FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 10-30148
Plaintiff-Appellee/Cross-Appellant, and
v. 10-30149
RYAN MICHAEL SNYDER, D.C. No.
Defendant-Appellant/Cross- 1:09-cr-30033-
Appellee. OMP-1
OPINION
Appeals from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submission deferred May 6, 2011*
Submitted June 30, 2011
Portland, Oregon
Filed June 30, 2011
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bea;
Concurrence by Judge Tashima
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
8867
UNITED STATES v. SNYDER 8869
COUNSEL
Donald L. Scales, Medford, Oregon, Attorney for Snyder.
8870 UNITED STATES v. SNYDER
Douglas W. Fong, Assistant U.S. Attorney, Medford, Oregon,
Kelly A. Zusman, Assistant U.S. Attorney, Portland, Oregon,
Attorneys for the United States.
OPINION
BEA, Circuit Judge:
Ryan Snyder 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 does not appeal his conviction.
At sentencing, the government requested a sentencing
enhancement under the Armed Career Criminal Act
(“ACCA”), alleging Snyder had three prior convictions for
violent felonies as defined in 18 U.S.C. § 924(e)(2):
(1) On or about October 23, 2003, in the Josephine
County Circuit Court, State of Oregon, Case No. 02-
CR-0791, for burglary in the second degree and
assault in the second degree, with a 50-month sen-
tence;
(2) On or about February 11, 2000, in the Josephine
County Circuit Court, State of Oregon, Case No. 99-
CR-0801, for burglary in the second degree, with a
6-month sentence;
(3) On or about May 9, 1999, in the Josephine
County Circuit Court, State of Oregon, Case No. 99-
CR-0362, for felony attempt to elude, with a 6-
month sentence.
The district court held Snyder’s October 23, 2003 convic-
tion for assault in the second degree was a predicate offense
under ACCA. Neither party appeals that determination. We
UNITED STATES v. SNYDER 8871
have previously held that assault in the second degree in Ore-
gon is a violent felony for ACCA. United States v. Crews, 621
F.3d 849, 852-53 (9th Cir. 2010).
The district court also held the February 11, 2000 convic-
tion for burglary in the second degree under Oregon Revised
Statutes (“ORS”) § 164.215 was a predicate offense under
ACCA. Snyder appeals that determination.
Finally, the district court held the May 9, 1999 conviction
for felony attempt to elude the police ORS § 811.540(1) was
not a predicate offence under ACCA. The government cross-
appeals that determination.
Having found only two predicate offences, instead of three
as required for a sentencing enhancement under ACCA, the
district court did not apply the mandatory minimum sentence
of 15 years (180 months) in 18 U.S.C. § 924(e)(2), and
instead sentenced Snyder to the bottom of the Guidelines’
Range—110 months.1
We review a district court’s decision as to whether a prior
conviction is a predicate felony under ACCA de novo. United
States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009). We affirm
in part and reverse in part.
A. ACCA
ACCA defines a “violent felony” as any crime “punishable
by imprisonment for a term exceeding one year” that:
(I) has as an element the use, attempted use, or
1
Under ACCA a person convicted of violating 18 U.S.C. § 922(g) faces
a mandatory minimum sentence of 15 years if he has three or more previ-
ous convictions for “a violent felony or a serious drug offense, or both,
committed on occasions different from one another . . . .” 18 U.S.C.
§ 924(e).
8872 UNITED STATES v. SNYDER
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 pre-
sents a serious potential risk of physical injury to
another . . . .
18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized
portion is known as ACCA’s “residual clause.”
B. Although burglary in the second degree under ORS
§ 164.215 is not categorically a violent felony under
ACCA, Snyder’s conviction is a violent felony
under the modified categorical approach.
[1] We have already determined that burglary in the sec-
ond degree under Oregon law “is not a categorical burglary
for purposes of ACCA because it encompasses crimes that
fall outside the federal definition of generic burglary.” United
States v. Grisel, 488 F.3d 844, 851 (9th Cir. 2007) (en banc).
