United States v. Darrel Duane Grisel

Opinion by Judge GRABER; Dissent by Judge BEA.

We took this case en banc primarily to reexamine the validity of United States v. Cunningham, 911 F.2d 361 (9th Cir.1990) (per curiam). In Cunningham , we held that second-degree burglary under Oregon law is a categorical burglary offense under the analysis required by Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), for purposes of applying the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924 (e). Cunningham, 911 F.2d at 363 . We now hold that Cunningham was wrongly decided and expressly overrule it.

Defendant Darrel Duane Grisel pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). Under the ACCA, a district court must sentence a defendant who violates § 922(g) and who has three prior convictions for violent felonies or serious *846 drug offenses to a mandatory minimum of 180 months’ imprisonment. 18 U.S.C. § 924 (e)(1). The ACCA identifies “burglary” as a violent felony for purposes of the mandatory minimum enhancement. 18 U.S.C. § 924 (e)(2)(B)(ii).

At Defendant’s sentencing hearing, the government submitted judgments of conviction and…

join, dissenting:

The Supreme Court, as recently as April 18, 2007, has explained in clear terms the reason burglary is included as a predicate offense in the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924 (e)(2)(B)(ii):

James v. United States, — U.S. -, 127 S.Ct. 1586, 1594 , 167 L.Ed.2d 532 (2007).

Id. at 1592 (emphasis added) (quoting Taylor v. United States, 495 U.S. 575, 597 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990)).

Taylor, 495 U.S. at 588 , 110 S.Ct. 2143 .

James, 127 S.Ct. at 1592 -93 (quoting H.R.Rep. No. 99-849, p.3 (1986)). The Supreme Court is not trying to tell us something. I submit it has: generic burglary includes felonious entries into buildings and “other structure^]” suitable for human occupation wherein a threat of violence is likely to occur. Taylor, 495 U.S. at 598 , 110 S.Ct. 2143 .

Notwithstanding these clear statements about the reason ACCA includes burglary as a predicate offense, and the Supreme Court’s plain attempt in Taylor to define generic burglary broadly to give effect to congressional intent, today the majority returns our treatment of Oregon’s burglary statute under ACCA to pre-Taylor status by overruling United States v.…

488 F.3d 844 UNITED STATES of America, Plaintiff-Appellee, v. Darrel Duane GRISEL, Defendant-Appellant. No. 05-30585. United States Court of Appeals, Ninth Circuit. Argued and Submitted En banc March 22, 2007. Filed June 5, 2007. Kendra M. Matthews, Ransom Blackman LLP, Portland, OR, for the defendant-appellant. Stephen F. Peifer, Assistant U.S. Attorney, Portland, OR, for the plaintiff-appellee. Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the amicus curiae. Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CR-05-00116-JO. Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, PAMELA ANN RYMER, ANDREW J. KLEINFELD, HAWKINS, A. WALLACE TASHIMA, SUSAN P. GRABER, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge BEA. GRABER, Circuit Judge. 1 We took this case en banc primarily to reexamine the validity of United States v. Cunningham, 911 F.2d 361 (9th Cir.1990) (per curiam). In Cunningham , we held that…