Corrected Reprint 6/21/2007
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30200
Plaintiff-Appellee, D.C. No.
v.
GREGORY ANTHONY RENDON-
CR-05-00087-2-
a-RRB
DUARTE, AMENDED
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
December 5, 2006—Seattle, Washington
Filed June 20, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Schwarzer
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
7363
7366 UNITED STATES v. RENDON-DUARTE
COUNSEL
Allison Mendel, Mendel & Associates, Anchorage, Alaska,
for the defendant-appellant.
Jo Ann Farrington, Assistant U.S. Attorney and Deborah M.
Smith, Acting U.S. Attorney, Anchorage, Alaska, for the
plaintiff-appellee.
UNITED STATES v. RENDON-DUARTE 7367
OPINION
SCHWARZER, District Judge:
Gregory Anthony Rendon-Duarte (Rendon-Duarte) was
sentenced to 70 months’ imprisonment and 36 months’ super-
vised release after a jury convicted him of one count of being
a felon in possession of two firearms, in violation of
18 U.S.C. §§ 922(g)(1) & 924(a)(2). On appeal, he challenges
the district court’s admission of evidence under Federal Rule
of Evidence 404(b) of two prior incidents of gun possession
to prove intent, knowledge and lack of mistake. He also chal-
lenges the district court’s finding that his prior Alaska state
court conviction of Assault in the Third Degree qualifies as a
“crime of violence” under the Sentencing Guidelines. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 1, 2005, Anchorage police officers observed
Rendon-Duarte purchase what they thought was a handgun
from Dwayne Dollison, Jr. (Dollison). The officers then
observed Rendon-Duarte return to the passenger seat of his
vehicle, lean over in the area of the passenger seat, and appear
to move something on the floor. A few minutes later police
stopped the vehicle, which was being driven by Jonel Ferger-
son, Rendon-Duarte’s girlfriend. Police arrested Rendon-
Duarte and, pursuant to a search warrant, recovered two
loaded handguns from under the vehicle’s floor carpet in front
of the front passenger seat. The vehicle was registered to
Rendon-Duarte’s father, who testified that he had bought it
for his son a few months earlier. Fergerson, at Rendon-
Duarte’s request, claimed ownership of the weapons, but at
trial she acknowledged that the weapons did not belong to her
and that she had not placed them in the vehicle.
Prior to trial, the district court denied Rendon-Duarte’s
motion in limine to bar evidence of two prior occasions on
7368 UNITED STATES v. RENDON-DUARTE
which weapons were found within vehicles driven or occu-
pied by Rendon-Duarte, finding these incidents relevant to
Rendon-Duarte’s knowledge, intent, or absence of mistake.
After a three-day trial, the jury found Rendon-Duarte guilty
of being a felon in possession of two firearms. The Presen-
tence Report (PSR) calculated an offense level of twenty, tak-
ing into account that the offense was committed subsequent
to sustaining a felony conviction of a “crime of violence,” i.e.,
a prior Alaska conviction of Assault in the Third Degree. See
U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (felon
in possession of a firearm). Rendon-Duarte did not object to
the PSR. In the absence of objection, the district court
accepted the facts stated in the PSR as established by a pre-
ponderance of the evidence. Concluding Rendon-Duarte fell
within the Guidelines’ range of 63-78 months’ imprisonment,
the court imposed a sentence of 70 months.
DISCUSSION
I.
[1] Federal Rule of Evidence 404(b) limits the admissibility
of evidence of prior acts to those which serve as proof of
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” We use a four-
part test to determine the admissibility of evidence under Rule
404(b). United States v. Arambula-Ruiz, 987 F.2d 599, 602
(9th Cir. 1993).
(1) it must prove a material element of the offense
for which the defendant is now charged; (2) in cer-
tain cases, the prior conduct must be similar to the
charged conduct; (3) proof of the prior conduct must
be based upon sufficient evidence; and (4) the prior
conduct must not be too remote in time.
Id. We need address only the first part of the test.
UNITED STATES v. RENDON-DUARTE 7369
The government offered “bad act” testimony from two
police officers. Sergeant Kass testified that in June 2003, in
connection with a traffic stop of a vehicle in which Rendon-
Duarte was riding, two weapons were found stashed in the
cover of the sunroof of the car. Lieutenant Gilliam testified
that in March 2001, when a car driven by Rendon-Duarte was
checked following an accident, a weapon and shell casings
were found on the floorboard of the driver’s seat below where
Rendon-Duarte had been sitting. The jury was instructed that
it could consider this evidence “only as it bears on defen-
dant’s intent, knowledge, absence of mistake or accident, and
for no other purpose.”
The district court held the evidence admissible, finding a
sufficient nexus between these incidents and the conduct with
which Rendon-Duarte was charged. It noted that the presence
of the guns in the vehicles within easy reach of Rendon-
Duarte was probative of absence of mistake as well as plan.
