FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50154
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00317-
ARMANDO JOSEPH CORONADO, DSF-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
February 3, 2010—Pasadena, California
Filed May 3, 2010
Before: Mary M. Schroeder, Raymond C. Fisher and
N. Randy Smith, Circuit Judges.
Opinion by Judge Schroeder
6573
UNITED STATES v. CORONADO 6575
COUNSEL
Jennifer J. Uyeda, Los Angeles, California, for the defendant-
appellant.
Angela Sanneman, Los Angeles, California, for the plaintiff-
appellee.
6576 UNITED STATES v. CORONADO
OPINION
SCHROEDER:
Armando Joseph Coronado appeals the sixty-three month
sentence he received following the entry of his guilty plea to
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). The sentence included a six level increase
to Coronado’s base offense level for a prior “crime of vio-
lence,” pursuant to U.S. Sentencing Guideline § 2K2.1(a)
(4)(A). The enhancement was imposed on account of Corona-
do’s prior California state court conviction under California
Penal Code section 246.3 for discharging a firearm in a
grossly negligent manner.
The district court ruled that the California conviction was
a crime of violence because the intentional discharge of a fire-
arm fell within U.S. Sentencing Guideline § 4B1.2(a)’s resid-
ual clause, which encompasses “any offense . . . that . . .
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” The Supreme Court’s deci-
sion in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581
(2008), guides our interpretation of the Sentencing Guideline
at issue here because Begay considered an identical residual
clause in the Armed Career Criminal Act (“ACCA”). The
Court held the language contains an implied requirement of
“purposeful, violent, and aggressive conduct.” Id. at 144-45.
Negligent or reckless conduct does not qualify. The California
statute in question penalizes conduct that is only grossly neg-
ligent. We therefore join other circuits in concluding that a
conviction under a statute proscribing grossly negligent con-
duct, even though it involves an intentional and potentially
dangerous act, is not a “crime of violence” within the mean-
ing of U.S. Sentencing Guideline § 4B1.2(a). See, e.g., United
States v. Woods, 576 F.3d 400 (7th Cir. 2009) (en banc).
DISCUSSION
In the district court, Coronado pled guilty to a one-count
indictment for being a felon in possession of a firearm in vio-
UNITED STATES v. CORONADO 6577
lation of 18 U.S.C. § 922(g)(1). As part of his plea agreement,
Coronado admitted that he had previously been convicted in
California of discharging a firearm with gross negligence. At
sentencing, the parties disputed whether that conviction was
a crime of violence. The district court described the issue as
“close,” recognizing that it is one of first impression in this
circuit. The district court considered Begay, but reasoned it
did not control because it did not involve the same Sentencing
Guideline at issue here. The district court went on to hold that
even if Begay controlled, the California conviction differs
from the DUI offense involved in Begay because the Califor-
nia conviction was for the intentional discharge of a weapon,
and such conduct necessarily presents a likely cause of injury
or death.
We review de novo the classification of a defendant’s prior
conviction for purposes of applying the Sentencing Guide-
lines. United States v. Rodriguez-Rodriguez, 393 F.3d 849,
856 (9th Cir. 2005).
I.
[1] We first consider whether the residual clause of the
definition of a “crime of violence” in U.S. Sentencing Guide-
line § 4B1.2 is governed by Begay’s analysis. The district
court held it is not, because Begay was construing the lan-
guage of the ACCA. The Sentencing Guidelines at § 2K2.1
establish an enhancement for a prior conviction that is a
“crime of violence.” That provision incorporates by reference
the definition of “crime of violence” found at U.S. Sentencing
Guideline § 4B1.2(a). U.S.S.G. § 2K2.1, cmt. n.1. Under that
provision, a “crime of violence” is:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
6578 UNITED STATES v. CORONADO
(2) is a 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.
U.S.S.G. § 4B1.2(a) (emphasis added). This court has referred
to the first clause as the “element test,” the second clause as
the “enumerated offense approach,” and the third clause as the
“serious risk of injury test,” United States v. Gomez-Leon, 545
F.3d 777, 787-88 (9th Cir. 2008), or “residual clause,” United
States v. Snellenberger, 548 F.3d 699, 706 (9th Cir. 2008).
