United States v. Rendon-Duarte

Corrected Reprint 6/21/2007

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30200

Plaintiff-Appellee, D.C. No.

v.

GREGORY ANTHONY RENDON-

 CR-05-00087-2-

a-RRB

DUARTE, AMENDED

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

December 5, 2006—Seattle, Washington

Filed June 20, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge Schwarzer

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

7363

7366 UNITED STATES v. RENDON-DUARTE

COUNSEL

Allison Mendel, Mendel & Associates, Anchorage, Alaska,

for the defendant-appellant.

Jo Ann Farrington, Assistant U.S. Attorney and Deborah M.

Smith, Acting U.S. Attorney, Anchorage, Alaska, for the

plaintiff-appellee.

UNITED STATES v. RENDON-DUARTE 7367

OPINION

SCHWARZER, District Judge:

Gregory Anthony Rendon-Duarte (Rendon-Duarte) was

sentenced to 70 months’ imprisonment and 36 months’ super-

vised release after a jury convicted him of one count of being

a felon in possession of two firearms, in violation of

18 U.S.C. §§ 922(g)(1) & 924(a)(2). On appeal, he challenges

the district court’s admission of evidence under Federal Rule

of Evidence 404(b) of two prior incidents of gun possession

to prove intent, knowledge and lack of mistake. He also chal-

lenges the district court’s finding that his prior Alaska state

court conviction of Assault in the Third Degree qualifies as a

“crime of violence” under the Sentencing Guidelines. We

affirm.

FACTUAL AND PROCEDURAL HISTORY

On September 1, 2005, Anchorage police officers observed

Rendon-Duarte purchase what they thought was a handgun

from Dwayne Dollison, Jr. (Dollison). The officers then

observed Rendon-Duarte return to the passenger seat of his

vehicle, lean over in the area of the passenger seat, and appear

to move something on the floor. A few minutes later police

stopped the vehicle, which was being driven by Jonel Ferger-

son, Rendon-Duarte’s girlfriend. Police arrested Rendon-

Duarte and, pursuant to a search warrant, recovered two

loaded handguns from under the vehicle’s floor carpet in front

of the front passenger seat. The vehicle was registered to

Rendon-Duarte’s father, who testified that he had bought it

for his son a few months earlier. Fergerson, at Rendon-

Duarte’s request, claimed ownership of the weapons, but at

trial she acknowledged that the weapons did not belong to her

and that she had not placed them in the vehicle.

Prior to trial, the district court denied Rendon-Duarte’s

motion in limine to bar evidence of two prior occasions on

7368 UNITED STATES v. RENDON-DUARTE

which weapons were found within vehicles driven or occu-

pied by Rendon-Duarte, finding these incidents relevant to

Rendon-Duarte’s knowledge, intent, or absence of mistake.

After a three-day trial, the jury found Rendon-Duarte guilty

of being a felon in possession of two firearms. The Presen-

tence Report (PSR) calculated an offense level of twenty, tak-

ing into account that the offense was committed subsequent

to sustaining a felony conviction of a “crime of violence,” i.e.,

a prior Alaska conviction of Assault in the Third Degree. See

U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (felon

in possession of a firearm). Rendon-Duarte did not object to

the PSR. In the absence of objection, the district court

accepted the facts stated in the PSR as established by a pre-

ponderance of the evidence. Concluding Rendon-Duarte fell

within the Guidelines’ range of 63-78 months’ imprisonment,

the court imposed a sentence of 70 months.

DISCUSSION

I.

[1] Federal Rule of Evidence 404(b) limits the admissibility

of evidence of prior acts to those which serve as proof of

“motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” We use a four-

part test to determine the admissibility of evidence under Rule

404(b). United States v. Arambula-Ruiz, 987 F.2d 599, 602

(9th Cir. 1993).

(1) it must prove a material element of the offense

for which the defendant is now charged; (2) in cer-

tain cases, the prior conduct must be similar to the

charged conduct; (3) proof of the prior conduct must

be based upon sufficient evidence; and (4) the prior

conduct must not be too remote in time.

Id. We need address only the first part of the test.

UNITED STATES v. RENDON-DUARTE 7369

The government offered “bad act” testimony from two

police officers. Sergeant Kass testified that in June 2003, in

connection with a traffic stop of a vehicle in which Rendon-

Duarte was riding, two weapons were found stashed in the

cover of the sunroof of the car. Lieutenant Gilliam testified

that in March 2001, when a car driven by Rendon-Duarte was

checked following an accident, a weapon and shell casings

were found on the floorboard of the driver’s seat below where

Rendon-Duarte had been sitting. The jury was instructed that

it could consider this evidence “only as it bears on defen-

dant’s intent, knowledge, absence of mistake or accident, and

for no other purpose.”

