United States v. Mayer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30274

Plaintiff-Appellee, D.C. No.

v.  CR-05-60072-ALA

CASEY DALE MAYER, ORDER AND

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

May 5, 2008—Portland, Oregon

Filed March 16, 2009

Before: Richard C. Tallman, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Order;

Dissent to Order by Chief Judge Kozinski;

Opinion by Judge N.R. Smith;

3295

UNITED STATES v. MAYER 3299

COUNSEL

Craig E. Weinerman, Assistant Federal Public Defender,

Eugene, Oregon, for the defendant-appellant.

Frank R. Papagni, Jr., Assistant United States Attorney,

Eugene, Oregon, for the plaintiff-appellee.

ORDER

The opinion in the above-captioned matter filed on June 30,

2008, and published at 530 F.3d 1099, is WITHDRAWN. The

superseding opinion shall be filed concurrently with this

order.

Having made the foregoing amendments to the opinion, all

judges on the panel have voted to deny Defendant/Appellee’s

Petition for Panel Rehearing, and so that petition is DENIED.

The full court has been advised of Defendant/Appellee’s

Petition for Rehearing En Banc, and a judge of this court

requested a vote on whether this case should be reheard en

banc; however, a majority of the active judges did not vote in

favor of en banc consideration. Fed. R. App. P. 35. Accord-

ingly, the Petition for Rehearing En Banc is also DENIED.

3300 UNITED STATES v. MAYER

Chief Judge KOZINSKI, with whom Judges REINHARDT

and W. FLETCHER join, dissenting from the denial of

rehearing en banc.

This is a train wreck in the making.

The panel cleaves a formerly uniform doctrine—the Taylor

categorical approach—into two branches. One approach for

most things; a separate, incompatible version for a single

clause of the Armed Career Criminal Act. This approach is

novel, difficult to administer and will encourage future panels

to splinter the categorical approach into even smaller pieces.

That’s not all: The panel also reads ACCA’s residual clause

so broadly that nearly any crime will qualify. And it does so

by embracing an argument that the Supreme Court rejected

this Term, in an opinion on which the ink is barely dry. This

is precisely the sort of case we need to take en banc in order

to prevent serious damage to the fabric of our circuit law.

1. The categorical approach of Taylor v. United States, 495

U.S. 575, 600 (1990), has been applied with remarkable uni-

formity to many areas of law. It’s used for ACCA; it’s used

for immigration; it’s used for the Sentencing Guidelines. The

inquiry in all of these areas is identical and elegant: Does the

state offense reach conduct beyond the generic federal defini-

tion? The way we answer that question is by looking at state

prosecutions to see whether any of them actually involved

such uncovered conduct.

This case is about whether Oregon’s first-degree burglary

statute is a crime of violence. There are two ways that it could

be. First, it could qualify as a generic Taylor burglary; second,

it could fall under the statute’s residual clause, which covers

crimes that present a “serious potential risk of physical inju-

ry.” The panel quickly recognizes that Oregon’s burglary stat-

ute doesn’t qualify as generic burglary. United States v.

Mayer, 530 F.3d 1099, 1106 (9th Cir. 2008). The only

UNITED STATES v. MAYER 3301

remaining question is whether Oregon burglary falls within

the residual clause.

To determine whether this is the case, the panel needs to

ask a simple question: Does Oregon’s burglary statute only

reach conduct that presents a “serious potential risk of physi-

cal injury?” And the right answer is obviously no: Oregon

prosecutes as burglars people who pose no risk of injury to

anyone. E.g. State v. Keys, 244 Or. 606 (1966) (upholding

burglary conviction for entering public telephone booths to

steal change from coin boxes). Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007), held that an offender can show

“that a state statute creates a crime outside the generic defini-

tion . . . in a federal statute” by pointing to “cases in which

the state courts in fact did apply the statute” more broadly

than the federal definition would reach. Keys, decided by the

state’s highest court, is such a case.

Instead of asking and answering this simple question, the

panel comes up with a new, complicated question to ask: Do

“[m]ost of the cases” under the state statute involve dangerous

conduct? Mayer, 530 F.3d at 1108. Forget, for the moment,

whether this inquiry has a basis in law. Don’t even think

about how a court is supposed to figure out whether a statute

is applied in a certain way “most of the time.” (A statistical

analysis of the state reporter? A survey? Expert evidence?

Google? Gut instinct?) Ask instead: Why should we want to

fork the categorical approach into multiple branches?

A great virtue of the categorical approach has been its con-

sistency across doctrinal areas. Immigration cases that explain

it, like Duenas-Alvarez, can be applied to ACCA. E.g. James

v. United States, 127 S.Ct. 1586, 1597 (2007) (citing Duenas-

Alvarez). ACCA cases, like Taylor, can be applied to the Sen-

tencing Guidelines. E.g. United States v. Snellenberger, 548

F.3d 699, 700 (9th Cir. 2008) (en banc) (citing Taylor). And

Sentencing Guidelines cases, like Snellenberger, can be

applied to immigration. E.g. Renteria-Morales v. Mukasey,

3302 UNITED STATES v. MAYER

551 F.3d 1076, 1082 (9th Cir. 2008) (citing Snellenberger).

The interoperability of the doctrine means that precedents can

be mixed and matched, regardless of which statute was at

issue in which case. One approach; one body of law. Com-

plex, to be sure, but at least uniform in application.

