FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10563
Plaintiff-Appellee,
D.C. No.
v. 1:12-cr-00312-
LJO-SKO-1
MICHAEL ANTHONY MARTINEZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
September 10, 2014—San Francisco, California
Filed November 14, 2014
Before: Mary M. Schroeder, John B. Owens,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Owens
2 UNITED STATES V. MARTINEZ
SUMMARY*
Criminal Law
Affirming a fifteen-year mandatory-minimum sentence
imposed under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), the panel held that the defendant’s prior
conviction under California Vehicle Code § 2800.2 for
vehicle flight from a pursuing peace officer was a “violent
felony” under the ACCA’s residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii).
The panel rejected as foreclosed the defendant’s
arguments that the ACCA’s residual clause is
unconstitutionally vague as applied to his prior conviction for
vehicle flight and that the district court’s application of the
residual clause violated Apprendi v. New Jersey. Because the
residual clause as applied to § 2800.2 is not ambiguous, the
panel held that the rule of lenity is not applicable.
COUNSEL
Peggy Sasso (argued) and Janet Bateman, Assistant Federal
Defenders; Heather E. Williams, Federal Defender, Federal
Public Defender’s Office, Fresno, California, for Defendant-
Appellant.
Kimberly A. Sanchez (argued) and Laurel J. Montoya,
Assistant United States Attorneys; Benjamin B. Wagner,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MARTINEZ 3
United States Attorney; Camil A. Skipper, Appellate Chief,
Office of the United States Attorney, Fresno, California, for
Plaintiff-Appellee.
OPINION
OWENS, Circuit Judge:
Michael Anthony Martinez appeals his fifteen-year
mandatory-minimum sentence imposed under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
Martinez contends that the district court erred in concluding
that his prior conviction under California Vehicle Code
§ 2800.2, vehicle flight from a pursuing peace officer, was a
“violent felony” under the ACCA’s residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii). We affirm.1
I. BACKGROUND
Martinez pled guilty to being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the parties disputed whether Martinez’s criminal
history included three prior “violent felony” convictions. If
it did, he would qualify as an armed career criminal and face
the ACCA’s fifteen-year mandatory-minimum sentence.
1
We grant Martinez’s requests for judicial notice of our own records
and district court records in other cases. See Fed. R. Evid. 201(b)(2)
(permitting judicial notice of a fact that “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)
(“[A] court may take judicial notice of its own records in other cases, as
well as the records of an inferior court in other cases.”).
4 UNITED STATES V. MARTINEZ
Martinez conceded that he had two prior violent felonies for
domestic violence, but argued that his 2006 California
Vehicle Code § 2800.2 conviction was not a violent felony
under the ACCA. The district court held that Martinez’s
conviction under section 2800.2 was an ACCA predicate
violent felony, and imposed a mandatory-minimum sentence
of fifteen years.
II. DISCUSSION
We review de novo whether California Vehicle Code
§ 2800.2 is an ACCA predicate violent felony. See United
States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc).
A. Legal Framework of the ACCA’s Residual Clause
A defendant with three prior “violent felony” convictions
faces a fifteen-year mandatory-minimum sentence if
convicted of violating 18 U.S.C. § 922(g). See 18 U.S.C.
§ 924(e). “Violent felony” is defined, in relevant part, as any
crime that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .” Id.
§ 924(e)(2)(B)(ii) (emphasis added). This last italicized
phrase is known as the “residual clause.” United States v.
Snyder, 643 F.3d 694, 697 (9th Cir. 2011).
