United States v. Carr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30133

Plaintiff-Appellee,

v.  D.C. No.

CR-06-02156-WFN

MARCO DELANO CARR,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior Judge, Presiding

Argued and Submitted

November 8, 2007—Seattle, Washington

Filed January 25, 2008

Before: William C. Canby, Jr., Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Canby

1267

1270 UNITED STATES v. CARR

COUNSEL

Diane E. Hehir, Federal Public Defenders of Eastern Wash-

ington and Idaho, Yakima, Washington, for the defendant-

appellant.

Thomas J. Hanlon, Assistant United States Attorney, Yakima,

Washington, for the plaintiff-appellee.

OPINION

CANBY, Circuit Judge:

Marco Delano Carr appeals his conviction of being a felon

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

§ 922(g)(1). The underlying felony was Carr’s conviction in

Washington state court for “Felony Violation of a Protec-

tion Order—Domestic Violence,” Wash. Rev. Code

§ 26.50.110(5). Violation of a protection order is normally a

gross misdemeanor in Washington, but section 26.50.110(5)

makes it a felony if the offender has two previous convictions

for violation of a protection order. Carr contends that, for pur-

poses of the federal felon-in-possession statute, we should

construe his predicate Washington conviction as a gross mis-

demeanor, because in some other contexts we have ignored

recidivist sentencing enhancements in determining the sever-

ity of a conviction. We reject Carr’s contention because the

statutory structure under which he was convicted requires that

we treat his predicate Washington conviction as a felony. We

accordingly affirm his conviction.

UNITED STATES v. CARR 1271

FACTUAL AND PROCEDURAL BACKGROUND

In February 2006, Carr pleaded guilty in Washington state

court to one count of Felony Violation of a Protection Order

—Domestic Violence, pursuant to Washington Revised Code

§ 26.50.110(5), which provides in part:

A violation of a [protection] order . . . is a class

C felony if the offender has at least two previous

convictions for violating the provisions of [a protec-

tion] order.

The statutory maximum sentence for violations of section

26.50.110(5) is imprisonment for up to five years. Wash. Rev.

Code § 9A.20.020(1)(c). Under Washington’s mandatory sen-

tencing guidelines, Carr faced a range of six to twelve

months’ imprisonment. Applying a downward departure, the

trial court sentenced Carr to thirty days confinement with

credit for time already served.

A few months later, officers of the Yakima Police Depart-

ment arrested Carr on an outstanding warrant. After being

handcuffed, Carr alerted the arresting officers that he had a

dangerous weapon in his waistband, which turned out to be a

loaded pistol. Carr was subsequently indicted for possession

of a firearm by a person convicted of a crime punishable by

imprisonment for more than one year, in violation of 18

U.S.C. § 922(g)(1). The only predicate offense set forth in the

indictment was Carr’s February 2006 conviction of Felony

Violation of a Protection Order—Domestic Violence. Carr

moved to dismiss the indictment on the ground that his earlier

conviction failed to qualify as a predicate offense for his

felon-in-possession charge. The district court denied the

motion. Carr then entered a conditional guilty plea reserving

the right to challenge on appeal the district court’s denial of

his motion.

1272 UNITED STATES v. CARR

DISCUSSION

[1] We review de novo whether a prior conviction may

serve as a predicate offense for a felon-in-possession charge.

United States v. Simpson, 442 F.3d 737, 738 (9th Cir. 2006)

(per curiam). Carr’s indictment for violating § 922(g)(1) can-

not stand unless Carr “has [previously] been convicted in any

court of [ ] a crime punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 922(g)(1). The term by

which a crime is “punishable” is determined by the statutory

maximum punishment, not the actual term imposed or served.

United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir. 2005).

The phrase “crime punishable by imprisonment for a term

exceeding one year” has been further defined not to include

“any State offense classified by the laws of the State as a mis-

demeanor and punishable by a term of imprisonment of two

years or less.” 18 U.S.C. § 921(a)(20)(B). “What constitutes

a conviction of [a qualifying] crime shall be determined in

accordance with the law of the jurisdiction in which the pro-

ceedings were held.” Id. § 921(a)(20).

[2] Under Washington law, it is ordinarily a gross misde-

meanor to violate a court-issued protection order. Id.

§ 26.50.110(1). Gross misdemeanors are punishable “by

imprisonment . . . for a maximum term . . . of not more than

one year.” Id. § 9A.20.020(2). If, however, the offender has

two or more previous convictions for violating a protection

order, the offense becomes a class C felony, Id.

§ 26.50.110(5), which is punishable “by imprisonment . . . for

a maximum term of not more than five years,” Wash. Rev.

