FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30285
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00177-
ANTHONY L. LAWRENCE, WFN-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
August 5, 2010—Seattle, Washington
Filed December 10, 2010
Before: William C. Canby, Jr., David R. Thompson and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Canby
19935
UNITED STATES v. LAWRENCE 19939
COUNSEL
Aine Ahmed, Russell E. Smoot, Assistants United States
Attorneys, Spokane, Washington, for the plaintiff-appellee.
Byron G. Powell, Spokane, Washington, for the defendant-
appellant.
OPINION
CANBY, Senior Circuit Judge:
Anthony L. Lawrence was convicted by a jury of being a
felon in possession of a firearm and ammunition in violation
of 18 U.S.C. § 922(g)(1), following his involvement in a
shooting in early 2008. At sentencing, the district court deter-
mined that the Armed Career Criminal Act’s (“ACCA”)
fifteen-year mandatory minimum sentence applied in Law-
rence’s case. Lawrence now appeals his sentence, arguing that
the government failed to prove that he had three previous
qualifying convictions that would trigger the ACCA’s manda-
tory minimum.1 We have jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291, and we affirm.
1
Lawrence also appeals his conviction, contending that his inability to
view directly the witnesses who testified against him at trial, because of
his poor eyesight, denied him his Sixth Amendment confrontation right.
We reject this argument. We assume that the confrontation right requires
accommodation of visual impairments. See United States v. McMillan, 600
F.3d 434, 454 (5th Cir. 2010) (“When faced with a defendant who is
affected by blindness, the court should afford such a defendant reasonable
facilities for confronting and cross-examining the witnesses as the circum-
stances will permit.” (internal quotation omitted)). By employing a large
television screen to enable Lawrence to see the witnesses more clearly, the
district court adequately accommodated Lawrence’s impaired vision “in
the context of the necessities of trial and the adversary process,” Maryland
v. Craig, 497 U.S. 836, 850 (1990), “thereby preserv[ing] the essence of
effective confrontation,” id. at 857.
19940 UNITED STATES v. LAWRENCE
The ACCA provides that a person who is convicted of
being a felon in possession of a firearm is subject to a fifteen-
year mandatory minimum sentence if that person “has three
previous convictions . . . for a violent felony or a serious drug
offense, or both.” 18 U.S.C. § 924(e)(1). The district court
found that Lawrence previously had been convicted of not
just three, but five, qualifying offenses, including two serious
drug offenses and three violent felonies. Because Lawrence
now concedes that the two drug convictions qualify as ACCA
predicate offenses, we may affirm Lawrence’s sentence if we
conclude that he was convicted of at least one violent felony.
[1] We review de novo whether a state conviction qualifies
as a violent felony under the ACCA. United States v. Ankeny,
502 F.3d 829, 839 (9th Cir. 2007). The ACCA defines “vio-
lent felony” to include, inter alia, “any crime punishable by
imprisonment for a term exceeding one year . . . 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).2 We are guided by the precedent of both the
Supreme Court and our court in applying this definition. In
particular, we bear in mind that “the phrase ‘physical force’
means violent force—that is, force capable of causing physi-
cal pain or injury to another person.” Johnson, 130 S. Ct. at
1271. In other words, the term “violent felony” “[‘]suggests
a category of violent, active crimes.’ ” Id. (quoting Leocal v.
Ashcroft, 543 U.S. 1, 11 (2004)). We also are cognizant that,
to qualify as defining a violent felony, a state statute must
require that the physical force be inflicted intentionally, as
2
The ACCA also defines “violent felony” to include certain enumerated
offenses or an offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The enumerated offenses are not at issue here, and the
government has disclaimed any reliance on the ACCA’s “so-called ‘resid-
ual clause.’ ” Johnson v. United States, 130 S. Ct. 1265, 1274 (2010).