A two-prong test determines whether an offense is
categorically “violent” under the residual clause.2 United
2
We apply the “categorical approach,” which “consider[s] the offense
generically, . . . examin[ing] it in terms of how the law defines the offense
and not in terms of how an individual offender might have committed it
on a particular occasion.” Begay v. United States, 553 U.S. 137, 141
UNITED STATES V. MARTINEZ 5
States v. Chandler, 743 F.3d 648, 650 (9th Cir. 2014) (per
curiam). “First, the conduct encompassed by the elements of
the offense, in the ordinary case, must present[ ] a serious
potential risk of physical injury to another.” Id. (alteration in
original) (internal quotation marks omitted). “Second, the
state offense must be ‘roughly similar, in kind as well as in
degree of risk posed’ to those offenses enumerated at the
beginning of the residual clause—burglary of a dwelling,
arson, extortion, and crimes involving explosives.” Id.
(internal quotation marks omitted). “The inquiry under [the]
first prong is straightforward.” Id. “But the second
requirement—whether the state offense is ‘roughly similar, in
kind as well as in degree of risk posed’ to those offenses
enumerated at the beginning of the residual clause—is more
complicated, and must be addressed in light of the Supreme
Court’s quartet of ACCA cases.” Id. at 650–51 (internal
quotation marks omitted).
In James, the Supreme Court held that the second prong
should focus on whether the risk posed by the state offense
“is comparable to that posed by its closest analog among the
enumerated offenses.” James v. United States, 550 U.S. 192,
203 (2007). However, in Begay, the Court held that a state
conviction for driving under the influence was not
categorically violent under the ACCA because it did not
“involve purposeful, violent, and aggressive conduct.”
Begay, 553 U.S. at 144–45 (internal quotation marks
omitted). Likewise, in Chambers, the Court applied Begay’s
(2008). For “divisible” statutes, which permit conviction under alternative
sets of elements, a court may apply a “modified categorical approach” and
also consult a limited set of documents. See Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). The parties do not contend that the
modified categorical approach applies here.
6 UNITED STATES V. MARTINEZ
“purposeful, violent, and aggressive conduct” formula to
conclude that a state conviction for failing to report for penal
confinement was not categorically violent under the ACCA.
Chambers v. United States, 555 U.S. 122, 128 (2009)
(internal quotation marks omitted). Finally, in Sykes, the
Court’s most recent ACCA residual clause opinion, the Court
returned to focusing on the level of risk posed by the state
offense at issue as compared with the level of risk posed by
the enumerated offenses. Sykes v. United States, 131 S. Ct.
2267, 2273–75 (2011) (“In general, levels of risk divide
crimes that qualify from those that do not.”).
We have interpreted Sykes to mean that Begay’s
“‘purposeful, violent, and aggressive formulation’ is only
dispositive in cases involving a strict liability, negligence, or
recklessness offense—such as driving under the influence—
and does not apply to intentional crimes.” Chandler, 743
F.3d at 651 (internal quotation marks omitted).
B. Application to California Vehicle Code § 2800.2
With this legal framework in mind, we must determine
whether California Vehicle Code § 2800.2 is “violent” under
the ACCA. One violates section 2800.2 if he “flees or
attempts to elude a pursuing peace officer in violation of
Section 2800.1 and the pursued vehicle is driven in a willful
or wanton disregard for the safety of persons or property.”3
Cal. Veh. Code § 2800.2(a). Section 2800.2 incorporates, and
3
Section 2800.2 defines “willful or wanton disregard for the safety of
persons or property” as including, but not limited to, driving during which
“three or more [traffic] violations [occur] . . . or damage to property
occurs.” Cal. Veh. Code § 2800.2(b).
UNITED STATES V. MARTINEZ 7
therefore requires, a violation of section 2800.1, which
provides:
Any person who, while operating a motor
vehicle and with the intent to evade, willfully
flees or otherwise attempts to elude a pursuing
peace officer’s motor vehicle, is guilty of a
misdemeanor . . . if all of the following
conditions exist:
(1) The peace officer’s motor vehicle is
exhibiting at least one lighted red lamp visible
from the front and the person either sees or
reasonably should have seen the lamp.
(2) The peace officer’s motor vehicle is
sounding a siren as may be reasonably
necessary.
