United States v. Donnie Walton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50358

Plaintiff-Appellee,

D.C. No.

v. 2:14-cr-00537-

SVW-1

DONNIE LEE WALTON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted January 8, 2018

Pasadena, California

Filed February 1, 2018

Before: Milan D. Smith, Jr. and Michelle T. Friedland,

Circuit Judges, and Jed S. Rakoff, * Senior District Judge.

Opinion by Judge Rakoff

*

The Honorable Jed S. Rakoff, Senior United States District Judge

for the Southern District of New York, sitting by designation.

2 UNITED STATES V. WALTON

SUMMARY **

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which the district court imposed an

enhancement under the Armed Career Criminal Act,

18 U.S.C. § 924(e)(1) (ACCA), on the ground that the

defendant had four prior convictions for violent felonies.

The panel held that first-degree robbery under Alabama

Criminal Code § 13A-8-41 is not a violent felony under

ACCA because the force required to support a conviction for

third-degree robbery under Alabama law is not sufficiently

violent to render that crime a violent felony under ACCA,

and the Government has waived any argument that the

statute is divisible.

The panel held that United States v. Dixon, 805 F.3d

1193 (9th Cir. 2015) (holding that California robbery is not

a violent felony under ACCA’s force clause because it can

be committed where force is only negligently used and

because the statute is indivisible), is dispositive as far as

defendant’s conviction for second-degree robbery under

Calif. Penal Code § 211 is concerned.

Because two of the defendant’s four prior convictions are

not violent felonies under ACCA’s force clause, the panel

concluded that the defendant should not have been subject to

ACCA’s fifteen-year mandatory minimum sentence, which

**

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. WALTON 3

requires at least three previous convictions of violent

felonies.

COUNSEL

Jonathan D. Libby (argued), Deputy Federal Public

Defender; Hilary L. Potashner, Federal Public Defender;

Office of the Federal Public Defender, Los Angeles,

California; for Defendant-Appellant.

L. Ashley Aull (argued), Chief; Michael Anthony Brown,

Assistant United States Attorney; Sandra R. Brown, Acting

United States Attorney; Criminal Appeals Section, United

States Attorney’s Office, Los Angeles, California; for

Plaintiff-Appellee.

OPINION

RAKOFF, Senior District Judge:

Defendant-Appellant Donnie Lee Walton challenges the

district court’s imposition of a sentencing enhancement

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e)(1). ACCA imposes a mandatory minimum sentence

of fifteen years of imprisonment on a person who both

violates Section 922(g) and has three previous convictions

for either a “serious drug offense,” or a “violent felony,” or

some combination of the two. Id.

When Walton pleaded guilty to being a felon in

possession of a firearm and ammunition in violation of

18 U.S.C. § 922(g), he had previously been convicted of

(1) assault with a deadly weapon, in violation of California

4 UNITED STATES V. WALTON

Penal Code § 245(a)(1); (2) second-degree robbery, in

violation of California Penal Code § 211; (3) first-degree

robbery in violation of Alabama Criminal Code § 13A-8-41;

and (4) attempted murder, in violation of Alabama Criminal

Code §§ 13A-4-2 and 13A-6-2. The sentencing court found

that all four of these convictions were for violent felonies

under ACCA.

Walton argues on appeal that the district court erred as

to each of these previous convictions. We hold that neither

first-degree robbery under Alabama law nor second-degree

robbery under California law is a violent felony under

ACCA. Since at least two of his four prior non-drug

convictions did not qualify as violent felonies, Walton

should not have been subject to ACCA’s mandatory

sentencing provision. It is therefore unnecessary to decide

whether Walton’s attempted murder and assault with a

deadly weapon convictions are violent felonies. We reverse

and remand.

I.

This court generally reviews de novo whether a state

conviction qualifies under ACCA’s definition of “violent

felony.” United States v. Dixon, 805 F.3d 1193, 1195 (9th

Cir. 2015). The Government nevertheless argues for plain

error review because Walton failed to raise the claims

advanced in his opening brief before the district court. This

is incorrect. Walton argued below that he did not have the

required number of violent felonies necessary for

enhancement under ACCA, and while he did not make the

precise arguments that he makes on this appeal, “it is claims

that are deemed waived or forfeited, not arguments.” United

States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.

