Argued and Submitted: June 13, 2013, San Francisco, California.
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:10-cr-00482-GMN-PAL-1. Gloria M. Navarro, District Judge, Presiding.
James A. Oronoz (argued) and Lucas J. Gaffney, Oronoz & Ericsson, L.L.C., Las Vegas, Nevada, for Defendant-Appellant.
Phillip N. Smith, Jr. (argued), Assistant United States Attorney, Daniel G. Bogden, United States Attorney, Robert L. Ellman, Appellate Chief, United States Attorney's Office for the District of Nevada, Las Vegas, Nevada, for Plaintiff-Appellee.
Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Kimba M. Wood, Senior District Judge.[*] BYBEE, Circuit Judge, with whom TASHIMA, Circuit Judge, and WOOD, Senior District Judge, join, concurring.
Tavares Chandler pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Chandler had been convicted of three " violent felonies," as defined by the Armed Career Criminal Act (ACCA), and sentenced Chandler to a term of 235 months' imprisonment. Chandler does not contest his extensive criminal history, but he contends that the district court erred in concluding that he had been convicted of three violent felonies. Because we conclude that all three prior convictions are violent felonies under the ACCA, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Chandler was indicted in 2010 for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Chandler pleaded guilty to the indictment without the benefit of a plea agreement. Chandler had previously been convicted in Nevada state court of the offenses of (1) second degree kidnapping, Nev. Rev. Stat. § § 200.310, 200.330; (2) coercion, Nev. Rev. Stat. § 207.190; and (3) conspiracy to commit robbery, Nev. Rev. Stat. § § 199.480, 200.380. The government sought an increased penalty under the ACCA, arguing that Chandler's Nevada state convictions qualified as violent felonies. See 18 U.S.C. § 924(e)(1). Chandler objected, arguing that neither his conspiracy conviction nor his kidnapping conviction was a violent
felony as defined by the ACCA. He did not dispute that his conviction for coercion qualified as a violent felony. Over Chandler's objection, the district court determined that Chandler's three Nevada state convictions were all violent felonies under the ACCA and sentenced Chandler to 235-months' imprisonment. Chandler timely appealed.
" We 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).
Under 18 U.S.C. § 924(e)(1), any " person who violates section 922(g) of this title and has three previous convictions... for a violent felony or a serious drug offense, or both,... shall be... imprisoned not less than fifteen years." For purposes of this subsection of the ACCA, a violent felony is " any crime punishable by imprisonment for a term exceeding one year... [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).
Notably, a violent felony as defined in the ACCA is nearly identical to a " crime of violence" as defined in the Sentencing Guidelines' Career Offender enhancement. Compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines Manual § 4B1.2(a) (providing that a crime of violence is (1) " any offense... punishable by imprisonment for a term exceeding one year, that... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another" ). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013); United States v. Crews, 621 F.3d 849, 852 n.4 (9th Cir. 2010); United States v. Melton, 344 F.3d 1021, 1027 (9th Cir. 2003).
In United States v. Park, 649 F.3d 1175 (9th Cir. 2011), we established a framework for analyzing whether a conviction under state law is a conviction for a crime of violence. " First, the 'conduct encompassed by the elements of the offense, in the ordinary case,' must 'present[ ] a serious potential risk of physical injury to another.'" Id. at 1177-78 (alteration in original) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). " Second, the state offense must be 'roughly similar, in kind as well as in degree of risk posed' to those offenses enumerated at the beginning of the residual clause--burglary of a dwelling, arson, extortion, and crimes involving explosives." Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). As we recently observed:
The inquiry under Park 's first prong is straightforward. But the second requirement--whether the state offense is " 'roughly similar, in kind as well as in degree of risk posed' to those offenses enumerated at the beginning of the residual clause" --is more complicated, and
must be addressed in light of the Supreme Court's quartet of ACCA cases.
Spencer, 724 F.3d at 1138 (internal citation omitted) (quoting Park, 649 F.3d at 1178).
In James, the Supreme Court held that the second requirement should focus on whether the risk posed by the state offense " is comparable to that posed by its closest analog among the enumerated offenses." James, 550 U.S. at 203. In Begay, however, the Court concluded that a state conviction for driving under the influence was not categorically a violent felony under the ACCA because it did not " involve purposeful, violent, and aggressive conduct." Begay, 553 U.S. at 144-45 (internal quotation marks omitted); see also Chambers v. United States, 555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (applying Begay 's " purposeful, violent, and aggressive conduct" formula). In its most recent ACCA opinion, the Court once again focused on the level of risk posed by the state offense at issue compared with the level of risk posed by the enumerated offenses. See Sykes v. United States, 131 S.Ct. 2267, 2275, 180 L.Ed.2d 60 (2011) (" In general, levels of risk divide crimes that qualify from those that do not." ).