(3) The peace officer’s motor vehicle is
distinctively marked.
(4) The peace officer’s motor vehicle is
operated by a peace officer, . . . and that peace
officer is wearing a distinctive uniform.
Cal. Veh. Code § 2800.1(a). A violation of section 2800.2 is
a felony, while a violation of section 2800.1 is a
misdemeanor. See People v. Acevedo, 129 Cal. Rptr. 2d 270,
272 (Ct. App. 2003).
In Sykes, the Supreme Court considered a similar Indiana
statute and held that “[f]elony vehicle flight is a violent
felony for purposes of ACCA” under the residual clause.
8 UNITED STATES V. MARTINEZ
Sykes, 131 S. Ct. at 2277. The Court reasoned that vehicle
flight from police inherently poses a serious potential risk to
the safety of pedestrians and other drivers, as well as a risk of
violent confrontation with police. Id. at 2273–74. The Court
also reasoned that the degree of danger involved in vehicle
flight is comparable to, and maybe even greater than, the
dangers involved in the residual clause’s enumerated offenses
of arson and burglary. Id. at 2273–75. The Court
distinguished Begay on the ground that the Indiana vehicle
flight statute “has a stringent mens rea requirement.” Id. at
2275–76. Under the Indiana statute, “[v]iolators must act
‘knowingly or intentionally,’” while the statute in Begay was
not “violent” in part because it did not require purposeful or
deliberate conduct and was similar to strict liability,
negligence, and recklessness crimes. Id. (quoting Ind. Code
§ 35-44-3-3(a)). Following Sykes, we held that a conviction
under Oregon’s vehicle flight statute is also a violent felony
under the ACCA. See Snyder, 643 F.3d at 699–700 (“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.”); see also United States v. Cisneros, 763 F.3d 1236,
1239–40 (9th Cir. 2014) (holding that Snyder remains good
law after Descamps).
Despite the Supreme Court’s holding in Sykes that vehicle
flight is a violent felony under the ACCA, Martinez contends
that section 2800.2 is distinguishable because it has a lesser
mens rea than the Indiana statute. Specifically, Martinez
contends that the California statute allows for a conviction for
recklessly evading the police, while the Indiana statute
requires knowingly or intentionally evading the police, and
therefore Begay’s requirement of “purposeful, violent, and
aggressive” conduct, rather than the analysis in Sykes,
applies.
UNITED STATES V. MARTINEZ 9
Martinez draws a distinction where there is none. The
California vehicle flight statute, like the Indiana statute in
Sykes, requires intentional conduct. The plain language of
section 2800.1 covers “[a]ny person who, while operating a
motor vehicle and with the intent to evade, willfully flees or
otherwise attempts to elude a pursuing peace officer’s motor
vehicle.” Cal. Veh. Code § 2800.1(a) (emphasis added); see
also Judicial Council of Cal. Crim. Jury Instruction No. 2181
(providing in model jury instruction for sections 2800.1(a)
and 2800.2 that “[s]omeone commits an act willfully when he
or she does it willingly or on purpose”).
Nonetheless, Martinez argues the California vehicle flight
statute requires only a mens rea of recklessness because it can
be violated whether or not an individual knows that he is
evading a police officer so long as a reasonable person would
have known he was being pursued by police. Martinez relies
on section 2800.1’s requirement that “the person either sees
or reasonably should have seen” the lighted red lamp on the
police officer’s vehicle. Cal. Veh. Code § 2800.1(a)(1)
(emphasis added). Martinez also relies on California case
law, which supports that an individual can be convicted under
sections 2800.1 or 2800.2 if he reasonably should have
known he was being pursued by the police.4 These
4
See, e.g., People v. Hudson, 136 P.3d 168, 173 (Cal. 2006) (holding
that “for purposes of section 2800.1, a pursuing peace officer’s vehicle is
‘distinctively marked’ if its outward appearance during the pursuit
exhibits, in addition to a red light and a siren, one or more features that are
reasonably visible to other drivers and distinguish it from vehicles not
used for law enforcement so as to give reasonable notice to the fleeing
motorist that the pursuit is by the police”); People v. Estrella, 37 Cal.
