Submitted May 13, 2014, [*]
Appeal from the United States District Court for the District of Oregon. D.C. No. 1:11-cr-30051-PA-1. Owen M. Panner, Senior District Judge, Presiding.
The panel affirmed the district court's imposition of a mandatory minimum sentence of 180 months' imprisonment pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA).
The district court determined that six of the defendant's past convictions -- three convictions for fleeing or attempting to elude a police officer in violation of Oregon Revised Statutes § 811.540(1), two convictions for first-degree burglary in violation of Oregon Revised Statutes § 164.225, and one conviction for conspiracy to commit delivery of a controlled substance in violation of Oregon Revised Statutes § § 161.450 and 475.752 -- qualify as predicate offenses under ACCA.
The defendant conceded that his drug offense qualifies as an ACCA predicate offense.
The panel held that Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), did not undermine United States v. Snyder, 643 F.3d 694 (9th Cir. 2011), which held that an Oregon conviction for fleeing or attempting to elude a police officer qualifies as a violent felony under ACCA's residual clause. Answering a question this court had no reason to ask in Snyder, the panel held that because § 811.540(1) contains alternative elements for fleeing from a police officer in a vehicle and fleeing on foot, the statute is divisible, and the panel could review the charging documents to confirm that the defendant was convicted for vehicular flight, which constitutes a " violent felony" under ACCA's residual clause. Observing that each indictment establishes that the defendant was convicted of vehicular flight pursuant to § 811.540(1)(b)(A), the panel concluded that all three of the defendant's convictions for fleeing or attempting to elude police officers qualify as violent felonies under ACCA's residual clause.
The panel rejected the defendant's contention that ACCA's residual clause is unconstitutionally vague.
The panel likewise held that Descamps did not undermine United States v. Mayer, 560 F.3d 948 (9th Cir. 2009), which held that a conviction for first-degree burglary in violation of § 164.225 qualifies as a violent felony under ACCA's residual clause. The panel concluded that Mayer therefore applies to the defendant's first-degree burglary convictions, which means those convictions qualify as predicate offenses under ACCA.
Brian C. Butler (argued), Assistant Federal Public Defender, Federal Public Defender's Office, Medford, Oregon, for Defendant-Appellant.
Douglas W. Fong (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; and S. Amanda Marshall, United States Attorney, Office of the United States Attorney, Medford, Oregon, for Plaintiff-Appellee.
Before: Alfred T. Goodwin, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.
N.R. SMITH, Circuit Judge.