By creating a side-spur just for ACCA’s residual clause, the

panel has laid the groundwork for major confusion. This is

especially true given that we have already applied the ordi-

nary categorical approach to every other part of the same stat-

utory sentence: the enumerated offenses of burglary, United

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc);

arson, United States v. Velasquez-Reyes, 427 F.3d 1227 (9th

Cir. 2005); extortion, United States v. Becerril-Lopez, 528

F.3d 1133 (9th Cir. 2008); and the use of explosives, United

States v. Fish, 368 F.3d 1200 (9th Cir. 2004). There is nothing

whatsoever about the position or language of the residual

clause that would suggest different treatment: ACCA defines

a crime of violence as an offense that “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)(ii) (emphasis

added). No one reading this definition could predict that the

underlined phrase would be treated differently than the rest of

the sentence—or explain why. Suddenly, any statutory

comma may trigger a doctrinal shift. Whatever happened to

ejusdem generis? The law in this area is difficult enough with-

out such pointless complexity.

Now, circle back to that question about the legal basis for

this needless innovation: There is none. The panel says, quot-

ing James, that not “every conceivable factual offense cov-

ered by a statute” need fall within the generic federal

definition for it to categorically qualify. Mayer, 530 F.3d at

1108. True. The Supreme Court said as much in Duenas-

Alvarez, where it cautioned against unsubstantiated flights of

legal imagination. James, in fact, cites Duenas-Alvarez for

this proposition. But a caution against legal imagination has

UNITED STATES v. MAYER 3303

no relevance to our case because Oregon has in fact applied

its burglary statute to non-dangerous conduct. The panel is

thus interpreting James and Duenas-Alvarez, decided only

three months apart, to require different outcomes depending

on whether the case is about immigration or ACCA’s residual

clause. If this is what the James majority had in mind, one

would think they would do more than cite Duenas-Alvarez

with a cf.

The panel has dragged us far out of the mainstream. We

now have the dubious distinction of being the only federal

court in the country to hold that there are two categorical

approaches: one for most situations and another one for the

ACCA’s residual clause. It’s going to be a tough regime to

administer, and wrong to boot.

2. But there’s more. Congress didn’t intend ACCA “to be

all-encompassing,” or it wouldn’t have included the enumer-

ated crimes at all. Begay v. United States, 128 S.Ct. 1581,

1585 (2008). The residual clause therefore reaches only those

crimes “characteristic of the armed career criminal, the epo-

nym of the statute.” Id. at 1586 (internal quotation marks and

citation omitted). Congress’s intent was to combat the “spe-

cial danger created when a particular type of offender” pos-

sesses a gun. Id. at 1587 (emphasis added). This suggests a

narrow residual clause, which is appropriate given the harsh

15-year minimum sentence that ACCA provides.

The panel adopts an argument that stretches the residual

clause beyond recognition: Oregon’s burglars are dangerous,

says the panel, because they might turn violent if appre-

hended. Mayer, 530 F.3d at 1108-09. While the Supreme

Court has held that “attempting a break-in” creates a special

risk of violent confrontation, James, 127 S.Ct. at 1595, Ore-

gon’s burglars don’t need to break in. As Keys illustrates,

Oregon has eliminated the unlawful entry requirement. Our

colleague, then-Justice Goodwin, worried in dissent that his

court had made a burglar of a man who enters a courthouse

3304 UNITED STATES v. MAYER

intending to perjure himself. Keys, 244 Or. at 617. The special

danger of a break-in is therefore absent. It’s true that a burglar

in Portland might turn violent if the police attempt to appre-

hend him, but so might any criminal caught committing any

serious crime. Accepting this argument turns ACCA into a

general sentence enhancement for recidivists and renders the

enumerated offenses mere surplusage.

The validity of this “dangerousness at apprehension” theory

is not an open question; the Supreme Court just rejected it.

Chambers v. United States, 129 S.Ct. 687 (2009), considered

whether failure to report for incarceration is a violent felony

under ACCA’s residual clause. The government argued that

failing to report makes criminals dangerous because they may

be violent if apprehended, and “[shoot] at officers attempting

to recapture them.” Id. at 692. This argument, which carried

the day in our court, was dismissed by the Supreme Court as

“beside the point.” In the Court’s view, the “question is

whether such an offender is significantly more likely than oth-

ers to attack, or physically to resist, an apprehender.” Id.

(emphasis added).

There is nothing about an Oregon burglar that makes him

more likely to turn violent if cornered than any other serious

felon. If Oregon burglary qualifies under ACCA’s residual

clause, so does any other serious felony in the nine Western

states. This is precisely the result the Supreme Court warned

against in Begay. The panel manages to create a conflict with

two recent Supreme Court cases—Begay and Chambers, the

latter only a few weeks old.

* * *

We have sown the wind and will reap the whirlwind. Mr.

Mayer’s the first casualty; he won’t be the last.

UNITED STATES v. MAYER 3305

OPINION

N.R. SMITH, Circuit Judge:

The district court properly denied Casey Dale Mayer’s

motion to suppress, because (1) officers had probable cause

to believe that Mayer lived at the residence they searched and

(2) the conditions of his probation authorized the search. We

also hold that the district court properly found that Mayer’s

prior conviction for first-degree burglary in Oregon was a

predicate “violent felony” under the residual clause of the

Armed Career Criminal Act (“ACCA”). In the ordinary case,

conduct falling within Oregon’s first degree burglary statute

presents a serious possibility of risk of physical injury to oth-

ers. Lastly, the district court properly concluded that Mayer’s

two prior drug convictions were “serious drug offenses” under

the ACCA because Mayer’s offenses involved manufacturing

and delivering marijuana and Oregon law prescribes a maxi-

mum term of imprisonment of ten years or more for such

offenses. We have jurisdiction under 28 U.S.C. § 1291. We

affirm.