Only the residual clause, which broadens the definition of a
“crime of violence” to include any offense that “otherwise
involves conduct . . . ,” is at issue here.
[2] In Begay, the Supreme Court interpreted an identical
residual clause in the ACCA. The ACCA defines “violent fel-
ony” as follows:
any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delin-
quency involving the use or carrying of a firearm,
knife, or destructive device that would be punishable
by imprisonment for such term if committed by an
adult, that —
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another; or
(ii) 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) (emphasis added).
[3] There are various statutory and Guideline definitions of
what constitutes a “crime of violence.” See, e.g., 18 U.S.C.
UNITED STATES v. CORONADO 6579
§§ 16, 924(c)(3); U.S.S.G. §§ 4B1.2, 2L1.2 cmt. n.1(B)(iii).
We have observed that these definitions are not always inter-
changeable. In Gomez-Leon we distinguished between a dif-
ferent Guideline definition of “crime of violence,” pertaining
to illegal reentry, and some statutory definitions. 545 F.3d at
786-87. Our discussion in Gomez-Leon led the district court
to hold in this case that the Supreme Court’s analysis in
Begay, which interpreted the statutory residual clause in the
ACCA, did not apply to the residual clause in U.S. Sentencing
Guideline § 4B1.2 at issue here, even though the language is
identical. Our observation in Gomez-Leon was not meant to
suggest, however, that similar language can never mean the
same thing in a Guideline that it means in a statute. Indeed,
because the language of both the ACCA and the Guideline
adopt the same “serious risk of injury” test, the analysis in
Gomez-Leon suggests the definitions should be interpreted
similarly. See id. at 786-90. The Begay analysis controls ours.
In holding that Begay’s analysis applies in the context of
U.S. Sentencing Guideline § 4B1.2, we are in agreement with
every circuit that has had occasion to reach the issue. See
United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008);
United States v. Gray, 535 F.3d 128, 130-31 (2d Cir. 2008);
United States v. Roseboro, 551 F.3d 226, 229 n.2 (4th Cir.
2009) (abrogated on other grounds by United States v. Rivers,
595 F.3d 558, 560 (4th Cir. 2010)); United States v. Mohr,
554 F.3d 604, 609 n.4 (5th Cir. 2009); United States v. Baker,
559 F.3d 443, 453 (6th Cir. 2009); United States v. Spells, 537
F.3d 743, 754 (7th Cir. 2008); United States v. Williams, 537
F.3d 969, 971 (8th Cir. 2008); United States v. Williams, 559
F.3d 1143, 1147-48 n.7 (10th Cir. 2009); United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Although not
conceding the issue, the government does not seriously con-
test that our task is to apply the same analysis the Court
applied in Begay to determine whether the defendant’s prior
conviction is a “crime of violence” under U.S. Sentencing
Guideline § 4B1.2.
6580 UNITED STATES v. CORONADO
II.
We therefore next examine Begay and the standard it cre-
ated. The issue before the Supreme Court in Begay was
whether a New Mexico conviction for driving under the influ-
ence of alcohol fit within the residual clause of the ACCA.
553 U.S. at 139-40. Like the residual clause here, ACCA pro-
vides that a “violent felony” includes any crime punishable by
more than one year imprisonment that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B).
[4] The Court assumed that driving under the influence
involved conduct that “presents a serious potential risk of
physical injury to another.” Begay, 553 U.S. at 141. The
Court focused, however, on the enumerated examples of con-
duct in the preceding clause that illustrated what the crime
must be like, and referenced the enumerated examples of
“burglary, arson, or extortion,” or an offense involving the
“use of explosives.” Id. at 142. The Court held that the crimes
encompassed by the residual clause must be similar to the
enumerated examples both “in kind as well as in degree of
risk posed.” Id. at 143. The court characterized the enumer-
ated examples as offenses involving “purposeful, violent, and
aggressive conduct.” Id. at 145.
The Court then concluded in Begay that the DUI crime did
not involve such conduct because the crime of driving under
the influence did not share the “purposeful, violent, and
aggressive” characteristics of the enumerated crimes. Id. at
144-48. Accordingly, the DUI was not a violent felony under
the ACCA, even though the Court recognized that the conduct
created a serious risk of causing injury or death. Id. at 148.