The district court held the evidence admissible, finding a

sufficient nexus between these incidents and the conduct with

which Rendon-Duarte was charged. It noted that the presence

of the guns in the vehicles within easy reach of Rendon-

Duarte was probative of absence of mistake as well as plan.

We review the district court’s evidentiary rulings for abuse of

discretion, considering whether the lower court based its deci-

sion on relevant factors and whether there was a clear error

of judgment. United States v. Alvarez, 358 F.3d 1194, 1205

(9th Cir. 2004).

[2] Rendon-Duarte argues that the prior-act testimony was

improperly admitted because “there is no ‘logical connection’

between the crime to be proved and the prior bad acts other

then [sic] propensity to possess guns, an impermissible pur-

pose.” We have held that “the government . . . bears the bur-

den of proving a logical connection between appellant’s

purported involvement in the previous [act] and a material

fact at issue in the crime with which he was charged.” United

States v. Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994). The

material fact at issue here was whether Rendon-Duarte had

knowledge of and intent to possess the weapons found in his

vehicle. The evidence of the prior acts established only that

weapons were found in the cars he drove or rode in. The gov-

7370 UNITED STATES v. RENDON-DUARTE

ernment’s reliance on United States v. Jernigan, 341 F.3d

1273 (11th Cir. 2003), is misplaced. There, the court stated:

[T]he caselaw in this and other circuits establishes

clearly the logical connection between a convicted

felon’s knowing possession of a firearm at one time

and his knowledge that a firearm is present at a sub-

sequent time (or, put differently, that his possession

at the subsequent time is not mistaken or accidental.)

341 F.3d at 1281 (emphasis added). Because there was no evi-

dence that Rendon-Duarte had knowing possession of the

weapons at issue here, the admission of the prior-act testi-

mony was an abuse of discretion.

[3] The error was harmless, however, in light of the over-

whelming evidence of Rendon-Duarte’s guilt. The officers’

testimony established that Rendon-Duarte purchased a firearm

from Dollison, placed the firearm in his waistband, returned

to his vehicle, and sat down in the front passenger seat. When

police stopped the car a few minutes later, they found two

firearms under the floorboards in front of the passenger-side

seat. Rendon-Duarte gave the officers a false name and birth

date, and he sought to persuade his girlfriend to falsely claim

that the guns were hers. In light of this uncontradicted evi-

dence, it is more probable than not that any error did not

materially affect the verdict. See United States v. Morales,

108 F.3d 1031, 1040 (9th Cir. 1997).

II.

Having been found guilty of violation of 18 U.S.C.

§ 922(g)(1), Rendon-Duarte was sentenced pursuant to sec-

tion 2K2.l of the Sentencing Guidelines. Under section

2K2.l(a)(4)(A), a base offense level of twenty applies if the

defendant committed the offense subsequent to a felony con-

viction for a crime of violence. U.S. Sentencing Guidelines

Manual § 2K2.l(a)(4)(A) (2005) [hereinafter USSG]. Applica-

UNITED STATES v. RENDON-DUARTE 7371

tion note one states that “crime of violence” has the meaning

given it in section 4B1.2(a). USSG § 2K2.1 cmt. n.1.

The district judge, without objection, adopted the PSR

which recommended an offense level of twenty based on a

finding that Rendon-Duarte’s prior Alaska conviction for

Assault in the Third Degree qualified as a “crime of vio-

lence.” The PSR described the conduct underlying the prior

conviction, but it did not cite the Alaska statute. Rendon-

Duarte contends that the district court erred because it applied

the “crime of violence” enhancement solely on the facts

underlying the conviction and because Assault in the Third

Degree under Alaska law in any event does not qualify as a

“crime of violence” under the Guidelines.

Because Rendon-Duarte did not challenge the PSR in the

district court, we review the court’s application of the Guide-

lines for plain error. Fed. R. Crim. P. 52(b); United States v.

Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). “There must be

an ‘error’ that is ‘plain’ and that ‘affect[s] substantial

rights.’ ” United States v. Olano, 507 U.S. 725, 732 (1993).

Rendon-Duarte bears the burden of demonstrating that the

error prejudiced his rights. Id. at 734. Further, “the court

should not exercise [its discretion to correct the error] unless

the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 732 (internal quota-

tion marks and citation omitted).

[4] The Guidelines define “crime of violence” as

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 threat-

ened use of physical force against the person of

another, or (2) is burglary of a dwelling, arson,

extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential

risk of physical injury to another.

