FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30322
Plaintiff-Appellee,
v. D.C. No.
2:08-cr-00084-MJP
SYLVESTER J. ALDERMAN,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
July 6, 2009—Seattle, Washington
Filed April 15, 2010
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Kleinfeld
5611
UNITED STATES v. ALDERMAN 5613
COUNSEL
Ralph Hurvitz, Seattle, Washington, for the appellant.
Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This is a sentence appeal, with two issues. We hold that the
first degree theft crime under Washington law of which
5614 UNITED STATES v. ALDERMAN
Alderman was convicted is a “crime of violence” for purposes
of the guidelines enhancement, and that the shooting in this
case was an assault under Washington law.
Facts.
The district court and we have watched Alderman commit
the crime on television. The events were recorded by a sur-
veillance camera aimed at the Seattle apartment complex
parking lot where they occurred. A man named Roosevelt
Montgomery drove up and parked, approached Alderman, and
they talked. Then Montgomery began punching Alderman. He
got Alderman on the ground and landed numerous punches
and a few kicks, while a woman apparently with Montgomery
rifled Alderman’s pockets. Then the beating ended, and
Alderman backed away, hitching up his pants.
Alderman then drew a gun and started shooting toward
Montgomery. The tables being turned by the gun, Alderman
now chased Montgomery around Montgomery’s car, shooting
at him, as Montgomery tried to get into his car and drive
away. Alderman fired eight shots at Montgomery as he chased
him around his car and another car, then left, firing one addi-
tional parting shot. He never hit Montgomery, and Montgom-
ery drove off. Montgomery later told police that he was
grazed by one bullet, but he did not seek medical attention.
Alderman was a convicted felon, and the Glock nine milli-
meter pistol he had used to shoot at Montgomery was easily
tied to him. He confessed and pleaded guilty to being a felon
in possession.1 In the plea agreement, he admitted that he had
previously been convicted of second degree robbery and, in
another case, first degree theft.
His guidelines calculation was adjusted upward for the
1
18 U.S.C. § 922(g)(1).
UNITED STATES v. ALDERMAN 5615
prior felonies, on the theory that they were “crimes of violence.”2
An additional upward adjustment in his offense level was
imposed on the theory that he had used the unlawfully pos-
sessed pistol “in connection with another felony,” shooting at
Montgomery.
Alderman argues that his prior theft conviction could not
properly be counted as a “crime of violence” under the guide-
lines, and that shooting at Montgomery could not properly be
deemed a felony.
Analysis.
We review the district court’s interpretation of the U.S.
Sentencing Guidelines de novo,3 the district court’s factual
findings for clear error, and the district court’s application of
the Guidelines to the facts for abuse of discretion.4
Alderman’s Washington judgment says that he was con-
victed in 2005 of “theft in the first degree.” The information
alleged that he and Bobby Barnard Beasley assaulted a man
and took his car “from the person” of the victim. The police
report said that he and Beasley stuck a gun in a man’s face as
the victim was driving away from a Kentucky Fried Chicken,
told him he was being robbed, and ripped a necklace off the
victim’s neck. The victim escaped as Alderman and Beasley
drove off in the victim’s car. Our question is whether the
crime defined by the state statute is “categorically”5 a crime
of violence.
As Alderman concedes, we held in United States v. Jennings6
2
U.S.S.G. § 2K2.1 (Nov. 2007).
3
United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008).
4
Id. (citing United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007)).
5
United States v. Taylor, 495 U.S. 575, 600-02 (1990).
6
515 F.3d 980 (9th Cir. 2008).
5616 UNITED STATES v. ALDERMAN
that the relevant portion of Washington first degree theft was
indeed a “violent felony” under the Armed Career Criminal Act.7
The Armed Career Criminal Act uses the same definition for
“violent felony” as the Guidelines do for “crime of violence.”8
Jennings applies our holding and reasoning in United States
v. Wofford.9 Alderman argues that Jennings and Wofford are
no longer good law, because the Supreme Court in Begay v.
United States10 narrowed the construction of “violent felony”
in a way that excludes Washington first degree theft from the
“crime of violence” category.