[5] The question here therefore becomes whether a person
convicted of negligent discharge of a firearm under California
Penal Code section 246.3 necessarily engaged in conduct that
was “purposeful, violent, and aggressive.” See Begay, 553
UNITED STATES v. CORONADO 6581
U.S. at 145; see also United States v. Christensen, 559 F.3d
1092, 1095 (9th Cir. 2009) (following Begay). All three
criteria must be satisfied for the California crime to be a cate-
gorical match with the federal definition. Christensen, 559
F.3d at 1095. We thus held in Christensen that statutory rape
was not a violent felony under the ACCA, emphasizing that
the crime was, like the DUI crime in Begay, one that “ ‘crimi-
naliz[ed] conduct in respect to which the offender need not
have any criminal intent at all.’ ” Id. (quoting Begay, 553 U.S.
at 145).
[6] Coronado correctly contends that his conviction under
section 246.3 cannot be a crime of violence because a convic-
tion under section 246.3 only requires gross negligence, and
crimes with a mens rea of gross negligence or recklessness do
not satisfy Begay’s requirement of “purposeful” conduct. This
is because “gross negligence” and recklessness do not require
criminal intent. See People v. Ramirez, 201 P.3d 466, 471
(Cal. 2009).
[7] The government responds that section 246.3 does
require “purposeful” conduct because the statute requires the
intentional act of discharging a firearm. We agree with Coro-
nado, however, because the conduct, albeit intentional, is not
intended to harm anyone. In that key respect, it is not like the
enumerated crimes of burglary of a dwelling, arson, extortion
or those involving use of explosives.
This is borne out by the California cases interpreting the
underlying criminal statute, California Penal Code section
246.3. The statute creates a felony offense when “any person
. . . willfully discharges a firearm in a grossly negligent man-
ner which could result in injury or death to a person.” Cal.
Penal Code § 246.3. California courts have defined the ele-
ments of a section 246.3 offense to include: “(1) the defendant
unlawfully discharged a firearm; (2) the defendant did so
intentionally; and (3) the defendant did so in a grossly negli-
gent manner which could result in the injury or death of a per-
6582 UNITED STATES v. CORONADO
son.” People v. Overman, 24 Cal. Rptr. 3d 798, 809 (Cal. Ct.
App. 2005) (internal quotation marks omitted). Overman
characterizes section 246.3 as a “general intent crime”
because “its mental state consists of an intent to do the act that
causes the harm.” Id. The California Court of Appeal went on
to say that the statute unequivocally “does not require a spe-
cific intent to do a further act or achieve a future consequence
beyond the act of discharging a firearm in a grossly negligent
manner.” Id. (internal quotation marks omitted). In other
words, it does not require any intent to cause harm.
While we have not previously had occasion to consider
whether a predicate offense with a mens rea of gross negli-
gence can satisfy Begay’s requirement of “purposeful” con-
duct, we have considered the meaning of “purposeful” in
other contexts. In Fernandez-Ruiz v. Gonzales, we decided
that a misdemeanor conviction for a domestic assault did not
constitute a “crime of domestic violence” within the meaning
of our federal immigration law, because the Supreme Court,
in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004), inter-
preted a “crime of domestic violence” under the immigration
law to cover only those crimes involving “volitional” and not
“accidental” acts. 466 F.3d 1121, 1123 (9th Cir. 2006) (en
banc). The statute at issue in Fernandez-Ruiz required only
recklessness, not purposeful conduct. Id. at 1129-30. We
explained with reference to the dictionary definition, “ ‘Pur-
poseful’ means ‘[d]one with a specific purpose in mind;
DELIBERATE.’ . . . . Reckless conduct, as generally defined,
is not purposeful.” Id. at 1130 (quoting Black’s Law Dictio-
nary 16 (8th ed. 2004)). Consistent with our analysis in
Fernandez-Ruiz, “grossly negligent” conduct as required
under section 246.3 cannot satisfy Begay’s “purposeful” con-
duct standard.