Code § 9A.20.020(1)(c). On the face of this statute, then,

Carr’s predicate offense was sufficient to sustain his felon-in-

possession conviction, because he pleaded guilty to a felony

with a statutory maximum sentence of five years.

Carr contends, however, that we must regard his conviction

under this statute as the equivalent of a gross misdemeanor

with a sentencing enhancement for recidivism that we may

UNITED STATES v. CARR 1273

not take into account. He relies principally on United States

v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc),

superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4

(2002). In Corona-Sanchez, we addressed a federal sentenc-

ing enhancement applicable to an alien convicted of unlaw-

fully reentering the United States after deportation. Id. at

1202. The issue was whether Corona-Sanchez’s prior Califor-

nia theft conviction, which became punishable for more than

one year only by operation of a state recidivist sentencing

statute, met the federal definition of “aggravated felony.” Id.

at 1203. We held that, “under the categorical approach, we

must consider the sentence available for the crime itself, with-

out considering separate recidivist sentencing enhancements.”

Id. at 1209. Because Corona-Sanchez’s theft conviction car-

ried a maximum sentence of only six months without the

recidivist sentencing enhancements, it did not qualify as an

“aggravated felony” and could not be used to increase the

maximum sentence for Corona-Sanchez’s unlawful reentry.

Id. at 1210-11.

Since Corona-Sanchez, our sentencing cases have often

adopted the distinction between a “core offense” and “sen-

tence enhancements” to determine whether defendants’ prior

state convictions count as “felonies,” “aggravated felonies” or

“serious drug offenses” under federal law, so as to increase

the applicable guideline ranges and statutory terms of impris-

onment. See, e.g., United States v. Pimentel-Flores, 339 F.3d

959, 967-69 (9th Cir. 2003) (applying the logic of Corona-

Sanchez to “the determination of whether a defendant’s prior

offense was a ‘felony’ ” within the federal meaning of

“felony” in U.S.S.G. § 2L1.2(b)(1)(A)); United States v. Rod-

riquez, 464 F.3d 1072, 1079-82 (9th Cir. 2006) (state convic-

tion for drug offense that carried a statutory maximum of five

years, but had been elevated to ten years because of defen-

dant’s prior drug offenses, did not count as a “serious drug

offense” for enhancement purposes under the Armed Career

Criminal Act), cert. granted, 128 S. Ct. 33 (2007).

1274 UNITED STATES v. CARR

These cases, however, are fundamentally distinguishable

from Carr’s because they apply entirely different statutes for

the different purpose of federal sentence enhancements. They

follow the categorical approach adopted by the Supreme

Court for determining whether a given state crime proscribes

conduct that fits the federal definition of a sentence-

enhancing crime. See Taylor v. United States, 495 U.S. 575,

588-89 (1990). That approach is intended to ascertain what

crimes met the federal definitions “regardless of how they

were labeled by state law.” Id. at 589; see also Corona-

Sanchez, 291 F.3d at 1210 (agreeing with sister circuits that

“it is irrelevant whether the state labels the underlying crime

‘misdemeanor’ or ‘felony’ ”).

The felon-in-possession statute under which Carr was con-

victed operates on entirely different, and indeed almost oppo-

site, premises. Far from insisting upon federal categorizations

of state crimes, the applicable interpretative provision for

§ 922(g)(1) makes it clear that “[w]hat constitutes a convic-

tion of [a qualifying] crime shall be determined in accordance

with the law of the jurisdiction in which the proceedings were

held.” 18 U.S.C. § 921(a)(20). The statute further provides an

exception for “any State offense classified by the laws of the

State as a misdemeanor and punishable by a term of impris-

onment of two years or less.” Id. § 921(a)(20)(B) (emphasis

added). Thus, we must look to Washington law to determine

whether Carr was convicted of a “crime punishable by impris-

onment for a term exceeding one year.” Id. § 922(g)(1).

[3] We have little doubt that Washington considers Felony

Violation of Protection Order under Washington Revised

Code § 26.50.110(5) to be a crime defined by elements differ-

ent from those of Misdemeanor Violation of Protection Order

under Washington Revised Code § 26.50.110(1). “As set forth

in the statute, the prior convictions function as an element of

the felony violation of a no contact order.” State v. Oster, 52

P.3d 26, 28 (Wash. 2002) (emphasis added).1 The prior con-

1

The decision of the Court of Appeals of Washington in State v. Davis

is not to the contrary. See 64 P.3d 661 (Wash. Ct. App. 2003), aff’d, 111

UNITED STATES v. CARR 1275

victions must be found by the jury beyond a reasonable doubt.

Id. No such element or requirement exists for Misdemeanor

Violation of Protection Order.