UNITED STATES v. LAWRENCE 19941
opposed to recklessly or negligently. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).3
To determine whether a statute “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), we first apply
the “categorical approach” set forth in Taylor v. United States,
495 U.S. 575, 600-02 (1990). See United States v. Grajeda-
Ramirez, 348 F.3d 1123, 1125 (9th Cir. 2003), overruled on
other grounds by Fernandez-Ruiz, 466 F.3d at 1132. Under
the categorical approach, we consider only “the fact of con-
viction and the statutory definition of the prior offense,” Tay-
lor, 495 U.S. at 602, not “the particular facts underlying [the]
conviction[ ],” id. at 600. “If the statute of conviction prohib-
its only conduct that includes the requisite use, threatened use
or attempted use of force, we need not look beyond the fact
of conviction to conclude that the prior offense was a crime
of violence.” Grajeda-Ramirez, 348 F.3d at 1125.
For reasons stated below, we hold that Lawrence’s convic-
tion for second-degree assault, in violation of Washington
Revised Code section 9A.36.021(1)(a) (“Section
9A.36.021(1)(a)”), categorically qualifies as a violent felony
under the ACCA. Thus, we need not decide whether Law-
3
Fernandez-Ruiz considered the mens rea required for a state statute to
qualify as a “crime of violence” under 18 U.S.C. § 16(a). Fernandez-Ruiz,
466 F.3d at 1125. Section 16(a) contains an element test that is materially
identical to the test at issue in this case. See 18 U.S.C. § 16(a) (defining
“crime of violence” as “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another”). We previously extended Fernandez-Ruiz to apply
to the definition of “crime of violence” in United States Sentencing Guide-
line (“U.S.S.G.”) § 2L1.2, because the “relevant definitions . . . are identi-
cal.” United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007);
see also U.S.S.G. § 2L1.2 n.1(B)(iii) (defining “crime of violence” to
include “any . . . offense . . . that has as an element the use, attempted use,
or threatened use of physical force against the person of another”). For the
same reason, we hold that Fernandez-Ruiz’s requirement of intentional use
of physical force applies to the ACCA’s violent felony predicate.
19942 UNITED STATES v. LAWRENCE
rence’s previous Washington convictions for either third-
degree assault, Wash. Rev. Code § 9A.36.031(1)(f), or felony
riot, Wash. Rev. Code § 9A.84.010(1), (2)(b), qualify as
ACCA predicate offenses.
[2] Section 9A.36.021(1)(a) provides that “[a] person is
guilty of assault in the second degree if he or she, under cir-
cumstances not amounting to assault in the first degree[,] . . .
[i]ntentionally assaults another and thereby recklessly inflicts
substantial bodily harm.” Wash. Rev. Code § 9A.36.021(1)(a).4
Washington courts interpret Section 9A.36.021(1)(a) to have
two elements: an act (an intentional assault) and a result
(reckless infliction of substantial bodily harm). See, e.g., State
v. Keend, 166 P.3d 1268, 1272-73 (Wash. Ct. App. 2007).
Each element requires a different mens rea, and “under [Sec-
tion] 9A.36.021(1)(a), a defendant could intend to assault
another without thereby intending to inflict substantial bodily
harm.” Id. at 1273.
[3] This is not the first time that we have considered
whether Section 9A.36.021(1)(a) requires the use of physical
force against the person of another. In United States v.
Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005), we
held that Section 9A.36.021(1)(a) defined a categorical crime
of violence within the meaning of U.S.S.G. § 2L1.2. We con-
sidered it sufficient that the statute requires the reckless inflic-
tion of substantial bodily injury, an element of statutes that we
had held were categorical crimes of violence in United States
v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir. 2000),
and United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125
(9th Cir. 2003). See Hermoso-Garcia, 413 F.3d at 1089.
4
Violation of Section 9A.36.012(1)(a) is a Class B felony punishable by
up to ten years in prison. Wash. Rev. Code §§ 9A.20.021(1)(b),
9A.36.021(2)(a). The statute thus satisfies the ACCA’s requirement that
the offense, to qualify as a violent felony, be “punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B)(i).