Rptr. 2d 383, 388 (Ct. App. 1995) (explaining that the relevant question
in determining whether an officer’s vehicle is “distinctively marked” is
10 UNITED STATES V. MARTINEZ
requirements, however, concern alerting an individual that
pursuit is by the police and do not undermine the conclusion
that the California vehicle flight statute requires intentionally
evading the police. See Hudson, 136 P.3d at 173 n.2
(“‘Although the legislative history of section 2800.1 does not
reflect the reason for the statute’s requirement the vehicle be
distinctively marked, it is not mere speculation to assume that
the purpose is to protect the public at large and women in
particular from being required to stop for anyone at night
flashing a red light and sounding a siren.’” (quoting Estrella,
37 Cal. Rptr. 2d at 388 n.4)).
We conclude that the California vehicle flight statute is
sufficiently similar to the Indiana vehicle flight statute in
Sykes, as well as the Oregon vehicle flight statute in Snyder,
for those cases to require us to reject Martinez’s mens rea
argument. For example, even though the Supreme Court did
not expressly consider it, Indiana case law holds that the
statute at issue in Sykes also allows a defendant to be
convicted if he “knew or had reason to know that the person
resisted was a police officer.” Mason v. State, 944 N.E.2d 68,
71 (Ind. Ct. App. 2011) (emphasis added); see also Sykes,
131 S. Ct. at 2280 (Thomas, J., concurring) (citing Mason).
In addition, like the California statute, the Indiana and
Oregon statutes also require that the law enforcement officer
alert the defendant of the officer’s presence and that the
defendant knowingly or intentionally flee law enforcement in
a vehicle. See Sykes, 131 S. Ct. at 2271 (citing Ind. Code
§ 35-44-3-3); Snyder, 643 F.3d at 699 (citing Or. Rev. Stat.
§ 811.540(1)).
“does the person know or reasonably should know that a police vehicle is
in pursuit?”).
UNITED STATES V. MARTINEZ 11
Our decision in Penuliar v. Mukasey, 528 F.3d 603,
609–10 (9th Cir. 2008), which held that a violation of section
2800.2 was not a “crime of violence” in the immigration
context under 18 U.S.C. § 16, is no longer good law in light
of the Supreme Court’s decision in Sykes. As discussed
above, Sykes held that vehicle flight from police inherently
poses a serious potential risk, and that knowingly and
intentionally evading police therefore constitutes a violent
felony under the ACCA. See Sykes, 131 S. Ct. at 2273–74.
We cannot reconcile the holding in Penuliar with the
Supreme Court’s opinion in Sykes, so Sykes, not Penuliar,
binds us. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc).
Moreover, following Sykes, other circuits have uniformly
held that vehicle flight is a “violent felony” or “crime of
violence.”5 The Eighth Circuit’s decision in United States v.
Pate, 754 F.3d 550, 555–56 (8th Cir. 2014), which held that
Minnesota’s vehicle flight statute was a violent felony under
5
See, e.g., United States v. Jones, 740 F.3d 127, 137–38 (3d Cir. 2014)
(Pennsylvania misdemeanor vehicle flight is a “crime of violence” under
the Sentencing Guidelines); United States v. Petite, 703 F.3d 1290, 1292,
1301 (11th Cir. 2013) (Florida vehicle flight, which requires “willfully”
eluding law enforcement, is a “violent felony” under the ACCA); United
States v. Tillery, 702 F.3d 170, 176–77 (4th Cir. 2012) (Virginia vehicle
flight is a “crime of violence” under the Sentencing Guidelines); United
States v. Doyle, 678 F.3d 429, 432, 437 (6th Cir. 2012) (Tennessee vehicle
flight, which requires “intentionally” eluding law enforcement, is a
“violent felony” under the ACCA); United States v. Thomas, 643 F.3d
802, 803, 806 (10th Cir. 2011) (Kansas vehicle flight, which requires
“willfully” eluding law enforcement, is a “crime of violence” under the
Sentencing Guidelines). There is no meaningful distinction between the
definition of “violent felony” in the ACCA and “crime of violence” in the
Sentencing Guidelines’ Career Offender enhancement. See Chandler, 743
F.3d at 650.