BACKGROUND

I. Factual Background

In February 2004, Mayer was on both post-prison supervi-

sion and probation as a result of two convictions for drug-

related offenses.1 Mayer’s probation record indicated that he

had lived at 103 Hansen Lane since September 2000. On

1

Mayer was serving post-prison supervision for a conviction, entered on

October 8, 2001, in the Circuit Court of the State of Oregon for Lane

County of: (i) unlawful manufacture of a controlled substance, (ii) deliv-

ery of marijuana for consideration, (iii) unlawful possession of a con-

trolled substance, and (iv) felon in possession of a firearm. Mayer was

sentenced to probation for a conviction, entered on February 2, 2004, in

the same court for: (i) unlawful manufacture of a controlled substance, and

(ii) unlawful delivery of a controlled substance.

3306 UNITED STATES v. MAYER

August 26, 2003, Mayer informed his Parole and Probation

Officer, Melinda Rauch, that he had moved temporarily to a

new residence located at 605 Davis Street. Between August

2003 and February 2004, Rauch met with Mayer twice at 605

Davis Street.

On February 24, 2004, one of Mayer’s former neighbors

from Hansen Lane called Rauch. He informed her that Mayer

was again living at 103 Hansen Lane and was likely selling

drugs out of the house. Rauch drove by 103 Hansen Lane on

several occasions; however, she was not able to personally

verify the caller’s information.2 In April 2004, Mayer

absconded from probation and post-prison supervision, and

two warrants were issued for his arrest.

On December 28, 2004, Parole and Probation supervisor

Susan McFarland received an anonymous phone call from a

man who refused to identify himself. The man stated (a) that

“absconded parolee Casey Mayer” was at 103 Hansen Lane,

(b) that he was certain that Mayer had a firearm, and (c) that

Mayer was probably growing marijuana. The man expressed

fear that Mayer would kill him if Mayer found out that he had

called the probation department. He also indicated that Mayer

would try to escape out of the back of the house if probation

officers knocked on the front door.

McFarland’s practice was to use the probation department’s

database to verify the information from an anonymous caller.

McFarland used the database to check Mayer’s listed address,

prior contacts and convictions, outstanding warrants, and to

assess his dangerousness. McFarland also called Rauch, who

advised her that there was a high likelihood that Mayer would

have weapons in the house and that he would resist arrest.

2

Rauch could not recall the dates on which she attempted to locate

Mayer.

UNITED STATES v. MAYER 3307

McFarland and four other Parole and Probation officers

then went to 103 Hansen Lane to execute the two outstanding

arrest warrants. When they arrived, McFarland positioned two

officers at the front door and sent two other officers to the rear

of the house (where the officers entered Mayer’s backyard

through an open gate) to block the suspected escape route and

to cover for the other officers. McFarland then noticed a man

and a woman standing directly across the street. When

McFarland approached the couple, the man told McFarland

that Mayer lived at 103 Hansen Lane, that Mayer lived by

himself, and that he had noticed a lot of people going in and

out of the house.

McFarland returned to join the officers at the front of the

house, who were pounding on the front door and identifying

themselves loudly and repeatedly. Although the officers heard

someone moving around in the house and the sounds of a tele-

vision coming from inside the house, no one answered the

door.

McFarland then went to the back of the house to check on

the other two officers. While in the backyard, she observed an

18-inch gap in the backyard fence, which she believed to be

the escape route described by the anonymous caller. McFar-

land also observed a bright light emanating from a plastic vent

in the house’s foundation, and she heard a loud electrical

buzzing noise coming from behind the vent. McFarland

peeked through a slit in the vent, saw a marijuana plant, and

smelled marijuana.

While McFarland was at the back of the house, one of the

officers (positioned at the front of the house) heard sounds

coming from the attic and called the sheriff’s department to

request back-up assistance. When the sheriff’s deputies

arrived, McFarland told Deputy Sheriff Eric Franklin about

her observations at the rear of the house. Franklin positioned

himself at the back of the house, outside of the fence. Franklin

had a photograph of Mayer that he handed through the slats

3308 UNITED STATES v. MAYER

in the fence to Deputy Sheriff David Thomas, who was sta-

tioned in the backyard. Thomas told Franklin that he had seen

Mayer inside of the house. Franklin then crossed the fence

and went into the backyard, where he observed a marijuana

plant, smelled the odor of growing marijuana, and saw a PVC

pipe consistent with a hydroponic marijuana growing opera-

tion.

Approximately 1.5 hours after the probation officers

arrived, Mayer and his brother came out of the house. Mayer

admitted that there was marijuana growing inside the house,

but denied the presence of firearms. He also refused to con-

sent to a search of the residence.

Deputy Marvin Combs then applied for, and obtained, a

search warrant based on information that Franklin provided

over the telephone. The subsequent search revealed mari-

juana, items associated with growing marijuana, a .45 caliber

pistol in the attic, and a box of .45 caliber ammunition in the

bedroom.

II. Procedural History

On July 21, 2005, Mayer was indicted for being a felon in

possession of a firearm and ammunition, in violation of 18

U.S.C. § 922(g)(1), as enhanced under the ACCA. On

November 18, 2005, Mayer filed a motion to suppress the

firearm. On March 8, 2006, following a suppression hearing,

the district court denied the motion. On June 30, 2006, Mayer

entered a conditional guilty plea pursuant to Federal Rule of

Criminal Procedure 11(a)(2), expressly reserving in writing

the right to appeal the denial of his suppression motion.

The government argued that the district court should

enhance Mayer’s sentence under the ACCA, because Mayer

had one prior conviction for a violent felony and two prior

convictions for serious drug offenses. The ACCA imposes a

special mandatory 15-year prison term upon felons who

UNITED STATES v. MAYER 3309

unlawfully possess a firearm and who also have three or more

previous convictions for “ ‘a violent felony or a serious drug

offense.’ ” United States v. Jennings, 515 F.3d 980, 987 (9th

Cir. 2008) (quoting 18 U.S.C. § 924(e)(1)). On July 13, 2007,

following a sentencing hearing, the district court determined

that Mayer’s prior convictions were qualifying offenses under

the ACCA, and sentenced Mayer to 180 months imprison-

ment, followed by five years of supervised release.