Under the modified categorical approach, however, the
original indictment together with the judgment of conviction
proved Snyder necessarily admitted to facts constituting
generic burglary. See Shepard v. United States, 544 U.S. 13,
16 (2005). Because the facts admitted constitute generic bur-
glary, that alone is enough for it to be a predicate crime under
ACCA. Congress decided that certain crimes were inherently
violent (“burglary, arson, or extortion, involves use of explo-
sives”), and thus there is no need to also prove the conduct
otherwise presented “a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B).
The indictment to which Snyder pleaded no contest in 2000
charged:
COUNT 3 (ORS 164.215 C-FEL)
UNITED STATES v. SNYDER 8873
The defendant, on or about September 15, to Sep-
tember 16, 1999, in Josephine County, Oregon, did
unlawfully and knowingly enter and remain in a
building located at 1341 Rogue River Highway,
(Friendly Motors) with the intent to commit the
crime of theft therein.
The judgment of conviction stated Snyder pleaded no contest
to Count 3.
[2] The federal generic definition of “burglary” under 18
U.S.C. § 924(e)(2)(B)(ii) is an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent
to commit a crime. Taylor v. United States, 495 U.S. 575, 598
(1990). “[A]n offense constitutes ‘burglary’ for purposes of a
§ 924(e) sentence enhancement if either its statutory defini-
tion substantially corresponds to ‘generic’ burglary, or the
charging paper and jury instructions actually required the jury
to find all the elements of generic burglary in order to convict
the defendant.” Id. at 602. Note that under the generic defini-
tion, the defendant needs only to enter or remain within a
“building” not a home. This is because it is the mere “possi-
bility of a violent confrontation” that makes burglary and
attempted burglary violent felonies. Id. at 588, 597.
[3] Snyder makes two arguments as to why the district
court erred in finding that his burglary conviction was a predi-
cate offense under ACCA. First, he says that because he
pleaded no contest to the above indictment, he has not
pleaded guilty to all facts required to constitute generic bur-
glary. Yet both the Supreme Court and this court have already
held that convictions based on “no contest” pleas may estab-
lish ACCA predicate offenses under Taylor. Shepard v.
United States, 544 U.S. 13, 19 (2005); United States v. Smith,
390 F.3d 661, 665 (9th Cir. 2004) (“no contest” plea and con-
viction thereon for California burglary qualified as a prior
violent felony under ACCA); United States v. Stephens, 237
F.3d 1031, 1033-34 (9th Cir. 2001) (“no contest” plea and
8874 UNITED STATES v. SNYDER
conviction thereon for burglary qualified as “violent felony”
under ACCA). This is because a defendant who pleads guilty
or no contest to a count admits all facts alleged in that count.
See Stephens, 237 F.3d at 1033-34.
[4] Under Oregon law, “[a] judgment following entry of a
no contest plea is a conviction of the offense to which the plea
is entered.” ORS § 135.345. Other than traffic offenses, Ore-
gon law provides that when a defendant pleads no contest, the
judge must inform him of the rights he is waiving and the
effect of the plea. One effect specified is that, “[w]hen the
offense charged is one for which a different or additional pen-
alty is authorized by reason of the fact that the defendant may
be adjudged a dangerous offender, that this fact may be estab-
lished after a plea in the present action, thereby subjecting the
defendant to different or additional penalty.” ORS
§ 135.385(c). A plea of “no contest” is different than a plea
of guilty under Oregon law in that “[e]vidence that a person
has entered a plea of no contest in the manner described in
ORS 153.061(3)(b) to a charge of a traffic offense shall not
be admitted as evidence in the trial of a subsequent civil
action arising out of the same accident or occurrence.” ORS
§ 41.905. But the Oregon statutes do not otherwise distinguish
between guilty and no contest pleas as to misdemeanors ver-
sus felonies.