7372 UNITED STATES v. RENDON-DUARTE

USSG § 4B1.2(a)(1) & (2). In determining whether the

Alaska statute qualifies, we use the categorical approach

announced in Taylor v. United States, 495 U.S. 575 (1990).

Under the categorical approach a court must “look only to the

fact of conviction and the statutory definition of the prior

offense” when determining whether the offense qualifies

under a definition in the Guidelines. Id. at 602.

[5] The Government failed to provide the statute of convic-

tion, and the court relied solely on the facts recited in the

PSR. This was error. See United States v. Pimentel-Flores,

339 F.3d 959, 967 (9th Cir. 2003) (“Under Taylor . . . the

actual statute of prior conviction must be supplied to the dis-

trict court by the government whether or not anyone objects

to its absence.”). In Pimentel-Flores, we held it was plain

error for the district court to rely solely on the factual descrip-

tion of the offense in the PSR. Id. at 968. The district court

committed the same error in this case, and under Pimentel-

Flores this error was plain. See id.

[6] While we conclude that the district court committed

plain error, we find that the error did not affect Rendon-

Duarte’s substantial rights. Rendon-Duarte admits that his

conviction was for violation of section 11.41.220(a)(1)(A) of

the Alaska Statutes, which provides:

(a) A person commits the crime of assault in the

third degree if that person (1) recklessly (A) places

another person in fear of imminent serious physical

injury by means of a dangerous instrument.

Dangerous instrument is defined as “any deadly weapon or

anything that, under the circumstances in which it is used,

attempted to be used, or threatened to be used, is capable of

causing death or serious physical injury.” Alaska Stat.

§ 11.81.900(b)(15)(A).

Rendon-Duarte contends that the Alaska statute does not

qualify under the categorical approach because it requires

UNITED STATES v. RENDON-DUARTE 7373

only that the defendant recklessly place the victim in fear of

imminent serious physical injury. Thus a violation of the state

statute does not satisfy the definition of crime of violence

under section 4B1.2(a)(1) because under that subsection a

crime of violence must have an element of the use of physical

force against another person. The state statute, he argues,

requires only recklessly placing a person in fear of injury, not

actual or threatened use of force.

[7] We disagree with Rendon-Duarte’s statutory analysis.

His argument overlooks the alternative definition in subsec-

tion (2) of section 4B1.2(a) which states that a crime of vio-

lence is “any offense . . . that . . . is burglary of a dwelling,

arson, extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of phys-

ical injury to another.” The language in the residual

(“otherwise”) clause, targeting conduct that presents a serious

potential risk of physical injury to another, is congruent with

Alaska’s prohibition of “plac[ing] another person in fear of

imminent serious physical injury by means of a dangerous

instrument.” Regardless of a defendant’s mental state, con-

duct involving a dangerous instrument “create[s] significant

risks of bodily injury or confrontation that might result in

bodily injury.” James v. United States, 127 S. Ct. 1586, 1592

(2007) (holding that attempted burglary under Florida law

qualified as a crime of violence under the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) [hereinafter

ACCA], because it “involves conduct that presents a serious

potential risk of physical injury to another”).

Rendon-Duarte directs our attention to this court’s recent

decision in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th

Cir. 2006) (en banc), holding that an Arizona conviction for

domestic violence did not constitute a crime of violence under

18 U.S.C. § 16(a). That statute defines a 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

7374 UNITED STATES v. RENDON-DUARTE

of another.” Applying the reasoning of Leocal v. Ashcroft,

543 U.S. 1 (2004), the court held that

Neither gross negligence . . . nor conscious disregard

of a substantial and unjustifiable risk of injury

implies that physical force is instrumental to carry-

ing out a crime, such as the plain meaning of the

word ‘use’ denotes. Therefore, neither recklessness

nor gross negligence is a sufficient mens rea to

establish that a conviction is for a crime of violence

under § 16.

Fernandez-Ruiz, 466 F.3d at 1130 (citation omitted). Because

the full range of conduct proscribed by the Arizona statute

encompassed reckless conduct, a conviction could not qualify

as a crime of violence under § 16.1 Id.

Fernandez-Ruiz does not help Rendon-Duarte because his

case does not involve § 16; it involves application of the Sen-

tencing Guidelines. The critical difference between the two

definitions of crime of violence is made clear in Leocal:

[Section] 16(b) plainly does not encompass all

offenses which create a “substantial risk” that injury

will result from a person’s conduct. The “substantial

risk” in § 16(b) relates to the use of force, not to the

possible effect of a person’s conduct. Compare

§ 16(b) (requiring a “substantial risk that physical

force against the person or property of another may

be used”), with United States Sentencing Commis-

sion, Guidelines Manual § 4B1.2(a)(2) (Nov. 2003).

