

However, Cisneros points to nothing in Mayer’s analysis to

show that the Mayer court looked at the facts underlying

Mayer’s conviction.

Instead, Cisneros disagrees with how Mayer applied

ACCA’s residual clause to Oregon’s first-degree burglary

statute. Specifically, he argues that the “proper inquiry is not

how the statute is interpreted most of the time, but whether it

has been interpreted to include conduct that does not involve

dangerous conduct.” In effect, Cisneros takes issue with

Mayer’s use of an inquiry focused on the “ordinary case.”

However, Mayer’s decision to use the ordinary-case

analysis has nothing to do with the kind of fact-based inquiry

rejected by the Supreme Court in Descamps. Descamps did

not address how the categorical approach should be applied

in the context of ACCA’s residual clause, because the

government forfeited its residual clause argument. 133 S. Ct.

at 2293 n.6. More to the point, Descamps went out of its way

to make clear that it “express[ed] no view” on Mayer’s

holding. 133 S. Ct. at 2293 n.6. This explicit disclaimer

means Descamps could not have disturbed Mayer’s

conclusion that a “prior conviction for first-degree burglary

in Oregon [is] a predicate ‘violent felony’ under the residual

clause of the [ACCA].” See 560 F.3d at 954. Mayer

therefore applies to Cisneros’s first-degree burglary

UNITED STATES V. CISNEROS 13

convictions, which means those convictions qualify as violent

offenses for purposes of ACCA.3

CONCLUSION

Cisneros’s convictions in Oregon for fleeing or

attempting to elude police officers and first-degree burglary

qualify as predicate offenses under ACCA’s residual clause.

Therefore, the district court did not err in sentencing Cisneros

to the minimum 180 months’ imprisonment prescribed by

ACCA.

AFFIRMED.

3

Because Oregon’s first-degree burglary statute qualifies as a violent

felony under ACCA’s residual clause, we need not decide whether it also

qualifies as a violent felony under ACCA’s burglary clause.