STANDARDS OF REVIEW

We review de novo a district court’s denial of a motion to

suppress. United States v. Lopez, 474 F.3d 1208, 1212 (9th

Cir. 2007). We review a district court’s underlying factual

findings for clear error. Id. We may affirm the denial of a

motion to suppress “on any basis fairly supported by the

record.” United States v. Todhunter, 297 F.3d 886, 889 (9th

Cir. 2002) (internal quotation marks omitted). We also review

de novo whether a prior conviction is a predicate felony under

the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th

Cir. 2007) (en banc).

DISCUSSION

I. Motion to Suppress

Mayer first argues that the officers illegally entered his

backyard and that, consequently, their observations of crimi-

nal activity were tainted. Mayer therefore contends that the

officers’ observations while in his backyard were improperly

included in the affidavit supporting the search warrant. We

disagree.

[1] In determining whether a search is reasonable, we

examine the “totality of the circumstances” in a “common-

sense” manner. United States v. Diaz, 491 F.3d 1074, 1078

(9th Cir. 2007). Because probationers enjoy only a “condi-

tional liberty properly dependent on observance of special

3310 UNITED STATES v. MAYER

[probation] restrictions,” states may constitutionally permit

probation officers to conduct searches without a warrant and

with less than probable cause. Griffin v. Wisconsin, 483 U.S.

868, 873-880 (1987) (alteration in original) (quoting Mor-

rissey v. Brewer, 408 U.S. 471, 480 (1972)). Thus, warrant-

less searches of probationers’ residences are permissible

under the Fourth Amendment when they are authorized by a

condition of probation and supported by reasonable suspicion

of criminal activity. United States v. Knights, 534 U.S. 112,

121-22 (2001).

[2] Even though officers only entered Mayer’s backyard

during the probation search, the conditions of Mayer’s proba-

tion authorized a warrantless search of his entire residence.

One condition of Mayer’s probation was that he “[p]ermit the

probation officer to visit [him] or [his] work site or residence

and to conduct a walk-through of the common areas and of

the rooms in the residence occupied by or under [his] con-

trol.” Another condition was that he had to “[c]onsent to the

search of person, vehicle or premises upon . . . request . . . if

the supervising officer has reasonable grounds to believe that

evidence of a violation will be found.”

[3] There is no doubt that the Parole and Probation officers

had a “reasonable suspicion” of criminal activity. Parole and

Probation officers received two phone calls — one from a

neighbor and one from an anonymous source — in which the

callers reported that Mayer was selling marijuana, and that he

was in possession of a firearm.

[4] Before law enforcement officers may conduct a war-

rantless probation search, however, they must also have prob-

able cause to believe that the probationer actually lives at the

residence searched. See United States v. Howard, 447 F.3d

1257, 1262 (9th Cir. 2006); Motley v. Parks, 432 F.3d 1072,

1079-80 (9th Cir. 2005) (en banc). In Illinois v. Gates, 462

U.S. 213, 233-34, 243-46 (1983), the Supreme Court held that

probable cause may be established based on a tip from an

UNITED STATES v. MAYER 3311

anonymous informant if there are sufficient indicia of reliabil-

ity. Such indicia include the informant’s history of providing

accurate information on previous occasions, a detailed

description of the alleged wrongdoing that the informant wit-

nessed first-hand, the provision of details not easily obtained

or predicted, or the police’s ability to corroborate the informa-

tion. Id.

[5] The district court correctly determined that the officers

had probable cause to believe that Mayer resided at 103 Han-

sen Lane on the day of the search. First, Mayer had previously

resided at the Hansen Lane address, providing some basis for

the officers to believe that he might be residing there again.

When Mayer reported his change of address to the Davis

Street address, he indicated that the move was “temporary.”

The fact that Mayer had absconded from probation presum-

ably meant that Rauch had been unable to locate Mayer at the

Davis Street address.

[6] Second, in February 2004, one of Mayer’s Hansen Lane

neighbors called Rauch to report that Mayer was residing at

103 Hansen Lane and likely selling drugs from the residence.

Although this information was provided by an informant,

Rauch testified that she knew the neighbor’s name and

address, had known him for a long time, and trusted him. The

information provided by the neighbor was consistent with

Mayer’s previous convictions for marijuana offenses, and it

tended to show that Mayer was living at the Hansen Lane

address. See Gates, 462 U.S. at 243-45.

[7] Third, on the day of the search, McFarland received an

anonymous phone call informing her that Mayer could be

found at 103 Hansen Lane. The caller knew that Mayer had

absconded from probation, believed Mayer had a gun and a

marijuana growing operation, and knew about a possible

escape route through the backyard. These facts were arguably

specific details not readily known by the public, and they

were corroborated by Mayer’s previous residence at 103 Han-

3312 UNITED STATES v. MAYER

sen Lane, his history of marijuana and firearms offenses, the

fact that he had actually absconded from parole, and McFar-

land’s subsequent observation of a possible escape route. See

id. at 234, 243-45.

[8] Finally, before McFarland entered the backyard of 103

Hansen Lane, a man who lived directly across the street told

her that Mayer lived there alone. This provided further cor-

roboration that Mayer was actually living at the Hansen Lane

address.3 Thus, under the totality of the circumstances, the

officers had probable cause to believe that Mayer was living

at 103 Hansen Lane on the date of the search. Accordingly,

we hold that the district court correctly ruled that the officers’

warrantless entry into Mayer’s backyard did not violate his

Fourth Amendment rights, and the officers’ observations of

criminal activity were properly included in the affidavit sup-

porting the search warrant.