[1] Wofford, another felon in possession case, did a cate-
gorical analysis of grand theft from a person under California
law.11 We held that California grand theft from a person was
categorically a “violent felony” under the Armed Career
Criminal Act because it required direct physical contact
between the perpetrator and the victim, thereby creating a
serious potential risk of physical injury to another.12 We held
that California grand theft from a person fell within the “oth-
erwise” clause of the subsection of the “violent felony” defini-
tion:13 “burglary, arson, or extortion, involved the use of
explosives, or otherwise involves conduct that presents a seri-
ous potential risk of physical injury to another.”14 The risk of
physical injury arose because the victim might resist or a
bystander intervene and a struggle ensue.15
Jennings, the Washington case, also involved a sentencing
7
Id. at 989.
8
Compare 18 U.S.C. § 924(e)(2)(B) with U.S.S.G. § 4B1.2(a) (2007).
9
122 F.3d 787 (9th Cir. 1997).
10
128 S. Ct. 1581 (2008).
11
Wofford, 122 F.3d at 792-94.
12
Id. at 793.
13
Id.
14
18 U.S.C. § 924(e)(2)(B)(ii).
15
Wofford, 122 F.3d at 793-94.
UNITED STATES v. ALDERMAN 5617
enhancement on a federal felon in possession conviction.16
We held that the same conviction as Alderman’s under the
identical statute was categorically a “violent felony” under the
Armed Career Criminal Act.17 We held that Wofford con-
trolled.18
The government argues that we should review only for
plain error, under Rule 52 and United States v. Olano,19
because Alderman did not argue before the district court that
Begay undermined Wofford and Jennings. Our analysis is
unaffected by the different standard applicable to plain error,
because we conclude that there would be no error even if
Alderman had argued from Begay. Begay leaves the Wofford-
Jennings holdings in force.
[2] In Begay, the prior conviction was for drunk driving.
The question was whether felony driving under the influence
under New Mexico law was a “violent felony” under the
Armed Career Criminal Act.20 The Court held that it was not.21
The reason was that drunk driving was too dissimilar to the
listed crimes — burglary, arson, extortion, and explosives
crimes — to fall within the “otherwise involves conduct that
presents a serious potential risk of physical injury to another”
clause.
In our view, the provision’s listed examples — bur-
glary, arson, extortion, or crimes involving the use of
explosives — illustrate the kinds of crimes that fall
within the statute’s scope. Their presence indicates
that the statute covers only similar crimes, rather
16
Jennings, 515 F.3d at 983.
17
Id. at 989.
18
Id.
19
62 F.3d 1180, 1187-88 (9th Cir. 1995); see also United States v.
Rendon-Duarte, 490 F.3d 1142, 1147-48 (9th Cir. 2007).
20
Begay, 128 S. Ct. at 1583.
21
Id. at 1588.
5618 UNITED STATES v. ALDERMAN
than every crime that “presents a serious potential
risk of physical injury to another.”22
The Court applied a straightforward ejusdem generis analysis,
requiring that “otherwise” crimes be “roughly similar, in kind
as well as in degree of risk involved” to the listed crimes.23
The listed crimes “typically involve purposeful, violent and
aggressive conduct,” while drunk driving, though creating
great risk to others, typically does not.24 The listed crimes
“also show an increased likelihood that the offender is the
kind of person who might deliberately point the gun and pull
the trigger,”25 while drunk driving does not.
Likewise, in Chambers v. United States the Court held that
criminal “failure to report” for penal confinement was not a
violent felony for purposes of the Armed Career Criminal Act.26
The crime was malum prohibitum, not malum in se. The Court
noted that “the crime amounts to a form of inaction,” unlike
the enumerated offenses in the statute.27 Not showing up is
unlikely to be “purposeful, violent, and aggressive” or to indi-
cate “an increased likelihood that the offender is the kind of
person who might deliberately point the gun and pull the trig-
ger.”28
[3] First degree theft under the pertinent Washington stat-
ute required, when Alderman committed it, a personal, physi-
cal encounter between thief and victim. The property had to
22
Id. at 1585 (quoting 28 U.S.C. § 924(e)(2)(B)(ii)).