2004). Moreover, we are not limited to plain error review

when, as here, “we are presented with a question that is

UNITED STATES V. WALTON 5

purely one of law and where the opposing party will suffer

no prejudice as a result of the failure to raise the issue in the

trial court.” United States v. Evans-Martinez, 611 F.3d 635,

642 (9th Cir. 2010) (quoting United States v. Saavedra-

Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)). The

Government expressly argued in its brief before the

sentencing court that Walton’s prior convictions were all

violent felonies under ACCA, and its arguments on this

purely legal question have been squarely presented at length

before this court. We therefore review de novo whether

Walton’s prior convictions qualify as violent felonies under

ACCA.

II.

ACCA defines a “violent felony” as any crime

punishable by imprisonment for a term exceeding one 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 [(iii)] otherwise involves conduct that

presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B). These three clauses are

known as the “force clause,” the “enumerated clause,” and

the “residual clause,” respectively. The Government does

not argue that Walton’s convictions qualify under the

enumerated clause, and the Supreme Court has held that the

residual clause is unconstitutionally vague. Johnson v.

United States, 135 S. Ct. 2551, 2563 (2015) (“Johnson II”).

Thus only the force clause is at issue.

Counterintuitive though it may seem, to determine

whether a defendant’s conviction under a state criminal

statute qualifies as a violent felony under the force clause,

we do not look to the underlying facts of the defendant’s

actual conviction. See Mathis v. United States, 136 S. Ct.

6 UNITED STATES V. WALTON

2243, 2251 (2016). Rather, established Supreme Court

precedent requires that we employ a so-called “categorical”

approach, looking “only to the fact of conviction and the

statutory definition of the prior offense” to determine

whether the state statute under which the defendant was

convicted criminalizes only conduct that is a violent felony

under ACCA. Taylor v. United States, 495 U.S. 575, 602

(1990); see also United States v. Grisel, 488 F.3d 844, 847

(9th Cir. 2007) (en banc). Under this approach, “even the

least egregious conduct the statute covers must qualify” as a

violent felony for a defendant’s conviction under that statute

to count toward ACCA’s mandatory sentence. United States

v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006). 1 “State

cases that examine the outer contours of the conduct

criminalized by the state statute are particularly important

because ‘we must presume that the conviction rested upon

nothing more than the least of the acts criminalized’” by that

statute. United States v. Strickland, 860 F.3d 1224, 1226–27

(9th Cir. 2017) (alterations omitted) (quoting Moncrieffe v.

1

Lopez-Solis dealt with interpretation of a sentencing enhancement

under § 2L1.2(b)(3)(E) of the United States Sentencing Guidelines. Id.

at 1203. The commentary to that provision defines a “crime of violence”

as any crime “that has as an element the use, attempted use, or threatened

use of physical force against the person of another.” U.S. Sentencing

Guidelines Manual § 2L1.2, cmt. n.2 (U.S. Sentencing Comm’n 2014).

Similarly, both 18 U.S.C. § 16(a) and the career offender sentencing

guideline, U.S.S.G. § 4B1.2(a)(1), define a “crime of violence” to

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

threatened use of physical force” against the person of another. Cases

interpreting these similar provisions are relevant to interpretation of

ACCA’s force clause. See United States v. Molinar, 876 F.3d 953, 956

n.3 (9th Cir. 2017) (“[T]he force clauses in the ACCA and the Guidelines

remain identical.”); see also United States v. Benally, 843 F.3d 350,

354 (9th Cir. 2016) (“[B]ecause the wording of [18 U.S.C. § 924(c)(3)

and 18 U.S.C. § 16] is virtually identical, we interpret their plain

language in the same manner.” (footnote omitted)).