We next turn to Mayer’s argument that the district court

erred by failing to suppress the firearm found in his residence.

As discussed above, the officers could have conducted a con-

stitutionally permissible warrantless search of Mayer’s entire

residence. The officers, however, went an extra step and

obtained a search warrant before entering Mayer’s residence.

“A search warrant, to be valid, must be supported by an affi-

davit establishing probable cause.” United States v. Jawara,

474 F.3d 565, 582 (9th Cir. 2007) (internal quotation marks

3

Mayer asserts that the district court should not have relied on this infor-

mation because, by the time that McFarland spoke with the neighbor,

other officers had already entered the backyard and made tainted observa-

tions of the marijuana growing operation. That argument is not persuasive,

however, because the affidavit for the search warrant was based only on

information provided by McFarland (who at that point in time had not yet

entered the backyard or talked to any officer who had), and Deputies

Franklin and Thomas (who were not yet at the scene). See Segura v.

United States, 468 U.S. 796, 814-15 (1984) (holding that evidence

obtained by officers prior to their illegal entry was not subject to exclu-

sion).

UNITED STATES v. MAYER 3313

omitted) (quoting United States v. Stanert, 762 F.2d 775, 778

(9th Cir. 1985)).

[9] Even if the conditions of Mayer’s probation had not

authorized the search of his residence, the totality of the cir-

cumstances indicate that the search warrant was supported by

probable cause. See Gates, 462 U.S. at 230-31. The affidavit

supporting the search warrant established that, in Mayer’s

backyard, officers had heard a loud buzzing noise, observed

growing marijuana, smelled the odor of growing marijuana,

and saw a PVC pipe consistent with a hydroponic marijuana

growing operation. Although these observations alone suffi-

ciently established probable cause for the search warrant, they

also corroborated the information received by Parole and Pro-

bation officers from informants, further supporting probable

cause. Additionally, Mayer admitted that there was marijuana

in the house after he and his brother came outside. The district

court therefore properly held that the search of Mayer’s resi-

dence did not violate the Fourth Amendment, and properly

denied Mayer’s motion to suppress the firearm.

II. Predicate Offenses Under the ACCA

[10] “The Armed Career Criminal Act imposes a special

mandatory 15-year prison term upon felons who unlawfully

possess a firearm and who also have three or more previous

convictions for committing certain drug crimes or ‘violent

felon[ies].’ ” Begay v. United States, 128 S. Ct. 1581, 1583

(2008) (brackets in original) (quoting 18 U.S.C. § 924(e)(1)).

The district court held that Mayer’s prior burglary conviction

was a “violent felony” under the ACCA, and that Mayer’s

other two prior convictions were “serious drug offenses”

under the ACCA.

A. Mayer’s Burglary Conviction

[11] Mayer argues that the district court erred by holding

that his 1994 Oregon conviction for first-degree burglary

3314 UNITED STATES v. MAYER

qualified as a predicate “violent felony.” The ACCA defines

a “violent felony” as any crime punishable by imprisonment

of more than a year 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.

See 18 U.S.C. § 924(e)(2)(B).

[12] To determine whether Mayer’s state conviction for

burglary constitutes generic “burglary” under the ACCA, we

first apply the categorical approach set forth in Taylor v.

United States, 495 U.S. 575, 599-602 (1990). Under the cate-

gorical approach, we look only to the state’s statutory defini-

tion of the crime, and not to the specific conduct underlying

the conviction. See United States v. Wenner, 351 F.3d 969,

972 (9th Cir. 2003). A state conviction is a predicate “burgla-

ry” offense if it has “the basic elements of unlawful or unpriv-

ileged entry into, or remaining in, a building or structure, with

intent to commit a crime.” Taylor, 495 U.S. at 599.

Under Oregon law, a person commits first-degree burglary

if he

violates [the second degree burglary statute] and the

building is a dwelling, or if in effecting entry or

while in a building or in immediate flight therefrom

the person: (a) Is armed with a burglary tool or theft

device . . . or a deadly weapon; (b) Causes or

attempts to cause physical injury to any person; or

(c) Uses or threatens to use a dangerous weapon.

Or. Rev. Stat. § 164.225(1). A person commits second-degree

burglary if he “enters or remains unlawfully in a building with

intent to commit a crime therein.” Or. Rev. Stat. § 164.215(1).

A “building” is, “in addition to its ordinary meaning . . . any

booth, vehicle, boat, aircraft or other structure adapted for

overnight accommodation of persons or for carrying on busi-

UNITED STATES v. MAYER 3315

ness therein.” Or. Rev. Stat. § 164.205(1). A “dwelling” in

Oregon is defined as a “building which regularly or intermit-

tently is occupied by a person lodging therein at night,

whether or not a person is actually present.” Or. Rev. Stat.

§ 164.205(2).

[13] Oregon Revised Statutes section 164.225 is therefore

broader than the definition of generic burglary because the

statute does not limit burglary to “building[s] or structure[s],”

but also includes non-structures (such as booths, vehicles,

boats, and aircraft) that are regularly or intermittently used as

lodgings. Cf. Taylor, 495 U.S. at 599. Although we held in

United States v. Hunt, 925 F.2d 1181 (9th Cir. 1991), that

first-degree burglary under Oregon Revised Statutes section

164.225 was categorically a generic burglary, Hunt has been

undermined by our subsequent en banc opinion in United

States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc).

[14] In Grisel, we held that Oregon’s second-degree bur-

glary statute defined burglary more broadly than the generic

definition because it included entries into booths, vehicles,

boats, or aircraft. See id. at 850-52. In so holding, we

explained that, in Taylor, the Supreme Court made clear that

the generic term “building or structure” was limited to struc-

tures designed for occupancy and intended for use in one

place. See Grisel, 488 F.3d at 848-49. In Grisel, we also

expressly overruled prior cases, including United States v.

