NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 27 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10368

Plaintiff-Appellee, D.C. No. 1:19-cr-00275-DAD-SKO-1 v.

EDGAR BARRERA, AKA Cito, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted March 16, 2022 San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,** District Judge. Concurrence by Judge FEINERMAN.

Edgar Barrera pleaded guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He had three prior convictions for

domestic battery under California Penal Code § 273.5. The district court found

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. that those three convictions were for “violent felon[ies] … committed on occasions

different from one another,” and therefore sentenced him to the mandatory

minimum fifteen-year prison term under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(1). Barrera appeals his sentence. We review de

novo whether a state conviction qualifies as a violent felony under the ACCA,

whether the district court’s factfinding regarding the timing of Barrera’s prior

offenses violated his Sixth Amendment jury trial right, and whether those prior

offenses in fact were committed on different occasions. See United States v.

Walker, 953 F.3d 577, 578 n.1 (9th Cir. 2020); United States v. Phillips, 149 F.3d

1026, 1031 (9th Cir. 1998). We review the district court’s underlying factual

findings for clear error. See United States v. Gardenhire, 784 F.3d 1277, 1280

(9th Cir. 2015). We affirm.

1. We held in Walker that domestic battery under § 273.5 is a violent felony

for ACCA purposes. See Walker, 953 F.3d at 579-80. As a three-judge panel, we

must adhere to that holding unless an “intervening higher authority” has “undercut

the theory or reasoning … in such a way that the cases are clearly irreconcilable.”

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Barrera points to

Borden v. United States, 141 S. Ct. 1817 (2021), but that decision is not clearly

irreconcilable with Walker.

2 Borden held that an offense cannot “count as a ‘violent felony’ [for ACCA

purposes] if it requires only a mens rea of recklessness.” Id. at 1821-22 (plurality

opinion).1 That holding followed from the ACCA’s elements clause, which

defines “violent felony” to include a crime that “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

18 U.S.C. § 924(e)(2)(B)(i). Borden reasoned that the word “against”

“introduc[es] the conscious object (not the mere recipient) of the force,” which

means “the clause covers purposeful and knowing acts, but excludes reckless

conduct.” 141 S. Ct. at 1826.

Barrera’s prior convictions fall within Borden’s interpretation of the

ACCA’s elements clause because a person convicted of violating § 273.5 must

“willfully inflict a direct application of force on the victim,” “where willfully is a

synonym for intentionally.” Walker, 953 F.3d at 579 (alterations and emphasis

omitted) (first quoting Banuelos-Ayon v. Holder, 611 F.3d 1080, 1084 (9th Cir.

2010); then quoting United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.

1 For purposes of this appeal, we assume that Justice Kagan’s plurality opinion in Borden is controlling under Marks v. United States, 430 U.S. 188 (1977). See Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015) (“With no majority opinion, [a Supreme Court decision] cannot serve as the requisite ‘controlling authority’ capable of abrogating our precedent.”); Lair v. Bullock, 697 F.3d 1200, 1204-06 (9th Cir. 2012) (conducting a Marks analysis to decide whether a splintered Supreme Court decision produced a “majority” opinion that abrogated circuit precedent).

3 2010)). In other words, § 273.5 requires that a defendant “consciously deployed”

force “opposed to or directed at” the victim. Borden, 141 S. Ct. at 1827. Walker

therefore is not clearly irreconcilable with Borden, and we accordingly remain

bound by Walker’s holding that a violation of § 273.5 is a “violent felony” under

the ACCA.

2. The district court did not violate Barrera’s Sixth Amendment jury trial

right by making a finding—that his prior § 273.5 offenses occurred on different

occasions—that increased his maximum sentence. See Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (holding that, in general, a jury must find “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum”). But

for the ACCA’s fifteen-year mandatory minimum, Barrera’s maximum sentence

would have been ten years. See 18 U.S.C. § 924(a)(2).

A sentencing court “cannot[] rely on its own finding about a non-elemental

fact to increase a defendant’s maximum sentence.” Descamps v. United States,

570 U.S. 254, 270 (2013); see also Mathis v. United States, 579 U.S. 500, 511

(2016) (“[A] judge cannot go beyond identifying the crime of conviction to explore

the manner in which the defendant committed that offense.”). That prohibition has

a “narrow exception[]” for “the fact of a defendant’s a prior conviction.” United

States v. Haymond, 139 S. Ct. 2369, 2377 n.3 (2019) (plurality opinion) (citing

Almendarez-Torres v. United States, 523 U.S. 224 (1998)). We held in Walker that

4 the exception authorizes “a sentencing judge [to] find the dates of prior offenses in

deciding if a defendant has committed three or more violent felonies.” 953 F.3d at

580 (citing United States v. Grisel, 488 F.3d 844, 845-47 (9th Cir. 2007) (en banc),

abrogated in part on other grounds by United States v. Stitt, 139 S. Ct. 399

(2018)).