[5] Second, Snyder contends that because the term “build-
ing” in Oregon’s second degree burglary statute, ORS
§ 164.215, is defined broadly, this court cannot presume the
word “building” is intended in its ordinary sense. This is true
under a categorical approach. Under Oregon law, a building,
“in addition to its ordinary meaning includes any booth, vehi-
cle, boat, aircraft or other structure adapted for overnight
accommodation of persons or for carrying on business there-
in.” ORS § 164.205(1). See also Mayer, 560 F.3d at 959
(holding that first degree burglary under Oregon law is
“broader than the definition of generic burglary because the
statute does not limit burglary to ‘building[s] or structure[s],’
UNITED STATES v. SNYDER 8875
but also includes non-structures (such as booths, vehicles,
boats, and aircraft) that are regularly or intermittently used as
lodgings”) (brackets in original); State v. Keys, 419 P.2d 943
(Or. 1966) (upholding a second degree burglary conviction
for entering a public telephone booth to steal change from the
coin boxes).
[6] But the burglary indictment in Snyder’s case did not
simply allege he entered or remained in any unnamed build-
ing. It designated a specific building occupied by a business:
“a building located at 1341 Rogue River Highway, (Friendly
Motors).” In a similar case, this court held that an indictment
that charged entering or remaining unlawfully “in a building,
Beaver Sports, 3480 College Road,” was sufficient to allege
a generic burglary under Taylor. Stephens, 237 F.3d at 1034.
For purposes of the modified categorical approach, the facts
alleged in the indictment narrowed Alaska’s general defini-
tion of a building. Using the term “building” together with a
street address provided adequate proof, based solely on the
documents of conviction, that the defendant was convicted of
the entering or remaining in a “building” as that term is com-
monly used, and as is meant in the generic definition of bur-
glary in Taylor. Id.
C. Felony attempt to elude police under ORS
§ 811.540(1) is a violent felony under ACCA.
The government contends the district court erred in holding
Snyder’s conviction for felony attempt to elude police under
ORS § 811.540(1) was not a violent felony under ACCA’s
“residual clause,” which defines a violent felony as a crime
that “involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
The indictment in Snyder’s case, to which he pleaded no
contest, alleged that:
The defendant, on or about May 9, 1999, in Jose-
phine County, Oregon, being an operator of a motor
8876 UNITED STATES v. SNYDER
vehicle upon Swarthout Drive, and having been
given a signal to stop by a police officer, did unlaw-
fully and knowingly, while still in the vehicle,
attempt to elude a pursuing police officer.
Furthermore, the Pre-Sentence Report, to which Snyder did
not object, stated:
On May 9, 1999, a victim reported to the Grants Pass
Department of Public Safety that his Mazda sedan
had been stolen. A few hours later, an officer
observed the stolen vehicle and attempted a traffic
stop by turning on his overhead lights. The defen-
dant accelerated away from the officer and after a
short pursuit, parked the car in a residential drive-
way. The defendant got out of the car and attempted
to flee on foot. After a short foot chase, and after the
defendant fell into a creek, he was taken into cus-
tody.
No other documents of conviction were admitted to prove the
facts underlying the conviction.
[7] In United States v. Sykes, 598 F.3d 334 (7th Cir. 2010),
aff’d, ___ U.S. ___, 2011 WL 2224437 (June 9, 2011), the
defendant pleaded guilty to being a felon in possession of a
weapon. The government sought a sentence enhancement
under ACCA. The Seventh Circuit held that “fleeing police in
a vehicle in violation of Ind. Code § 35-44-3-3(b)(1)(A) is
sufficiently similar to ACCA’s enumerated crimes in kind, as
well as the degree of risk posed, and counts as a violent fel-
ony under ACCA.” Id. at 339. The Supreme Court affirmed,
holding that vehicle flight, as proscribed by Indiana Code
§ 35-44-3-3(b)(1)(A) (2004), is a violent felony for purposes
of ACCA, 18 U.S.C. § 924(e), because, as a categorical mat-
ter, the prohibition falls within § 924(e)(2)(B)(ii)’s residual
clause in that vehicle flight presents a serious potential risk of
physical injury to another. Sykes, 2011 WL 2224437, at *9.