23
Id.; see also United States v. Christensen, 559 F.3d 1092, 1094 (9th
Cir. 2009) (“The Court used an ejusdem generis analysis, concluding that
crimes covered by the catch-all clause must involve conduct similar to the
conduct in the four crimes specifically named in the statute[.]”).
24
Id.
25
Id. at 1587.
26
129 S. Ct. 687, 691-92 (2009).
27
Id. at 692.
28
Begay, 128 S. Ct. at 1587.
UNITED STATES v. ALDERMAN 5619
be “taken from the person” of the victim, not just from his car
or his house or business:
(1) A person is guilty of theft in the first degree if he
or she commits theft of:
...
(b) Property of any value other than a firearm as
defined in RCW 9.41.010 taken from the person of
another.
(2) Theft in the first degree is a class B felony.29
This relevant aspect of Washington first degree theft is similar
enough for ejusdem generis purposes to the listed crimes,
“burglary, arson, or extortion, [or a crime that] involves use
of explosives.” Like burglary, indeed probably more than
most burglaries, theft from the person is a purposeful aggres-
sive act directed toward a person who, unless he submits,
invites violence from the criminal. The thief has to be aggres-
sive enough to intimidate the victim into submission or hope-
ful that despite personal contact the victim will not realize his
possession was stolen until it is too late to resist. An offender
bold and aggressive enough to steal from the person of
another shows a greatly increased likelihood, compared to a
drunk driver, that he is “the kind of person who might deliber-
ately point the gun and pull the trigger.”30
29
Wash. Rev. Code § 9A.56.030 (b) (2005) (emphasis added). There is
another subsection of § 9A.56.030(1), subsection (a), which makes the
theft of “property or services which exceed(s) one thousand five hundred
dollars in value” an instance of theft in the first degree even if the property
is not taken from the person of another. Alderman’s briefs on this appeal,
however, proceed uniformly on the basis that the conviction was under
subsection (b), so we do as well. We express no view as to whether a con-
viction under subsection (a) was a crime of violence.
30
Begay, 128 S. Ct. at 1587.
5620 UNITED STATES v. ALDERMAN
“[P]urposeful, violent and aggressive”31 conduct cannot
mean that violence has to occur, because burglary, which is
listed, does not require commission of a violent act or an
intent to commit violence. The burglar may hope that the
house is empty, an arsonist may hope that the building is
empty, and an extortionist may hope that the victim just pays
the money without resistance, but they cannot count on peace-
ful submission from the victim and have to be aggressive
enough to be prepared for violent resistance. Where force is
actually used or threatened, the crime falls under the first sub-
section of the guideline,32 not the subsection which includes
the “otherwise” clause covering burglary of a dwelling, etc.
Because the first subsection would be superfluous if the “oth-
erwise” clause in the second subsection required actual vio-
lence, the “otherwise” clause cannot be construed to require
actual violence.33
We held in United States v. Christensen34 that under Begay,
statutory rape is not a “violent felony” because statutory rape
may involve consensual sexual intercourse, which is neither
31
Id. at 1586.
32
U.S.S.G. § 4B1.2 defines “crime of violence”:
(a) The term “crime of violence” means 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
(2) is 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.
33
See United States v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003)
(rejecting a reading of the catchall phrase in U.S.S.G. § 4B1.2(a)(2) that
would make the enumerated examples “mere surplusage”); 2A Norman J.
Singer, Sutherland Statutory Construction § 46:6, at 181-94 (6th ed. 2000)
(setting forth the canon of statutory construction that each word, clause,
and phrase must be given effect).
34
559 F.3d 1092 (2009).
UNITED STATES v. ALDERMAN 5621
violent nor aggressive.35 If not forcible, statutory rape may be
just someone too old with a girlfriend or boyfriend too young.