We concluded in Spencer that Sykes meant that Begay 's " 'purposeful, violent, and aggressive formulation' is only dispositive in cases involving a strict liability, negligence, or recklessness offense" --such as driving under the influence--and does not apply to intentional crimes. Spencer, 724 F.3d at 1139; see also Sykes, 131 S.Ct. at 2276 (" Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime." ). Many of our sister circuits have interpreted Sykes similarly. See, e.g., Harrington v. United States, 689 F.3d 124, 135 (2d Cir. 2012) (" In Sykes, the Court clarified that in cases involving intentional criminal conduct, the focus of judicial inquiry should remain on the risk assessment specified in the ACCA's text, i.e., whether the proscribed conduct presents 'a serious potential risk of physical injury to another' comparable to that posed by the enumerated offenses." (quoting 18 U.S.C. § 924(e)(2)(B)(ii))); United States v. Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (" Sykes makes clear that Begay 's 'purposeful, violent, and aggressive' analysis does not apply to offenses that are not strict liability, negligence, or recklessness crimes." ); United States v. Bartel, 698 F.3d 658, 662 (8th Cir. 2012); United States v. Meeks, 664 F.3d 1067, 1070 (6th Cir. 2012); United States v. Smith, 652 F.3d 1244, 1248 (10th Cir. 2011); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011).
Here, neither conspiracy to commit robbery nor second degree kidnapping is a strict liability crime or offense that punishes reckless or negligent behavior. See Doyle v. State, 112 Nev. 879, 921 P.2d 901, 911 (Nev. 1996) (overruled on other grounds by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (Nev. 2004)) ( " A person who knowingly does any act to further the object of a conspiracy, or otherwise participates therein, is criminally liable as a conspirator; however, '[m]ere knowledge or approval of, or acquiescence in, the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to conspiracy.'" (alteration in original) (emphasis added) (quoting State v. Arredondo, 155 Ariz. 314, 746 P.2d 484, 487 (Ariz. 1987))); Nev. Rev. Stat. § 200.310(2) ( " A person who willfully and without authority of law seizes, inveigles, takes, carries away, or
kidnaps another person with the intent to keep the person secretly imprisoned... is guilty of kidnapping in the second degree." (emphasis added)). As a result, we apply the " closest analog test" set forth in James. See Spencer, 724 F.3d at 1140.
With this framework in mind, we turn to Chandler's prior convictions.
A. Conspiracy to Commit Robbery
We have not previously considered whether conspiracy to commit robbery is a violent felony. We have, however, determined that conspiracy to interfere with interstate commerce by robbery is a crime of violence for purposes of the firearm sentencing enhancement in 18 U.S.C. § 924(c)(1). See United States v. Mendez, 992 F.2d 1488, 1489 (9th Cir. 1993). In Mendez, we explained that a conspiracy " 'increases the chances that the planned crime will be committed" ' because a conspiracy " 'provides a focal point for collective criminal action.'" Id. at 1491 (quoting United States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985)). Due to this heightened risk of harm, a " conspiracy to commit a crime of violence is a 'crime of violence' under the substantial risk definition of § 924(c)(3)(B) or its equivalent."  Id. at 1492. In other words, " conspiracy to rob in violation of [the Hobbs Act] 'by its nature, involves a substantial risk that physical force... may be used in the course of committing the offense,'" and is thus a crime of violence. Mendez, 992 F.2d at 1491 (quoting 18 U.S.C. § 924(c)(3)(B)). Cognizant of this binding precedent, we consider whether conspiracy to commit robbery under Nevada law is
a " violent felony" as that term is defined in § 924(e)(2)(B)(ii).
1. Serious potential risk of injury
The first question under Park is whether the conduct encompassed by the elements of conspiracy to commit robbery under Nevada law ordinarily " present a serious potential risk of physical injury to another." Park, 649 F.3d at 1177-78 (quoting James, 550 U.S. at 208) (brackets in the original). Because Mendez established that conspiracy to commit robbery " categorically creates a substantial risk that physical force may be used," Mendez, 992 F.2d at 1492, we must answer in the affirmative.
Admittedly, Mendez differs from this case in two respects. First, Mendez involved conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, whereas here, Chandler was convicted of conspiracy to commit robbery in violation of Nev. Rev. Stat. § § 199.480, 200.380. The Hobbs Act penalizes " [w]hoever in any way or degree obstructs, delays or affects commerce... by robbery... or conspires so to do." 18 U.S.C. § 1951(a). The Act then defines robbery as " the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence." 18 U.S.C. § 1951(b)(1). And conspiracy under federal law occurs " [i]f two or more persons conspire [ ] to commit any offense against the United ...