UNITED STATES v. LAWRENCE 19943
[4] In Leocal v. Ashcroft, 543 U.S. 1 (2004), however, the
Supreme Court held that the phrase “use of physical force”
requires “a higher degree of intent than negligent or merely
accidental conduct.” Id. at 9. Thus, driving under the influ-
ence of alcohol and causing an accidental injury did not qual-
ify as a crime of violence. Id. at 9-10. In Fernandez-Ruiz, we
interpreted Leocal also to require more than recklessness,
holding that a crime of violence “must involve the intentional
use of force against the person or property of another.”
Fernandez-Ruiz, 466 F.3d at 1132. Fernandez-Ruiz expressly
overruled cases such as Ceron-Sanchez that had held that
crimes of violence could include offenses requiring only the
reckless use of force against someone. Fernandez-Ruiz, 466
F.3d at 1126-27, 1132. By extension, Fernandez-Ruiz has
undermined the underlying reasoning of Hermoso-Garcia’s
holding that Section 9A.36.021(1)(a) requires the use of phys-
ical force against someone solely because of its element of
reckless infliction of injury.
[5] Nonetheless, Section 9A.36.021(1)(a) differs in an
important respect from the statutes at issue in Ceron-Sanchez,
Grajeda-Ramirez, and Fernandez-Ruiz. While those statutes
all required reckless infliction of injury without any inten-
tional criminal assault,5 Section 9A.36.021(1)(a) requires an
intentional assault that thereby inflicts substantial bodily
harm. Therefore, we must address a question that we had no
reason to reach in Hermoso-Garcia: whether Section
9A.36.021(1)(a) is a categorical violent felony because it
requires not just reckless infliction of substantial bodily harm,
but also an intentional assault that causes such harm. We con-
clude that this requirement of intentional criminal assault,
5
Grajeda-Ramirez, 348 F.3d at 1124-25, considered a Colorado vehicu-
lar assault statute criminalizing reckless driving that proximately causes
serious bodily injury. Both Ceron-Sanchez, 222 F.3d at 1172, and
Fernandez-Ruiz, 466 F.3d at 1125, dealt with an Arizona assault statute
that may be violated by “recklessly causing any physical injury to another
person,” Ariz. Rev. Stat. § 13-1203(A)(1) (emphasis added).
19944 UNITED STATES v. LAWRENCE
coupled with a requirement of substantial bodily harm, ren-
ders Section 9A.36.021(1)(a) a violent felony.
[6] Because the Washington criminal code does not define
assault, the Washington courts look to the common law for a
definition. See, e.g., State v. Wilson, 883 P.2d 320, 323
(Wash. 1994) (en banc). Washington courts recognize three
means of accomplishing an assault: “(1) an attempt, with
unlawful force, to inflict bodily injury upon another
[attempted battery]; (2) an unlawful touching with criminal
intent [actual battery]; and (3) putting another in apprehension
of harm whether or not the actor intends to inflict or is capa-
ble of inflicting that harm [common law assault].” Id. (inter-
nal quotation marks omitted) (bracketed alterations in
Wilson).
[7] In applying the categorical approach, “we look ‘at the
least egregious end of the state statute’s range of conduct.’ ”
United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.
2010) (brackets and citation omitted); see also Johnson, 130
S. Ct. at 1269 (looking to “the least [of a state statute’s pro-
hibited] acts” to determine whether the defendant was con-
victed of a violent felony). Here, the “least egregious” of the
three assault modalities is the second (unlawful touching with
criminal intent), which can be accomplished by merely spit-
ting on another person. See State v. Humphries, 586 P.2d 130,
133 (Wash. Ct. App. 1978).6
6
We also note that the overwhelming majority of Washington cases con-
sidering Section 9A.36.021(1)(a) have involved the “unlawful touching”
variant of assault. See, e.g., Keend, 166 P.3d at 1271, 1273 (punch in the
face); State v. Esters, 927 P.2d 1140, 1141-42 (Wash. Ct. App. 1996)
(physical abuse of a child). The categorical approach is concerned with
“the ordinary case,” and requires a showing that there is a “realistic proba-
bility,” not a “theoretical possibility” that a defendant could be convicted
for conduct not meeting the federal standard of violence. United States v.
