Sunday, July 03, 2011

Case o' The Week: Judge Tashima Brings a Different View: ACCA, Oregon Burgs, and Snyder

This week a panel of the Ninth assures us that an indictment alleging a burglary of a dwelling, plus the address of the dwelling, is enough to be sure that the structure burglered was actually a house or a residence -- not an RV, or shed, or truck, or booth. United States v. Snyder, 2011 WL 2573578 (9th Cir. June 30, 2011), decision available here.

How sure is the Ninth? Sure enough to trigger a fifteen year, mandatory minimum sentence for Mr. Snyder, whose previous Oregon convictions were mostly six-month stints.

Judge Tashima, by contrast, has apparently mastered street view on Google maps -- and worries about the justice of this decision in a compelling concurrence.

Players: Decision by Judge Bea, compelling concurrence by Judge Tashima.

Facts: Snyder pleaded guilty to being a felon in possession of a firearm, a violation of 18 USC § 922(g). Id. at *1. The fight was whether he fell within the Armed Career Criminal Act (ACCA), a statute that creates a fifteen year mandatory-minimum sentence. Id. ACCA eligibility can be triggered by three priors crimes of violence: here, one wasn’t disputed, the second was an Oregon second-degree burglary, and the third was an Oregon felony attempt to elude. Id. The district court found the burglary qualified – Snyder appealed. Id. The court found the attempt to elude the police didn’t qualify – the government appealed. Id.

Issue(s): “Snyder contends that because the term ‘building’ in Oregon’s second degree burglary statute, ORS § 164.215, is defined broadly, this court cannot presume the word, ‘building’ is intended in its ordinary sense” [for the modified categorical analysis of whether this is a generic burglary that triggers ACCA.] Id. at *3. Under Oregon law, a building, “in addition to its ordinary meaning includes any booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodation of persons or for carrying on business therein.” Id.

Held: “[T]he burglary indictment in Snyder’s case did not simply allege he entered or remained in any unnamed building. It designated a specific building occupied by a business: ‘a building located at 1341 Rogue River Highway (Friendly Motors.”) Id. at *3. “Using the term ‘building’ together with a street address provided adequate proof, based solely on the documents of conviction, that the defendant was convicted of the entering or remaining in a ‘building’ as that term is commonly used, and as is meant in the generic definition of burglary in Taylor.” Id.

Of Note: Have you been to Oregon? Judge Tashima apparently has. He knows that almost any street address in Oregon can (and probably does) contain any matter of various edifices: it could be “full of trucks, trailers, RVs, booths, and sheds, as well as the site of a generic building.” Id. at *5 (Tashima, J., concurring).

[Ed. Note: click on the picture above right, or on the address following, or plug 1341 Rogue River Highway, Grant's Pass, Oregon into Google Maps, and click, "Street View." Sure looks like lots of things to burglar under the Oregon statute, besides a business or residence]

Judge Tashima explains that a mere street address plus the term “building” in an indictment is not, logically, enough to fairly satisfy the modified categorical inquiry on whether a generic “building” was burglared under Oregon law. Unfortunately, Judge Tashima must concede that this battle was lost a decade ago, when the Ninth held that the combo of an address and “building” was enough. Id. (discussing United States v. Stephens, 237 F.3d 1031, (9th Cir. 2011)).Link
How to Use: Two weeks ago, we complained that the Ninth wasted no time in using that lousy Supreme Court decision, Sykes. See blog here. Judge Bea continues the trend of deferring to controlling Supreme Court authority here in Snyder, and holds that the Oregon evading statute is an ACCA-predicate “crime of violence.” Id. at *5.

As of July 4, 2011, the Ninth hasn’t decided whether Sykes means that California’s evading statute is an ACCA trigger – but beware, beware, if such a conviction is your 922(g)(1) client’s third prior.

For Further Readings: Does ACCA law seem like ends-driven gobblygook to you? It does to Justice Scalia, too. See Derby v. United States, 2011 WL 2518893 (June 27, 2011) (Scalia, J., dissenting from denial of cert.)(“How we would resolve these cases if we granted certiorari would be a fine subject for a law-office betting pool. No one knows for sure. Certainly our most recent decision interpreting ACCA’s residual clause, Sykes . . ., would be of no help. The ‘rule’ we announced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a ‘beginning point,’. . . look at the statistical record, which is not ‘dispositive’ but sometimes confirms ‘commonsense conclusion[s],’ . . . ; and check whether the crime is ‘purposeful, violent, and aggressive,’ unless of course the crime is among the unspecified ‘many cases’ in which that test is ‘redundant with the inquiry into risk,’ . . . . And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four successive cases we have thus far decided, . . . who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce? Surely a perfectly fair wager.”)

Image of 1341 Rogue River Highway, Oregon from,+Grants+Pass,+Oregon&um=1&ie=UTF-8&hq=&hnear=0x54c57bc8a54412ed:0xbeacc4b8398a39c9,1341+Rogue+River+Hwy,+Grants+Pass,+OR+97527&gl=us&ei=N-IQTpGCAoHKiAKz_MzQDQ&sa=X&oi=geocode_result&ct=title&resnum=1&ved=0CBsQ8gEwAA

Steven Kalar, Senior Litigator ND Cal FPD. Website at



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