UNITED STATES V. WALTON 7

Holder, 569 U.S. 184, 190–91 (2013)). If a state’s highest

court has not ruled on the level of force required to support

a conviction, we are bound by reasoned intermediate court

rulings. See Poublon v. C.H. Robinson Co., 846 F.3d 1251,

1266 (9th Cir. 2017) (citing West v. Am. Tel. & Tel. Co.,

311 U.S. 223, 236 (1940)).

If a statute is “divisible” – that is, if it “lists alternative

sets of elements, in essence several different crimes” – we

apply the “modified categorical approach,” under which we

“consult a limited class of documents, such as indictments

and jury instructions, to determine which alternative formed

the basis of the defendant’s prior conviction,” and then apply

the categorical approach to the subdivision under which the

defendant was convicted. United States v. Werle, 815 F.3d

614, 619 (9th Cir. 2016) (quoting Descamps v. United States,

570 U.S. 254, 257 (2013)). If the government fails to

produce those documents, courts determine whether the

“least of [the] acts” described in the statute can serve as a

predicate offense. Johnson v. United States (“Johnson I”),

559 U.S. 133, 137 (2010).

A.

We turn first to evaluating whether Walton’s conviction

for first-degree robbery under Alabama law qualifies as a

violent felony under ACCA. A person commits first-degree

robbery in Alabama if he commits third-degree robbery and

“[i]s armed with a deadly weapon or dangerous instrument”

or “[c]auses serious physical injury to another.” Ala. Code

§ 13A-8-41(a). In turn, a person commits third-degree

robbery in Alabama if, “in the course of committing a theft,”

she either

(1) [u]ses force against the person of the

owner or any person present with intent to

8 UNITED STATES V. WALTON

overcome his physical resistance or physical

power of resistance; or (2) [t]hreatens the

imminent use of force against the person of

the owner or any person present with intent

to compel acquiescence to the taking of or

escaping with the property.

Ala. Code § 13A-8-43(a). An actual taking of property is not

required. Ex parte Verzone, 868 So. 2d 399, 402 (Ala. 2003).

The Government does not contend that first-degree

robbery’s aggravating factors independently render it a

violent felony under ACCA, and for good reason. Third-

degree robbery becomes first-degree if the perpetrator

merely “[i]s armed with a deadly weapon.” Ala. Code § 13A-

8-41(a). The defendant need not ever use or threaten to use

that weapon. See, e.g., Saffold v. State, 951 So. 2d 777, 778–

81 (Ala. Crim. App. 2006) (affirming conviction of first-

degree robbery where police discovered defendant had a gun

hidden in his trench coat but it was never mentioned or seen

during the robbery). Merely possessing a gun, even in the

course of a robbery, does not involve the use, attempted use,

or threatened use of force. See United States v. Molinar,

876 F.3d 953, 957 (9th Cir. 2017); United States v. Parnell,

818 F.3d 974, 980 (9th Cir. 2016) (“The mere fact an

individual is armed, however, does not mean he or she has

used the weapon, or threatened to use it, in any way.”). First-

degree robbery, then, is only a violent felony under ACCA’s

force clause if third-degree robbery is. This question in turn

depends on whether the force required for third-degree

robbery under Alabama law is sufficient to qualify as a

violent crime under ACCA.

In Johnson I, the United States Supreme Court clarified

that the “physical force” required under ACCA’s force

UNITED STATES V. WALTON 9

clause must be “violent force” or “force capable of causing

physical pain or injury to another person.” Johnson I,

559 U.S. at 140. The mere potential for some trivial pain or

slight injury will not suffice. Rather, “violent” force must be

“substantial” and “strong.” Id. In support of this holding, the

Court in Johnson I favorably quoted the definition of

“violent felony” from Black’s Law Dictionary: “a crime

characterized by extreme physical force, such as murder,

forcible rape, and assault and battery with a dangerous

weapon.” Id. at 140–41 (alteration omitted).

Thereafter, the Supreme Court, in United States v.

Castleman, 134 S. Ct. 1405 (2014), further explained the

need for substantial force for a conviction to qualify as a

violent felony under ACCA’s force clause. See id. at 1411–

12. In that case, the Court distinguished “[m]inor uses of

force” that suffice for a “misdemeanor crime of domestic

violence,” such as squeezing an arm hard enough to leave a

bruise, from the “substantial degree of force” required for

violent felonies under ACCA. Id. As the Court noted, minor

uses of force are insufficient both because they are not

“violent” in the generic sense and because it would be

anomalous “to apply the Armed Career Criminal Act to

‘crimes which, though dangerous, are not typically

committed by those whom one normally labels armed career

criminals.’” Id. at 1412 (quoting Begay v. United States,

553 U.S. 137, 146 (2008), abrogated on other grounds by

Johnson II, 135 S. Ct at 2563).