Carson, 486 F.3d 618, 619-20 (9th Cir. 2007) (internal quotation marks
omitted). Even if there were a realistic probability of prosecution under
Section 9A.36.021(1)(a) for an assault by either attempted battery or caus-
UNITED STATES v. LAWRENCE 19945
[8] An element of “unlawful touching” would not on its
own qualify Section 9A.36.021(1)(a) as a categorical violent
felony, because the offense would not in all cases punish con-
duct that is violent in nature. See Singh v. Ashcroft, 386 F.3d
1228, 1234 (9th Cir. 2004) (holding that an Oregon harass-
ment statute was not a categorical crime of violence because
it may be violated simply by “ ‘causing spittle to land on the
person’ of another”) (citation omitted); see also Suazo Perez
v. Mukasey, 512 F.3d 1222, 1226 (9th Cir. 2008) (holding that
Washington’s fourth-degree assault statute was not a categori-
cal crime of violence because it “can be committed by non-
consensual offensive touching”); United States v. Sandoval,
390 F.3d 1077, 1081 (9th Cir. 2004) (holding that Washing-
ton’s third-degree assault statute was not a categorical crime
of violence because “it is possible to commit third-degree
assault through an unlawful touching that does not involve
substantial physical force or seriously risk physical injury”).
Section 9A.36.021(1)(a), however, requires not just an inten-
tional assault, but an intentional assault that results in substan-
tial bodily harm. The Washington criminal code defines
“substantial bodily harm” as “bodily injury which involves a
temporary but substantial disfigurement, or which causes a
temporary but substantial loss or impairment of the function
of any bodily part or organ, or which causes a fracture of any
ing apprehension of harm, our cases indicate that those variants, at least
when those assaults thereby inflict or are likely to inflict substantial bodily
harm, satisfy the ACCA as predicate violent felonies. See, e.g., United
States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (concluding that
a California assault statute, “[b]y criminalizing ‘unlawful attempt[s] . . .
to commit a violent injury on the person of another’ with . . . force likely
to produce serious injury, . . . requires at least ‘attempted use . . . of physi-
cal force against the person of another’ ” (first and last omissions in Gra-
jeda) (citation omitted)); United States v. Juvenile Female, 566 F.3d 943,
947-48 (9th Cir. 2009) (holding that “a defendant charged [with] assault
resulting in bodily injury[ ] necessarily must have committed an act of
force in causing the injury,” where that assault could be accomplished
through attempted battery or “caus[ing] reasonable apprehension of imme-
diate bodily harm”).
19946 UNITED STATES v. LAWRENCE
bodily part.” Wash. Rev. Code § 9A.04.110(4)(b). We have
held that assault statutes penalizing intentional conduct that
results or is likely to result in such bodily injury necessarily
require force that “go[es] beyond the ‘least touching,’ and
represents ‘actual force’ that is violent in nature.” Grajeda,
581 F.3d at 1192; see also Juvenile Female, 566 F.3d at 948
(“[A] defendant charged [with] assault resulting in bodily
injury[ ] necessarily must have committed an act of force in
causing the injury.”).7
[9] It may be possible to dream up unusual scenarios in
which a non-violent act, such as spitting, could thereby result
in “substantial bodily injury.” The Supreme Court has made
it clear, however, that categorical analysis
requires more than the application of legal imagina-
tion to a state statute’s language. It requires a realis-
tic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls out-
side the generic definition of a crime. To show that
realistic possibility, an offender, of course, may
show that the statute was so applied in his own case.