UNITED STATES v. SNYDER 8877
[8] The statute at issue in Sykes is similar enough to the
statute at issue here that the Supreme Court’s Sykes ruling
controls this case. ORS 811.540(1) provides:
(1) A person commits the crime of fleeing or
attempting to elude a police officer if:
(a) The person is operating a motor vehicle;
and
(b) A police officer who is in uniform and
prominently displaying the police officer’s
badge of office or operating a vehicle
appropriately marked showing it to be an
official police vehicle gives a visual or
audible signal to bring the vehicle to a stop,
including any signal by hand, voice, emer-
gency light or siren, and either:
(A) The person, while still in the vehicle,
knowingly flees or attempts to elude a
pursuing police officer; or
(B) The person gets out of the vehicle
and knowingly flees or attempts to elude
the police officer.
Similarly, the statute Sykes was convicted of, Ind. Code
§ 35-44-3-3(b)(1)(A), makes the following a felony:
A person who knowingly or intentionally:
flees from a law enforcement officer after the officer
has, by visible or audible means, including operation
of the law enforcement officer’s siren or emergency
lights, identified himself or herself and ordered the
person to stop; [and] the person uses a vehicle to
commit the offense.
8878 UNITED STATES v. SNYDER
[9] Accordingly, we reverse the district court’s ruling that
Snyder’s prior conviction for felony attempt to elude the
police under ORS § 811.540(1) was not a violent felony under
ACCA. We affirm the district court’s ruling that Snyder’s
conviction for second degree burglary under ORS § 164.215
qualified as a violent felony under ACCA. Because Snyder
has three prior violent felony convictions, we remand this
case to the district court for resentencing under the mandatory
minimum sentence of 15 years (180 months) in 18 U.S.C.
§ 914(e)(1), with credit for time served.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.
TASHIMA, Circuit Judge, concurring:
I concur fully in the majority opinion, but concur in Part B
only under the compulsion of United States v. Stephens, 237
F.3d 1031 (9th Cir. 2001).
In United States v. Grisel, 488 F.3d 844, 851 (9th Cir.
2007) (en banc), we recognized that the Oregon definition of
burglary was broader than the generic definition because,
under Oregon law, a “building,” “in addition to its ordinary
meaning includes any booth, vehicle, boat, aircraft, or other
structure adapted for overnight accommodation of persons or
for carrying on business therein.” Maj. Op. at 8874 (quoting
Or. Rev. Stat. § 164.205(1)). But, relying on Stephens, 237
F.3d at 1034, the majority holds that “[f]or purposes of the
modified categorical approach, the facts alleged in the indict-
ment narrowed Oregon’s general definition of a building.
Using the term building together with a street address pro-
vided adequate proof . . . that the defendant had pleaded guilty
to entering or remaining in a ‘building’ as that term is com-
UNITED STATES v. SNYDER 8879
monly used, and as is meant in the generic definition of bur-
glary in Taylor.”1 Maj. Op. at 8875.
But just because the broad statutory term “building” is
accompanied by a street address does not necessarily make
the statutory term more narrow or precise. “Building” still
means “building,” as defined in the statute. The notion that,
for purposes of applying the modified categorical approach,
accompanying the statutory term “building” with a street
address narrows the meaning of the term to mean less than
what the statute defines it to mean does not withstand scru-
tiny. The indictment could just as well have alleged that the
defendant entered a trailer located at 1341 Rogue River High-
way. Any term can be accompanied by a street address. For
all we know from the indictment, 1341 Rogue River Highway
could be the address of a five or ten acre lot full of trucks,
trailers, RVs, booths, and sheds, as well as the site of a
generic building. Thus, for purposes of the modified categori-
cal approach, accompanying the statutory term “building”
with a street address does nothing, categorically, to aid the
analysis. In short, I disagree that the mere accompaniment of
the statutory term “building” with a street address necessarily
narrows the statutory term to the “commonly used” term
“meant in the generic definition of burglary in Taylor.”
Nonetheless, I recognize that we are bound by Stephens
mistaken notion that use of a street address narrows the statu-
tory term. I, thus, reluctantly concur.
1
The indictment alleged that the defendant entered “a building located
at 1341 Rogue River Highway, (Friendly Motors) with the intent to com-
mit the crime of theft therein.”