12 UNITED STATES V. MARTINEZ
the ACCA, is particularly instructive. Like Martinez, the
defendant in Pate argued that the Minnesota statute “lack[ed]
a knowing or intentional mens rea requirement.” Id. at 555.
The Eighth Circuit rejected this argument because “[t]he
statute expressly require[d] proof of ‘intent to attempt to
elude a peace officer.’” Id. (quoting Minn. Stat. § 609.487,
subd. 1). Further, the Minnesota statute, similarly to section
2800.2, allows for a conviction if an individual reasonably
should have known he was being pursued by the police. See
id. at 554 (Minnesota statute prohibits fleeing from someone
the “perpetrator knows or should reasonably know . . . to be
a peace officer” (quoting Minn. Stat. § 609.487, subd. 3)).
We agree with the Eighth Circuit’s analysis.
Therefore, the district court correctly held that section
2800.2 is a predicate violent felony under the ACCA.
C. Vagueness Challenge
Martinez also contends that the ACCA’s residual clause
is unconstitutionally vague as applied to his prior conviction
for vehicle flight. Supreme Court and Ninth Circuit
precedent foreclose this argument. See United States v.
Spencer, 724 F.3d 1133, 1145–46 (9th Cir. 2013) (rejecting
argument that residual clause is unconstitutionally vague as
foreclosed by James, 550 U.S. at 210 n.6).
D. Rule of Lenity
Martinez contends that if the application of the residual
clause to California’s vehicle flight statute results in an
ambiguity, then we should apply the rule of lenity and resolve
the ambiguity in his favor. The rule applies “only where after
seizing every thing from which aid can be derived, the court
UNITED STATES V. MARTINEZ 13
is left with a grievously ambiguously statute.” United States
v. Shill, 740 F.3d 1347, 1355 (9th Cir. 2014) (internal
quotation marks omitted). Because the residual clause as
applied to California Vehicle Code § 2800.2 is not
ambiguous, the rule of lenity is not applicable here.
E. Apprendi Challenge
Finally, for the first time on appeal, Martinez contends
that the district court’s application of the ACCA’s residual
clause violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
We review unpreserved Apprendi errors for plain error.
United States v. Chavez, 611 F.3d 1006, 1009 (9th Cir. 2010)
(per curiam).
Supreme Court and Ninth Circuit precedent foreclose this
argument. See James, 550 U.S. at 213–14 (application of the
ACCA’s residual clause did not violate Apprendi and its
progeny because the Court was engaged in statutory
interpretation, not judicial factfinding); United States v.
Brown, 417 F.3d 1077, 1079 (9th Cir. 2005) (per curiam)
(“[Under the categorical approach,] the categorization of a
prior conviction as a ‘violent felony’ or a ‘crime of violence’
is a legal question, not a factual question coming within the
purview of Apprendi, Blakely, and Booker.”). Moreover, the
district court here stated that it based its decision on its
reading of the statute, and it did not delve into any facts.
Therefore, we find no plain error on the basis of Apprendi.
III. CONCLUSION
Martinez’s conviction for vehicle flight under California
Vehicle Code § 2800.2 is a predicate violent felony under the
ACCA. Accordingly, the district court did not err in
14 UNITED STATES V. MARTINEZ
sentencing Martinez to the mandatory-minimum fifteen years
of imprisonment prescribed by the ACCA.
AFFIRMED.