Alabama courts have affirmed robbery convictions

under the “use of force prong” where the “force” used was

not violent under Johnson I. For example, the victim in

Jackson v. State, 969 So. 2d 930 (Ala. Crim. App. 2007)

testified that “the appellant rushed toward her, tugged her

purse a couple of times, yanked her purse off of her arm, and

10 UNITED STATES V. WALTON

ran away.” Id. at 931. The Court of Criminal Appeals held

this “clearly supported a conviction” of third-degree

robbery. Id. at 933. Similarly, the Court of Criminal Appeals

affirmed another conviction where the only force used was a

push that the victim testified was “just enough to knock me

off balance. You know, get me out of the way.” Wright v.

State, 487 So. 2d 962, 964 (Ala. Crim. App. 1985). When

asked, “How far over did he knock you?” the victim replied,

“Just over the counter. I caught myself on the counter.” Id.

at 965. The Alabama court held that this was sufficient

evidence of force to satisfy Alabama’s third-degree robbery

statute. Id. And in another case, the Alabama Court of

Criminal Appeals affirmed a conviction for second-degree

robbery – which, like first-degree robbery, also requires the

commission of third-degree robbery – finding in relevant

part that the crime “constituted robbery in the third degree”

based on the victim’s testimony that “the defendant pushed

or shoved him ‘back into a corner’ to effect an immediate

escape.” Wright v. State, 432 So. 2d 510, 512 (Ala. Crim.

App. 1983).

We have previously held that several other crimes are not

violent felonies under the force clauses of ACCA and the

Sentencing Guidelines because they can be committed by

using minimal levels of force. For example, in Molinar, we

held that Arizona armed robbery was not a crime of violence

under the force clause of the Sentencing Guidelines in light

of an Arizona Supreme Court case holding that, although

snatching an article from a person’s hand is insufficient, “‘if

the article is so attached to the person or clothes as to create

resistance however slight,’ the offense becomes robbery.”

Molinar, 876 F.3d at 957 (quoting Lear v. State, 6 P.2d 426,

427 (1931)); see also United States v. Jones, 877 F.3d 884,

887–88 (9th Cir. 2017) (applying Molinar to Arizona armed

robbery under ACCA).

UNITED STATES V. WALTON 11

Several other circuits have also held that robbery statutes

that can be violated by such minor uses of force are not

violent under ACCA or similar statutes. See, e.g., United

States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016) (Missouri

robbery not a violent crime because it had been committed

by a defendant who “bumped” the victim’s shoulder and

“yanked” her purse away); United States v. Winston,

850 F.3d 677, 685 (4th Cir. 2017) (Virginia robbery not a

violent felony because a conviction was affirmed when “the

victim was carrying her purse tucked under her arm when

the defendant approached the victim from behind, tapped her

on the shoulder, and jerked her around by pulling her

shoulder, took her purse, and ran” (quoting Jones v.

Commonwealth, 496 S.E.2d 668, 669 (Va. Ct. App. 1998))).

This is plainly analogous to the minor force found sufficient

under the Alabama robbery statute in the Jackson case.

We have also held that resisting arrest under Arizona law

is not a crime of violence under the Sentencing Guidelines

because the Arizona Court of Appeals has affirmed the

conviction of a defendant who, while trying to keep from

being handcuffed, “kicked the officers trying to control her,”

causing a “minor scuffle.” United States v. Flores-Cordero,

723 F.3d 1085, 1087–88 (9th Cir. 2013) (quoting State v.

Lee, 176 P.3d 712, 713 (Ariz. Ct. App. 2008)), as amended

(Oct. 3, 2013); see also United States v. Lee, 701 F. App’x

697, 701 (10th Cir. 2017) (Florida resisting arrest offense not

a violent felony where it had been violated by “wiggling and

struggling” and “scuffling” (quoting State v. Green,

400 So.2d 1322, 1323–24 (Fla. Dist. Ct. App. 1981)).

Shoves that merely cause others to briefly lose their balance

or step backward, as in the two Wright cases from Alabama

cited above, are no more violent than these minor scuffles.