Sweeten, 933 F.2d 765 (9th Cir. 1991), which had held that

non-buildings (such as vehicles) adapted for overnight accom-

modation qualified as generic “building[s] or structure[s].” Id.

at 851 n.5. Although our en banc opinion in Grisel did not

expressly overrule Hunt, the two cases are irreconcilable

because Oregon’s first-degree burglary statute also encom-

passes Oregon’s second-degree burglary statute. Thus, first

degree burglary in violation of Oregon Revised Statutes sec-

tion 164.225 does not categorically satisfy the generic defini-

tion of burglary. See Or. Rev. Stat. §§ 164.205(1)-(2),

164.225(1).

3316 UNITED STATES v. MAYER

[15] As discussed, the ACCA enumerates four violent felo-

nies as predicate offenses for the fifteen year minimum sen-

tence: burglary, arson, extortion, and offenses involving the

use of explosives. See 18 U.S.C. § 924(e)(2)(B)(ii). A non-

enumerated offense, however, may categorically qualify as a

predicate violent felony under the ACCA’s “residual clause”4

if it “otherwise involves conduct that presents a serious poten-

tial risk of physical injury to another,” and is similar to an

enumerated predicate felony. Id.; see Begay, 128 S. Ct. at

1585-86.

We apply the categorical approach to determine whether an

offense poses a serious potential risk of physical injury. See

James v. United States, 127 S. Ct. 1586, 1593-94 (2007). Our

inquiry is not whether “every conceivable factual offense cov-

ered by a statute” presents a serious potential risk of physical

injury, but rather whether, “in the ordinary case” conduct fall-

ing within the state statute presents such a risk. Id. at 1597.

In the context of state burglary statutes, the Supreme Court

explained:

The main risk of burglary arises not from the simple

physical act of wrongfully entering onto another’s

property, but rather from the possibility of a face-to-

face confrontation between the burglar and a third

party — whether an occupant, a police officer, or a

bystander — who comes to investigate. That is, the

risk arises . . . from the possibility that an innocent

person might appear while the crime is in progress.

Id. at 1594-95.

The Supreme Court has rejected arguments that canons of

statutory construction require an interpretation of the residual

clause that only allows burglary to qualify as a violent felony

4

This circuit also refers to the “residual” clause as the “catchall” clause

or the “otherwise” clause. Jennings, 515 F.3d at 990.

UNITED STATES v. MAYER 3317

under the residual clause if it constitutes generic burglary

under the Taylor definition. In James, the Supreme Court

explained that the residual clause may “cover conduct that is

outside the strict definition of, but nevertheless similar to,

generic burglary.” James, 127 S. Ct. at 1600 (citing Taylor,

495 U.S. at 600 n.9). The Supreme Court has explained that

Congress did not intend the enumerated offenses in the

ACCA to be an exhaustive list of qualifying predicate

offenses, reasoning that Congress singled out the enumerated

offenses because, despite technically being property offenses,

they often created a significant risk of bodily injury. See

James, 127 S. Ct. at 1592-93. Most recently, the Supreme

Court has explained that the four enumerated felonies in

§ 924(e)(2)(B)(ii) “illustrate the kinds of crimes that fall

within the [ACCA’s] scope.” Begay, 128 S. Ct. at 1585.

Although the ACCA does not cover “every crime that pre-

sents a serious potential risk of physical injury to another,” it

does cover crimes “similar” to the ACCA’s listed examples.

Id. (internal quotation marks omitted).

We previously declined to adopt an interpretation of the

residual clause under the categorical approach or the modified

categorical approach to cover offenses that were similar to an

enumerated offense, because such an interpretation would

render the ACCA’s inclusion of the enumerated offenses in

the same section to be “surplusage.” United States v. Fish,

368 F.3d 1200, 1204 (9th Cir. 2004) (noting that an interpre-

tation of “the catchall clause under the categorical approach

to cover possession of a ‘destructive device’ . . . or under the

modified categorical approach to cover possession of a ‘pipe

bomb,’ would render the provision’s specific inclusion of ‘use

of explosives’ in the same section surplusage”). Fish does not,

however, prevent us from finding that a non-enumerated

offense falls under the ACCA’s residual clause when the non-

enumerated offense “is outside the strict definition of, but

nevertheless similar to, generic burglary.” See James, 127

S. Ct. at 1600. Accordingly, we may find that Oregon’s first-

degree burglary statute falls under the ACCA’s residual

3318 UNITED STATES v. MAYER

clause if it does not implicate the statutory construction con-

cerns found in Fish. We conclude that Oregon’s first-degree

burglary statute does not implicate those concerns.

[16] Fish’s conviction for possessing a pipe bomb could not

fall under the ACCA’s residual clause, because the ACCA

explicitly prohibits “use,” but says nothing about “possession”

of explosives, and we could not square this omission with the

residual clause without making the “use” language superflu-

ous. Fish, 368 F.3d at 1204. Mayer’s conviction under Ore-

gon’s first-degree burglary statute, however, does not

implicate the same concern, and is exactly the type of crime

Congress intended to include under the ACCA. Mayer was

convicted of an offense that is very similar, though not identi-

cal, to the generic burglary offense. We do not render any part

of the ACCA superfluous by finding Oregon first-degree bur-

glary similar to generic burglary, and, therefore, consistent

with the ACCA’s residual clause.