1

18 U.S.C. § 16(a) defines “crime of violence” as “an offense that has

as an element the use . . . of physical force against the person or property

of another.” Section 16(b) defines it as “any other offense that is a felony

and that, by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of

committing the offense.”

UNITED STATES v. RENDON-DUARTE 7375

. . . The risk that an accident may occur when an

individual drives while intoxicated is simply not the

same thing as the risk that the individual may “use”

physical force against another in committing the

DUI offense.

Id. at 10 n.7.

[8] Because the use of physical force is not an element of

subsection (2) of the Guidelines’ definition of crime of vio-

lence, there is no volitional element implicated in its applica-

tion. The focus of the Guidelines is on “conduct that presents

a serious risk of physical injury to another.” Accordingly, the

inclusion of the term “recklessness” does not operate to

extend the range of proscribed conduct under the Alaska stat-

ute.

Citing Siggelkow v. State, 648 P.2d 611, 612 (Alaska Ct.

App. 1982), Rendon-Duarte argues that the Alaska statute

may be violated by causing a person to fear injury by the dis-

play of an unloaded weapon. Thus, he argues, a conviction

may be based on the state of mind of the victim, not the use

of a dangerous instrument. For purposes of applying the

Guideline, however, the critical factor is whether the defen-

dant’s conduct creates a serious potential risk of physical

injury; the victim’s state of mind is immaterial. In holding an

unloaded gun to be a dangerous weapon, the Supreme Court

reasoned that, among other things, “the display of a gun

instills fear in the average citizen; as a consequence, it creates

an immediate danger that a violent response will ensue.”

McLaughlin v. United States, 476 U.S. 16, 17-18 (1986); see

also United States v. Hunter, 101 F.3d 82, 86 (9th Cir. 1996)

(“Unloaded firearms . . . increase the risk of violence by oth-

ers who may respond to the perceived danger represented by

the (presumably) loaded gun.” (quoting United States v. Mar-

tinez, 912 F.2d 419, 421 (10th Cir. 1990)). In James, the

Court, in holding attempted burglary to be a crime of vio-

lence, reasoned that the offenses (of burglary, arson, extortion

7376 UNITED STATES v. RENDON-DUARTE

and explosives use) “while not technically crimes against the

person, nevertheless create significant risks of bodily injury or

confrontation that might result in bodily injury.” James, 127

S. Ct. at 1592. In sum, the application of the Alaska assault

statute to cases of unloaded weapons does not extend the

reach of that statute beyond the definition of crime of violence

in section 4B1.2(a)(2); the Guidelines are concerned with

conduct creating a serious potential risk of physical injury to

another. That risk is not defined by whether the weapon is

loaded.2

[9] Because a conviction under the Alaska statute qualifies

as a crime of violence under section 4B1.2(a)(2), the district

court’s error did not substantially affect Rendon-Duarte’s

2

Nor is the “otherwise” clause of the Guidelines—any offenses that oth-

erwise involve conduct that presents a serious potential risk of physical

injury—properly read in context with the enumerated crimes of violence

that precede the clause. The Tenth Circuit explained:

At the outset, the analysis in [United States v. Walker, 393 F.3d

819 (8th Cir. 2005)] ignores the more flexible articulation of

[section] 4B1.2’s “crime of violence” definition explained in its

commentary section. See USSG § 4B1.2 cmt. n.1. There this “or

otherwise” language is removed, and the inclusion of offenses

with conduct posing serious potential risk of physical injury is

de-linked from any preceding specific sequence of offenses. . . .

[T]he commentary . . . in a separate sentence explains that

“[o]ther offenses are included as ‘crimes of violence’ if . . . the

conduct . . . by its nature, presented a serious potential risk of

physical injury to another.” Id.

United States v. Moore, 420 F.3d 1218, 1221-22 (10th Cir. 2005); see also

James, 127 S. Ct. at 1592-93 (rejecting application of ejusdem generis in

interpreting the residual (“otherwise”) clause in the ACCA); United States

v. Veach, 455 F.3d 628, 637 (6th Cir. 2006) (holding that “driving while

under the influence of intoxicants presents, at the very least, a serious

potential risk that the driver will cause physical injury to another person”);

United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000)

(holding that misdemeanor drunk driving by its very nature involves con-

duct that presents a serious potential risk of physical injury to another).

UNITED STATES v. RENDON-DUARTE 7377

rights.

AFFIRMED.