It is unlike the listed crimes in not being violent or aggressive
(if not forcible) and does not give any indication that the older
sexual partner is “the kind of person who might deliberately
point the gun and pull the trigger.”36 Nor is it necessarily even
purposeful, if the statute does not require knowledge of the
victim’s age.37 We said that the conduct, to satisfy Begay, had
to be purposeful, violent and aggressive, in the context of
deciding whether statutory rape was like or unlike burglary of
a dwelling, arson, extortion or explosives crimes for ejusdem
generis purposes.38 We of course had no occasion to decide
just what “violent, purposeful and aggressive” meant in the
context of a malum in se crime inherently more aggressive
than one or two of the listed crimes. The central holding in
Christensen is that we are to apply an ejusdem generis analy-
sis to the “otherwise” clause, and that is what we have done.
“The language of a decision is used to explain why the partic-
ular result follows from the concrete facts of the case, and
must be read with reference to the dispute before the court in
that case.”39
We distinguished Christensen in United States v. Terrell,40
on the basis that “the ‘typical’ case of statutory rape does not
involve violent and aggressive conduct,” while rape that
included sexual assault committed on a sleeping, drugged, or
deceived victim left open the “possibility that the victim may
figure out what’s really going on and decide to resist,” as may
35
Id. at 1095.
36
Begay, 128 S. Ct. at 1587.
37
See Wash. Rev. Code § 9A.44.079.
38
Christensen, 559 F.3d at 1094-95.
39
United States v. Herron, 45 F.3d 340, 342 (9th Cir. 1995) (citing Karl
N. Llewellyn, The Bramble Bush 36 (1930)); see also United States v.
Frank, 36 F.3d 898, 902 (9th Cir. 1994).
40
United States v. Terrell, 593 F.3d 1084 (9th Cir. 2010).
5622 UNITED STATES v. ALDERMAN
a victim of theft from a person.41 Likewise we held in Terrell
that burglary not in a dwelling fell within the “otherwise”
clause even though it did not fall within the designated “bur-
glary of a dwelling” crime.42 (We note that the decision in
Terrell is not yet final because the mandate has not issued.)
[4] Alderman also argues that his first degree theft convic-
tion should be considered under Washington’s 2008 statute,43
not the 2005 statute under which he was convicted,44 because
the guidelines require that the defendant be sentenced under
the version of the guidelines in effect at the time of sentencing.45
He was indeed sentenced under the version of the guidelines
then in effect, and those guidelines directed the court to look
at the crime of which he was convicted.46 He was convicted
of the 2005 crime, not the crime as it might have been had he
committed it three years after he did.
Alderman also argues that the district court should not have
imposed the upward adjustment to his guidelines calculation
for possessing the pistol he shot at Montgomery “in connec-
tion with another felony offense.” His theory is that shooting
at Montgomery nine times was not shown to be a felonious
41
Id. at 1090.
42
Id. at 1093-95.
43
In 2007, Washington’s theft statutes were amended to exclude theft of
a motor vehicle from first degree theft and create a new crime of theft of
a motor vehicle. See Wash. Rev. Code § 9A.56.030 (2008) (setting out
“theft in the first degree — other than firearm or motor vehicle”); Wash.
Rev. Code § 9A.56.065 (2008) (“A person is guilty of theft of a motor
vehicle if he or she commits theft of a motor vehicle.”).
44
Wash. Rev. Code § 9A.56.030 (2005).
45
U.S.S.G. § 1B1.11(a).
46
See Taylor, 495 U.S. at 600-02 (courts “look only to the fact of con-
viction and the statutory definition of the prior offense); James v. United
States, 550 U.S. 192, 197 (2007) (applying a categorical analysis to how
“Florida defined the crime of burglary at the time of James’ conviction”
even though a different version of the statute was in effect in 2003 when
James was sentenced).
UNITED STATES v. ALDERMAN 5623
assault because the evidence did not show that he intended to
hit Montgomery or that Montgomery was put in fear. The dis-
trict judge found that Alderman shot at Montgomery “to
frighten” and “from my review of the videotape, he accom-
plished that. That’s an assault.”47 Indeed.
AFFIRMED.
47
See also State v. Miller, 426 P.2d 986, 988 (Wash. 1967) (under
Washington law, apprehension of harm may be inferred when a person has
a weapon pointed at him).