The force required to support a conviction for third-degree

robbery in Alabama is therefore not sufficiently violent to

12 UNITED STATES V. WALTON

render that crime a violent felony under ACCA. 2 Because

the Government has not argued that the statute is divisible,

any such argument is waived. See Parnell, 818 F.3d at 981

(declining to conduct a modified categorical analysis

because “the government [did] not argue [that the

defendant’s] conviction [fell] under § 924(e)(2)(B)(ii) or that

the modified categorical approach applie[d]”). Accordingly,

we conclude that Walton’s conviction for Alabama armed

robbery cannot support an enhancement under ACCA.

B.

Turning to Walton’s conviction for second-degree

robbery under California law, California’s robbery statute

prohibits “the felonious taking of personal property in the

possession of another, from his person or immediate

presence, and against his will, accomplished by means of

2

Although several district courts in the Eleventh Circuit have held

that Alabama robbery is a crime of violence under ACCA or similar

statutes, none of these opinions actually engaged in the analysis required

under Johnson I. See United States v. Freeman, No. 11-0303-WS, 2016

WL 4394172, at *2 (S.D. Ala. Aug. 15, 2016) (summarily holding that

second-degree robbery “qualifies as a violent felony under the ACCA’s

elements clause because it has as an element the use, attempted use, or

threatened use of physical force against the person of another” and citing

pre-Johnson I precedent); United States v. Dees, No. 05-0225-WS-B,

2014 WL 2885481, *2 (S.D. Ala. June 25, 2014) (same); Levert v. United

States, No. 2:13-CR-119-VEH, 2016 WL 4070147, at *4 (N.D. Ala. July

29, 2016) (addressing only the argument that the residual clause in the

Sentencing Guidelines is not void for vagueness). In one case, the court

even looked to the specific facts of the underlying conviction rather than

employing the required categorical approach. United States v. Giles,

No. 3:06CR442/LAC/EMT, 2016 WL 4392843, at *2 (N.D. Fla.

July 29, 2016), report and recommendation adopted, No.

3:06CR442/LAC/EMT, 2016 WL 4385852 (N.D. Fla. Aug. 11, 2016)

(“The PSR reflects that the robberies took place with a handgun and a

pistol.” (citations omitted)). These cases are therefore not persuasive.

UNITED STATES V. WALTON 13

force or fear.” Cal. Penal Code § 211. At the time of

Walton’s sentencing, we had held that California robbery

was a violent felony under ACCA’s residual clause. See

United States v. Prince, 772 F.3d 1173, 1176–77 (9th Cir.

2014). However, after the Supreme Court struck down the

residual clause in Johnson II, we revisited that decision and

held that California robbery is not a violent felony under

ACCA’s force clause because it can be committed where

force is only negligently used and because the statute is

indivisible. See Dixon, 805 F.3d at 1197–98. The Dixon

court relied on People v. Anderson, in which the California

Supreme Court affirmed the conviction of a man who, while

stealing a car, accidentally ran over its owner as he sped

away. 252 P.3d 968, 972 (Cal. 2011) (“It was robbery even

if, as he claims, he did not intend to strike [the owner], but

did so accidentally.”).

Dixon is dispositive as far as Walton’s conviction for

second-degree robbery under California law is concerned.

Indeed, the Government offers no counter-argument to

Dixon’s application here beyond simply citing to two cases

that predate Johnson I and so applied the incorrect analysis

and that, moreover, involved different statutes. See Nieves-

Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010); United

States v. David H., 29 F.3d 489 (9th Cir. 1994). We therefore

hold that Walton’s conviction for second-degree robbery

under California law, like his conviction for first-degree

robbery under Alabama law, does not qualify as a “violent

felony” under ACCA’s force clause.

III.

Because two of Walton’s four prior convictions are not

violent felonies under ACCA’s force clause, Walton should

not have been subject to ACCA’s fifteen-year mandatory

minimum sentence, which requires at least three previous

14 UNITED STATES V. WALTON

convictions of violent felonies. 18 U.S.C. § 924(e)(1).

Accordingly, Walton’s sentence must be vacated, and we

need not reach his arguments regarding his convictions for

attempted murder and assault with a deadly weapon.

The sentence is hereby VACATED and the case is

remanded to the district court for resentencing.