The analysis turns on both the plain language of state stat-

utes and how state courts actually apply them. See James, 127

S. Ct. at 1594.5 Mayer’s argument that Oregon’s definition of

burglary does not categorically pose a serious potential risk of

physical injury, because a person may commit the offense in

ways that pose little or no risk of face-to-face confrontation,

is unpersuasive. A person could theoretically be convicted

under section 164.225 based on facts that seem inherently

non-confrontational, such as by entering a building that is not

adapted for overnight accommodation or business (e.g., an

5

It is not clear how narrowly Congress intended the residual clause to

be interpreted. See James, 127 S. Ct. at 1591-93 (explaining that neither

the plain language of the residual clause nor its legislative history sup-

ported a narrow interpretation); see also Taylor, 495 U.S. at 588-90, 596-

99 (explaining that, in enacting the ACCA, Congress was concerned with

offenses that created an inherent potential for harm to people). But cf.

Begay, 128 S. Ct. at 1586 (explaining that Congress did not intend the

residual clause to cover every offense that involved a substantial risk of

physical force against the person or property of another).

UNITED STATES v. MAYER 3319

abandoned structure), while in possession of a burglary tool

or theft device. See State v. Warner, 298 Or. 640 (1985) (first-

degree burglary conviction for breaking into a locked barn

with a metal signpost was reversed on the ground that the

signpost was not a “burglary tool or theft device”). It is

unlikely, under those facts, that the burglar would have a face-

to-face confrontation with an occupant of the building, since

there are no occupants. It is therefore possible to imagine a

scenario in which a violation of Oregon Revised Statutes sec-

tion 164.225 does not pose a realistic risk of confrontation or

injury, as it is in all burglary cases.

[17] The Supreme Court, however, has made it clear that

the risk of face-to-face confrontation stems not only from

encountering the occupant of a building, but also from — for

example — a police officer or bystander who comes to inves-

tigate. See James, 127 S. Ct. at 1594-95. Additionally, the law

does not require “every conceivable factual offense covered

by a statute” to present a serious potential risk of physical

injury. Id. at 1597. Most of the cases applying Oregon

Revised Statutes section 164.225 involve entries into places

that are occupied, or are likely to be occupied, by people. See,

e.g., State v. Kautz, 39 P.3d 937 (Or. Ct. App. 2002) (entry

into workshop located near victims’ home); State v. Sigman,

919 P.2d 45 (Or. Ct. App. 1996) (entry into occupied motor

home); State v. McDonald, 712 P.2d 163 (Or. Ct. App. 1986)

(entry into a travel trailer parked in the owner’s driveway);

State v. Spencer, 545 P.2d 611 (Or. Ct. App. 1976) (entry into

a fishing vessel; defendant conceded that the vessel was a dwell-

ing).6 The risk of a physical confrontation resulting from a

burglar’s entry in these cases is comparable to that posed by

6

There is, however, no case law narrowing the statute to require entry

into a place likely to be occupied by a person. Cf. James, 127 S. Ct. at

1594 (concluding that although the statutory language of Florida’s

attempted burglary statute was broad, the Florida courts had considerably

narrowed it to require an overt act, rather than merely preparatory activity

that posed no real danger of harm to others).

3320 UNITED STATES v. MAYER

a burglar’s entry into a generic “building or structure.” See

James, 127 S. Ct. at 1594-95. A burglar’s entry also typically

involves, much like generic burglary, the kind of “purposeful,

violent, and aggressive conduct” that makes it more likely that

the “offender, later possessing a gun, will use the gun deliber-

ately to harm a victim.” Begay, 128 S. Ct. at 1586.

[18] Under Oregon Revised Statutes section 164.235(2), a

“burglary tool or theft device” is by definition a very danger-

ous object.7 Therefore, even if there is a reduced risk of physi-

cal confrontation (e.g., because the building is abandoned), if

a confrontation does occur then there is a serious potential

risk that it will result in physical injury to another. See United

States v. Rendon-Duarte, 490 F.3d 1142, 1147 (9th Cir. 2007)

(explaining that “conduct involving a dangerous instrument

create[s] significant risks of bodily injury or confrontation

that might result in bodily injury” (brackets in original) (inter-

nal quotation marks omitted)).

For these reasons, the district court did not err by determin-

ing that first-degree burglary under Oregon Revised Statutes

section 164.225 is categorically a “violent felony” under the

ACCA’s residual clause.8 Although our interpretation of the

7

Oregon Revised Statutes section 164.235(2) defines a “burglary tool or

theft device” as “an acetylene torch, electric arc, burning bar, thermal

lance, oxygen lance or other similar device capable of burning through

steel, concrete or other solid material, or nitroglycerine, dynamite, gun-

powder or any other explosive, tool, instrument or other article adapted or

designed for committing or facilitating a forcible entry into premises or

theft by a physical taking”.

8

The district court did not rule on whether Mayer’s first-degree burglary

conviction was generic burglary under the modified categorical approach.

We generally adopt a modified categorical approach once a determination

has been made that an offense does not categorically qualify as a crime of

violence. See Shepard v. United States, 544 U.S. 13, 26 (2005). We then

expand the inquiry to include “the terms of the charging document, the

terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the

UNITED STATES v. MAYER 3321

residual clause encompasses state statutes that define burglary

more broadly than generic burglary, we do not intend to sub-

sume offenses in which there is little risk of physical injury.

The Supreme Court limited the scope of the residual clause to

encompass only those felonies that — in addition to present-

ing a serious potential risk of physical injury — are similar to

the four enumerated felonies and that involve the “deliberate

kind of behavior associated with violent criminal use of fire-

arms.” Begay, 128 S. Ct. at 1587.

[19] We therefore hold that first-degree burglary under

Oregon Revised Statutes section 164.225 categorically poses

a serious potential risk of physical injury to people present in

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

immediate area of a building if a confrontation does occur.

