U.S v. Cisneros
United States Court of Appeals for the Ninth Circuit
2014 WL 4067214
Decided: August 19, 2014
Armed Career Criminal Act: Sentencing Enhancement Include Attempting To Flee A Police Officer
Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney
Issue: Whether Defendant’s prior convictions for fleeing or attempting to elude a police officer qualify as violent felonies under Armed Career Criminal Act (ACCA) residual clause.
Summary: Defendant pleaded guilty to being a felon in possession of a firearm. The Government sought to enhance Defendant’s sentence under the Armed Career Criminal Act (ACCA), based on six of Defendant’s prior convictions; three convictions for fleeing or attempting to elude a police officer, two counts for first degree burglary, and one conviction for conspiracy to deliver a controlled substance. The District Court held that all six convictions qualified as ACCA predicate offenses and sentenced Defendant to the mandatory minimum months in prison.
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Defendant appealed to the Court of Appeals for the Ninth Circuit which affirmed the District Court’s sentence prescribed by ACCA, and concluded that the Defendants convictions for fleeing or attempting to elude police officers qualify as violent felonies under ACCA’s residual clause.
Holding: The Court of Appeals for the Ninth Circuit held that Defendant’s three convictions for fleeing or attempting to elude police officers under Oregon Revised Statutes section 811.540(1) constitute violent felonies under ACCA’s residual clause.
Because section 811.540(1) contains alternative elements for fleeing from a police officer in a vehicle and fleeing on foot, the statue is divisible.
Facts: Defendant Cisneros pleaded guilty to being a felon in possession of a firearm. The Government sought to enhance Defendant’s sentence under the Armed Career Criminal Act (ACCA), based on six of Defendant’s prior convictions; three convictions for fleeing or attempting to elude a police officer, Or.Rev.Stat. § 811.540(1), two counts for first-degree burglary, § 164.225, and one conviction for conspiracy to deliver a controlled substance, §§161.450, 475.752.
The District Court held that all six convictions qualified as ACCA predicate offenses and sentenced Defendant to the mandatory minimum of 180 months in prison. Defendant appealed to the Court of Appeals for the Ninth Circuit which affirmed the District Court’s sentence prescribed by ACCA, and concluded that the Defendants convictions for fleeing or attempting to elude police officers and first-degree burglary qualify as predicate offenses under ACCA’s residual clause.
Legal Analysis: The Court of Appeals for the Ninth Circuit reviewed de novo whether Defendant’s prior convictions qualify as predicate violent offenses under Armed Career Criminal Act (ACCA). United States v. Chandler, 743 F.3d 648, 650 9th Cir.2014.
The Armed Career Criminal Act prescribes a mandatory minimum sentence of fifteen years imprisonment for any felon who unlawfully possesses a firearm and who has three or more prior convictions for a violent felony, 18 U.S.C. § 924(2(A)(1))(1). Under ACCA’s residual clause, the definition of violent felony includes any crime punishable by more than one year’s imprisonment that involves conduct that presents a serious potential risk of physical injury to another.
The Court of Appeals for the Ninth Circuit held that Oregon’s first-degree burglary statue and Oregon’s fleeing or attempting to elude a police officer statue qualify as violent felonies under ACCA’s residual clause. After deciding United States v. Snyder, 643 F.3d 694, 699-700 9th Cir.2011(fleeing or attempting to elude a police officer); United States v. Mayer, 560 F.3d 948, 954 9th Cir.2009 (first-degree burglary), the Supreme Court clarified that, in deciding whether a conviction qualifies as a violent felony under ACCA, courts may not review documents relevant to the conviction when the crime of which the Defendant was convicted has a single, indivisible set of elements. Descamps v. United States U.S. 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 2013.
A person commits the crime of fleeing or attempting to elude a police officer if 1) the person is operating a motor vehicle; and 2) a police officer gives a visual or audible signal to bring the vehicle to a stop and either: A) the person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer; or B) the person gets out of the vehicle and knowingly flees or attempts to elude the police officer.
Snyder held that violating this statutes prohibition on vehicular flight constitutes a violent felony under ACCA’s residual clause. The Court of Appeals for the Ninth Circuit held that they have little problem concluding that Oregon’s fleeing or attempting to elude a police officer statue is divisible. By separating flight in a vehicle and flight on foot, the statue lists multiple, alternative elements, which creates several different crimes. In fact, the statue separates itself into two different crimes, dictating flight in a vehicle constitutes a felony while flight on foot constitutes a misdemeanor.
The Oregon Revised Statues Section 811.540(1), which prohibits flight or eluding a police officer, is divisible as to flight on foot and flight in vehicle.
In this case, all three of Defendant’s indictments for fleeing or attempting to elude a police officer used identical language, Each indictment establishes that Defendant was convicted of vehicular flight pursuant to Oregon Revised Statues section 811.540(1)(b)(A).
Therefore, all three of Defendant’s convictions for fleeing or attempting to elude police officers qualify as violent felonies under ACCA’s residual clause and the District Court did not err in sentencing Defendant to the minimum sentence of fifteen years imprisonment prescribed by ACCA.