But he must at least point to his own case or other
cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for which
he argues.
7
In Grajeda we interpreted a California statute requiring that assault be
committed “ ‘by any means of force likely to produce great bodily inju-
ry.’ ” 581 F.3d at 1192 (quoting Cal. Penal Code § 245(a)(1)) (emphasis
added). The requirement in the Washington statute at issue that the inflic-
tion of substantial bodily harm must have been “recklessly” inflicted
encompasses a similar concept, as recklessness requires a person to
“know[ ] of and disregard a substantial risk that a wrongful act may
occur.” Wash. Rev. Stat. § 9A.08.010(1)(c) (emphasis added). Thus, Sec-
tion 9A.36.021(1)(a) will necessarily require violent force because only
such force will involve a “substantial risk” of inflicting “substantial bodily
harm.”
UNITED STATES v. LAWRENCE 19947
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007).
Lawrence does not claim that his own Section
9A.36.021(1)(a) conviction involved non-violent conduct.
Lawrence also has pointed to no Washington case applying
Section 9A.36.021(1)(a) to non-violent conduct, and we have
found no such case on our own.8 Lawrence accordingly fails
to meet the standard specified by Duenas-Alvarez. See also
Laurico-Yeno, 590 F.3d at 822 (holding that a California stat-
ute “penaliz[ing] the intentional use of force that results in a
traumatic condition” was a categorical crime of violence,
rejecting as hypothetical the defendant’s contention that a
“conviction could result from a non-violent use of force” that
nonetheless resulted in injury). We conclude, therefore, that
there is no realistic probability that a person could be con-
victed of violating Section 9A.36.021(1)(a) without having
committed a violent act.
[10] In addition, because Section 9A.36.021(1)(a) requires
an intentional assault, it is of no moment that it requires that
substantial bodily harm be inflicted only with recklessness. In
Grajeda, we held that a California assault statute was a cate-
gorical crime of violence even though the statute did not
require that the defendant intended to cause specific injury.
Grajeda, 581 F.3d at 1195. We explained that “[w]hile this
formulation of the necessary mens rea does not fit neatly with
the standard articulated in Fernandez-Ruiz, [the statute’s
requirement of intentional use of force] satisfies the concerns
animating Leocal and Fernandez-Ruiz that the proscribed
8
State v. Shepple, 145 Wash. App. 1046, 2008 WL 2792016 (Wash.
App. Div. 2008) (unpublished) is the closest case we could find to one in
which a defendant was prosecuted under Section 9A.36.021(1)(a) for
intentional conduct that was non-violent. The defendant in Shepple was
charged with second degree assault after pushing an individual who then
“fell backward and was hit by a passing vehicle . . . suffer[ing] serious
injuries.” Id. at *1. But the opinion gave no indication of how forceful the
“push” was, so it could have been quite violent. Moreover, in the end, the
defendant was convicted only of the lesser included offense of third
degree assault. Id. at *2. Thus, Shepple does not affect our conclusion.
19948 UNITED STATES v. LAWRENCE
conduct be ‘violent’ and ‘active,’ and the use of force not
merely accidental.” Id. at 1195. So, too, here. Section
9A.36.021(1)(a) does not punish accidental conduct, but
rather requires an intentional assault so violent as to inflict
substantial bodily harm. Grajeda makes clear that, so long as
the assault was intentional and substantial bodily injury was
likely, no intent to commit the resulting harm is required; it
follows a fortiori that a reckless infliction of substantial bod-
ily harm in the course of an intentional assault qualifies as a
crime of violence, as recklessness requires a substantial risk
of harm.
[11] We accordingly hold that a violation of Section
9A.36.021(1)(a) qualifies as a violent felony under the cate-
gorical approach because it “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). Lawrence’s
conviction and sentence are
AFFIRMED.