It is true, as the district court recognized, that discharge of
a firearm in a grossly negligent manner as proscribed by sec-
tion 246.3, especially in a populated area, may very well
create a high likelihood of substantial harm to others. The
UNITED STATES v. CORONADO 6583
California statute, however, while clearly requiring an inten-
tional act, does not require that the act be done with intent to
harm, or even that the act be directed toward any other per-
son. The act therefore need not be “purposeful, violent, and
aggressive” as required by Begay.
In so holding, we agree with the other circuits that have
considered similar questions. See United States v. Herrick,
545 F.3d 53, 59 (1st Cir. 2008) (residual clause does not
encompass vehicular manslaughter with mens rea of criminal
negligence because not purposeful or aggressive); United
States v. Gray, 535 F.3d 128, 131-32 (2d Cir. 2008) (residual
clause does not encompass reckless endangerment in first
degree because not purposeful); United States v. Baker, 559
F.3d 443, 452-53 (6th Cir. 2009) (residual clause does not
encompass reckless endangerment involving a deadly weapon
because not purposeful, violent and aggressive); United States
v. Woods, 576 F.3d 400, 410-13 (7th Cir. 2009) (en banc)
(residual clause does not encompass involuntary manslaugh-
ter, which requires recklessness, because not purposeful);
United States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008)
(residual clause does not encompass carrying a concealed fire-
arm, where statute does not require specific intent, because
not necessarily purposeful, violent, or aggressive).
The case addressing an argument closest to the govern-
ment’s argument in this case is the Seventh Circuit’s decision
in Woods. At issue in Woods was whether a prior conviction
for involuntary manslaughter, which required only a finding
of reckless conduct, qualified as a prior “crime of violence”
under the residual clause of U.S. Sentencing Guideline
§ 4B1.1. 576 F.3d at 401. The government argued in Woods
that because the defendant had intended to drink and drive
when he caused a DUI death, the death was “purposeful.” Id.
at 410. The majority of the Seventh Circuit rejected the gov-
ernment’s proposed distinction between the act and the conse-
quence as contradictory to Begay:
6584 UNITED STATES v. CORONADO
In our view, this is precisely the distinction that the
Begay Court rejected. In Begay itself, the defendant
intended both the act of drinking alcoholic beverages
and the act of driving his car; he was reckless only
with respect to the consequences of those acts. . . .
The Government’s argument not only blurs that line;
it obliterates it.
Id. In Woods, the reckless conduct had resulted in a death,
which the dissenting opinion stressed. See id. at 414 (Easter-
brook, C.J., dissenting) (“How can homicide not be an inten-
tional, violent, and aggressive act?”). In this case, the
consequence of the act of discharging the firearm was only
the creation of a risk and not an actual injury to another per-
son, so the concerns of the dissent in Woods are not impli-
cated. Moreover, as the Seventh Circuit noted, “[e]very crime
of recklessness necessarily requires a purposeful, volitional
act that sets in motion the later outcome.” Id. at 411 (majority
opinion). Thus, it held, “crimes with the mens rea of reckless-
ness do not fall within [the] scope” of the residual clause as
interpreted by Begay. Id. at 413.
[8] We therefore hold that California Penal Code section
246.3, discharging a firearm in a grossly negligent manner, is
not a “crime of violence” under U.S. Sentencing Guideline
§ 4B1.2(a), because it proscribes only acts of gross negligence
that are not “purposeful, violent, and aggressive” as required
by the Supreme Court’s analysis in Begay.
III.
[9] The government finally argues that even if Coronado’s
prior conviction under section 246.3 does not constitute a
“crime of violence,” we should affirm Coronado’s sentence as
harmless error. The government argues the error was harmless
because the district court stated at sentencing that the rest of
Coronado’s criminal record of prior convictions was serious
enough to warrant an upward departure even if the prior con-
UNITED STATES v. CORONADO 6585
viction under section 246.3 were not a crime of violence war-
ranting an enhancement. The district court imposed the
enhancement, however, before this court had an opportunity
to consider the applicability of Begay to U.S.S.G. § 4B1.2 and
hence without a full understanding of what our law now
requires to be the elements of a “crime of violence.” We
therefore must vacate the sentence and remand for resentenc-
ing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2003) (miscalculation of Guideline range is procedural error
requiring reversal).
Sentence VACATED and REMANDED.