Barrera argues that this aspect of Walker cannot be reconciled with the

Supreme Court’s decisions in Descamps and Mathis. But Walker postdates those

Supreme Court decisions, so it remains binding here. See Miller, 335 F.3d at 900.

3. The district court did not err in determining that Barrera’s prior § 273.5

offenses were “committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Barrera was convicted twice in 2010 and once in 2015. Relying on

charging documents alleging that his first two domestic battery offenses occurred

“[o]n or about December 25, 2009,” and “[o]n or about April 12, 2010,”

respectively, the district court found that all three prior offenses “occur[red] on

different dates.” That was not clear error.

Barrera suggests that his two 2010 convictions theoretically could have

arisen from conduct that occurred on the same day because California law does not

require a charging document’s allegations to match the offense’s actual date. But

the district court reasonably could have inferred from the fact that the offenses

were separately charged months apart that they were committed on different days.

5 Cf. People v. Goolsby, 363 P.3d 623, 624 (Cal. 2015) (noting that California law

“generally requir[es] all offenses involving the same act or course of conduct to be

prosecuted in a single proceeding”). It follows that the district court correctly held

that Barrera’s three prior offenses occurred on separate occasions for ACCA

purposes. See Wooden v. United States, 142 S. Ct. 1063, 1070-71 (2022)

(explaining that although the separate-occasions analysis is “multi-factored,”

“[c]ourts … have nearly always treated offenses as occurring on separate occasions

if a person committed them a day or more apart”); see also United States v. Lewis,

991 F.2d 524, 526 (9th Cir. 1993) (holding that crimes committed three days apart

took place on separate occasions).

AFFIRMED.

6

FILED

United States v. Barrera, No. 20-10368 APR 27 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FEINERMAN, District Judge, concurring:

The panel faithfully applies circuit precedent that forecloses Barrera’s Sixth

Amendment challenge to his sentence. See United States v. Walker, 953 F.3d 577,

580 (9th Cir. 2020); United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en

banc), abrogated in part on other grounds by United States v. Stitt, 139 S. Ct. 399

(2018)). No intervening higher authority has abrogated that precedent. See

Wooden v. United States, 142 S. Ct. 1063, 1068 n.3 (2022) (declining to consider

“whether the Sixth Amendment requires that a jury, rather than a judge, resolve

whether prior crimes occurred on a single occasion”). The panel’s disposition of

the Sixth Amendment issue accordingly is correct.

I write separately, however, to note that Walker and Grisel are difficult to

reconcile with the Supreme Court’s admonition that a sentencing judge evaluating

whether a defendant’s prior offenses qualify as ACCA predicate offenses “can do

no more, consistent with the Sixth Amendment, than determine what crime, with

what elements, the defendant was convicted of.” Mathis v. United States, 579 U.S.

500, 511-12 (2016). California Penal Code § 273.5 does not include the date of

offense as an element. It seems to follow, then, that the dates set forth in Barrera’s

charging documents are “amplifying but legally extraneous circumstances,” and

therefore that they “cannot license a later sentencing court to impose extra punishment.” Descamps v. United States, 570 U.S. 254, 270 (2013); see also

United States v. Haymond, 139 S. Ct. 2369, 2381 (2019) (plurality opinion) (“A

mandatory minimum … sentence that comes into play only as a result of additional

judicial factual findings by a preponderance of the evidence cannot stand.”); id. at

2386 (Breyer, J., concurring) (“[I]n an ordinary criminal prosecution, a jury must

find facts that trigger a mandatory minimum prison term.”).

Given the apparent conflict between circuit law and Supreme Court

precedent, this case may be an appropriate candidate for further review, whether by

the en banc court, see Fed. R. App. P. 35(a)(1), or the Supreme Court, see Wooden,

142 S. Ct. at 1087 n.7 (Gorsuch, J., concurring in the judgment) (noting that “there

is little doubt” the Supreme Court will consider the Sixth Amendment question

“soon”).