The risk of potential injury due to a face-to-face confrontation

between the burglar and a third party is not lessened simply

because, under Oregon law, the dwelling does not have to be

a generic “building” or “structure,” or because the offense

does not necessarily involve fleeing the scene of a burglary.

“[I]n the ordinary case,” a violation of Oregon Revised Stat-

utes section 164.225 will involve conduct that presents a seri-

ous potential risk of physical injury to another, in a manner

similar to generic burglary. James, 127 S. Ct. at 1597; see

Begay, 128 S. Ct. at 1584-85. Interpreting the ACCA’s resid-

defendant, or to some comparable judicial record of this information.” Id.

We have previously concluded “that generally the modified categorical

approach may be applied in determining whether a conviction qualifies as

a violent felony under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause . . . [even

though] we have expressed doubt [in the past] as to whether the modified

categorical approach applies to the catchall clause in U.S.S.G. § 4B1.2(a),

as well as in § 924(e)(2)(B)(ii).” Jennings, 515 F.3d at 990. Although we

may affirm on any ground supported by the record, see United States v.

Cortez-Arias, 403 F.3d 1111, 1114 n.7 (9th Cir. 2005), we find that an

analysis of the modified categorical approach is unnecessary due to our

determination that the offense categorically qualifies as a crime of vio-

lence under the residual clause.

3322 UNITED STATES v. MAYER

ual clause to include Oregon Revised Statutes section 164.225

does not therefore extend its coverage in an unlimited manner.

B. Mayer’s Prior Drug Convictions

The ACCA defines a “serious drug offense” as “an offense

under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a con-

trolled substance . . . for which a maximum term of imprison-

ment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii) (emphasis added). Mayer contends that his

two prior Oregon convictions for unlawful manufacture and

delivery of marijuana were not “serious drug offenses” under

the ACCA, because Oregon law does not “prescribe” a maxi-

mum term of imprisonment of ten years or more for those

offenses. Mayer reasons that, although the statutory maximum

sentence for these offenses is more than ten years,9 the maxi-

mum sentence that may actually be imposed under Oregon’s

sentencing guidelines is only 90 months.

[20] Mayer’s argument is foreclosed by United States v.

Parry, 479 F.3d 722 (9th Cir. 2007).10 In Parry, we held that,

for purposes of determining whether a prior drug conviction

is a “serious drug offense” under the ACCA, the maximum

sentence “prescribed by law” is that which is set forth by the

statute of conviction, and not by the state sentencing guide-

lines. Id. at 724-26; see also United States v. Murillo, 422

9

Under Oregon Revised Statutes sections 161.605(1), 475.840(1)(a),

and 475.856(2), the statutory maximum sentence for manufacture or deliv-

ery of marijuana is 20 years. Although Mayer’s indictments for these

offenses refer to violations of Oregon Revised Statutes section 475.992,

that provision was subsequently renumbered.

10

The defendant in Parry argued, similar to Mayer in this case, that

“under the Oregon Sentencing Guidelines, no defendant could ever be sen-

tenced to 10 years in prison for delivery or manufacture of a Schedule II

controlled substance . . . regardless of his criminal history. Instead, the

maximum sentence for that crime under the guidelines is 90 months.” 479

F.3d at 724.

UNITED STATES v. MAYER 3323

F.3d 1152, 1155 (9th Cir. 2005) (holding that, for purposes of

determining whether a state criminal conviction is a crime

punishable by a term exceeding one year under 18 U.S.C.

§ 922(g)(1), the maximum sentence is defined by the state

criminal statute, not the maximum possible sentence that

could have been imposed on the defendant under the state’s

sentencing guidelines). We expressly rejected the statutory

construction argument that Mayer now raises, explaining:

It is true that 18 U.S.C. § 922(g) requires that the

predicate offense be “punishable by imprisonment

for a term exceeding one year,” while ACCA

requires, for a “serious drug offense,” a “maximum

term of imprisonment of ten years or more” as “pre-

scribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii).

Although the phrasing differs slightly, we conclude

that neither formulation suggests that we look to sen-

tencing guidelines to the exclusion of the statutes. If

anything, “punishable” would appear to point more

specifically to time spent in prison, while “pre-

scribed by law” would appear to point more to the

statute. If the former phrase requires that we use the

statutory maximum, a fortiori, the latter phrase does

too.

Parry, 479 F.3d at 726.

Although Mayer contends that Parry was wrongly decided,

it is clear that Parry is controlling precedent in our circuit.

See, e.g., United States v. Crampton, 519 F.3d 893, 899 (9th

Cir. 2008) (holding that Parry foreclosed the defendant’s

argument that the maximum sentence “prescribed by law”

was the lower maximum sentence under Oregon’s sentencing

guidelines); United States v. Ankeny, 502 F.3d 829, 839 (9th

Cir. 2007) (same). Even if we agreed with Mayer that Parry

was wrongly decided, a three-judge panel may not overrule

the decision of another panel in the absence of intervening

3324 UNITED STATES v. MAYER

Supreme Court case law that is “clearly irreconcilable.” Mil-

ler, 335 F.3d at 900.

[21] Because Oregon law prescribes a maximum sentence

of ten years or more for Mayer’s prior convictions for unlaw-

ful manufacture and delivery of marijuana, the district court

did not err by finding that those convictions were “serious

drug offenses” under the ACCA. See 18 U.S.C.

§ 924(e)(2)(A)(ii). Accordingly, the district court correctly

imposed the ACCA’s mandatory fifteen year sentence,

because Mayer was a felon having three or more previous

convictions for “a violent felony or a serious drug offense.”

See Jennings, 515 F.3d at 987.

CONCLUSION

We affirm the district court’s denial of Mayer’s motion to

suppress. We also affirm the district court’s imposition of the

ACCA’s mandatory fifteen year minimum sentence.

AFFIRMED.