[4] We conclude, therefore, that Washington regards Carr’s

conviction, by its elements, as a felony and not as a misde-

meanor. By pleading guilty to Washington Revised Code

§ 26.50.110(5), Carr did not simply admit the misdemeanor

elements of section 26.50.110(1) and consign himself to the

possibility that the sentencing judge might “elevate” his sen-

tence to a felony level; he actually pleaded guilty to all the

elements of section 26.50.110(5) and, under Washington law,

consigned himself to the certainty of a felony conviction pun-

ishable by imprisonment for up to five years. See Wash. Rev.

Code § 26.50.110(5); id. § 9A.20.020(1)(c). In other words,

the “elevation” of Carr’s offense from gross misdemeanor to

felony was consummated before sentencing proceedings even

began: the felony designation and the potential imprisonment

for up to five years resulted directly from the conviction of a

crime with a distinctive felony element, not from the sentenc-

ing proceedings. Accordingly, Carr’s conviction satisfies all

the requirements of § 922(g)(1).

[5] Carr offers an additional argument based on the enact-

ment of the Lautenberg Amendment to the Gun Control Act

in 1996. The Lautenberg Amendment added sections to the

felon-in-possession statute to make it apply to individuals

who are subject to protection orders that comply with certain

procedural requirements or who have been convicted of mis-

P.3d 844 (Wash. 2005), aff’d, 126 S. Ct. 2266 (2006). In Davis, the state

court did observe that “[u]nlike most crimes, felony violation of a no-

contact order is not a separate, distinct crime. Rather, the statute defines

a misdemeanor crime and then enumerates the grounds on which the crime

is elevated to a felony.” Id. at 668 (footnote omitted). The court neverthe-

less held that the aggravating fact causing the violation to become a felony

constituted an element of the felony that must be found by the jury beyond

a reasonable doubt. Id.

1276 UNITED STATES v. CARR

demeanor crimes of domestic violence. 18 U.S.C.

§ 922(g)(8)-(9). According to Carr, the passage of the Lauten-

berg Amendment in 1996 manifests Congress’ understanding

that a person subject to a “no contact” order was not covered

by the general prohibition in § 922(g)(1).

[6] We reject this argument. Section 922(g)(1) prohibits

possession of a firearm by a person convicted of a crime pun-

ishable by more than one year in prison. Prior to the Lauten-

berg Amendment, there was no reason to read into

§ 922(g)(1) an unstated exception for crimes involving viola-

tion of a protection order. Nor is there any reason to assume

that Congress intended to narrow subsection (g)(1) when it

passed the Lautenberg Amendment. Carr was charged under

subsection (g)(1) as a person who had been convicted of a

crime punishable by imprisonment for more than one year. He

met the requirements of that subsection. The fact that he may

or may not have been in violation of subsections (g)(8) or

(g)(9), added by the Lautenberg Amendment, has no effect on

the validity of the charge against him under subsection (g)(1).

[7] Finally, Carr argues that any statutory ambiguity should

be resolved in his favor by operation of the rule of lenity. It

is well established that “ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity.” Rewis

v. United States, 401 U.S. 808, 812 (1971). The ambiguity,

however, must be genuine. See, e.g., Perrin v. United States,

444 U.S. 37, 49 n.13 (1979). Lenity, “which is rooted in con-

siderations of notice,” United States v. Romm, 455 F.3d 990,

1001 (9th Cir. 2006), cert. denied, 127 S. Ct. 1024 (2007),

may not be used “in complete disregard of the purpose of the

legislature,” Scarborough v. United States, 431 U.S. 563, 577

(1977), to “dictate an implausible interpretation of a statute”

or “one at odds with the generally accepted contemporary

meaning of a term,” Taylor, 495 U.S. at 596. Contrary to

Carr’s suggestion, the prohibition on gun possession sanc-

tioned in § 922(g)(1) is neither ambiguous nor lacking in

notice: it plainly prohibits anyone “who has been convicted in

UNITED STATES v. CARR 1277

any court of . . . a crime punishable by imprisonment for a

term exceeding one year” from possessing a firearm. As the

state “Felony Judgment and Sentence” clearly demonstrates,

Carr voluntarily pleaded guilty to and was convicted of an

offense that he knew was a felony punishable by imprison-

ment for up to five years. The rule of lenity does not apply.2

CONCLUSION

The judgment of the district court is

AFFIRMED.

2

Carr also argues that, after Blakely v. Washington, 542 U.S. 296

(2004), the determination whether a crime is “punishable by imprisonment

for a term exceeding one year,” 18 U.S.C. § 922(g)(1), must focus not on

the potential maximum sentence authorized by the statute, but rather on

the maximum sentence under the state’s mandatory guidelines. As Carr

candidly acknowledges, we conclusively rejected this argument in United

States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005), and are not at lib-

erty to revisit the issue here.