We review the district court’s evidentiary rulings for abuse of
discretion, considering whether the lower court based its deci-
sion on relevant factors and whether there was a clear error
of judgment. United States v. Alvarez, 358 F.3d 1194, 1205
(9th Cir. 2004).
[2] Rendon-Duarte argues that the prior-act testimony was
improperly admitted because “there is no ‘logical connection’
between the crime to be proved and the prior bad acts other
then [sic] propensity to possess guns, an impermissible pur-
pose.” We have held that “the government . . . bears the bur-
den of proving a logical connection between appellant’s
purported involvement in the previous [act] and a material
fact at issue in the crime with which he was charged.” United
States v. Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994). The
material fact at issue here was whether Rendon-Duarte had
knowledge of and intent to possess the weapons found in his
vehicle. The evidence of the prior acts established only that
weapons were found in the cars he drove or rode in. The gov-
7370 UNITED STATES v. RENDON-DUARTE
ernment’s reliance on United States v. Jernigan, 341 F.3d
1273 (11th Cir. 2003), is misplaced. There, the court stated:
[T]he caselaw in this and other circuits establishes
clearly the logical connection between a convicted
felon’s knowing possession of a firearm at one time
and his knowledge that a firearm is present at a sub-
sequent time (or, put differently, that his possession
at the subsequent time is not mistaken or accidental.)
341 F.3d at 1281 (emphasis added). Because there was no evi-
dence that Rendon-Duarte had knowing possession of the
weapons at issue here, the admission of the prior-act testi-
mony was an abuse of discretion.
[3] The error was harmless, however, in light of the over-
whelming evidence of Rendon-Duarte’s guilt. The officers’
testimony established that Rendon-Duarte purchased a firearm
from Dollison, placed the firearm in his waistband, returned
to his vehicle, and sat down in the front passenger seat. When
police stopped the car a few minutes later, they found two
firearms under the floorboards in front of the passenger-side
seat. Rendon-Duarte gave the officers a false name and birth
date, and he sought to persuade his girlfriend to falsely claim
that the guns were hers. In light of this uncontradicted evi-
dence, it is more probable than not that any error did not
materially affect the verdict. See United States v. Morales,
108 F.3d 1031, 1040 (9th Cir. 1997).
II.
Having been found guilty of violation of 18 U.S.C.
§ 922(g)(1), Rendon-Duarte was sentenced pursuant to sec-
tion 2K2.l of the Sentencing Guidelines. Under section
2K2.l(a)(4)(A), a base offense level of twenty applies if the
defendant committed the offense subsequent to a felony con-
viction for a crime of violence. U.S. Sentencing Guidelines
Manual § 2K2.l(a)(4)(A) (2005) [hereinafter USSG]. Applica-
UNITED STATES v. RENDON-DUARTE 7371
tion note one states that “crime of violence” has the meaning
given it in section 4B1.2(a). USSG § 2K2.1 cmt. n.1.
The district judge, without objection, adopted the PSR
which recommended an offense level of twenty based on a
finding that Rendon-Duarte’s prior Alaska conviction for
Assault in the Third Degree qualified as a “crime of vio-
lence.” The PSR described the conduct underlying the prior
conviction, but it did not cite the Alaska statute. Rendon-
Duarte contends that the district court erred because it applied
the “crime of violence” enhancement solely on the facts
underlying the conviction and because Assault in the Third
Degree under Alaska law in any event does not qualify as a
“crime of violence” under the Guidelines.
Because Rendon-Duarte did not challenge the PSR in the
district court, we review the court’s application of the Guide-
lines for plain error. Fed. R. Crim. P. 52(b); United States v.
Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). “There must be
an ‘error’ that is ‘plain’ and that ‘affect[s] substantial
rights.’ ” United States v. Olano, 507 U.S. 725, 732 (1993).
Rendon-Duarte bears the burden of demonstrating that the
error prejudiced his rights. Id. at 734. Further, “the court
should not exercise [its discretion to correct the error] unless
the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 732 (internal quota-
tion marks and citation omitted).
[4] The Guidelines define “crime of violence” as
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 threat-
ened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson,
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
7372 UNITED STATES v. RENDON-DUARTE
USSG § 4B1.2(a)(1) & (2). In determining whether the
Alaska statute qualifies, we use the categorical approach
announced in Taylor v. United States, 495 U.S. 575 (1990).
Under the categorical approach a court must “look only to the
fact of conviction and the statutory definition of the prior
offense” when determining whether the offense qualifies
under a definition in the Guidelines. Id. at 602.
[5] The Government failed to provide the statute of convic-
tion, and the court relied solely on the facts recited in the
PSR. This was error. See United States v. Pimentel-Flores,
339 F.3d 959, 967 (9th Cir. 2003) (“Under Taylor . . . the
actual statute of prior conviction must be supplied to the dis-
trict court by the government whether or not anyone objects
to its absence.”). In Pimentel-Flores, we held it was plain
error for the district court to rely solely on the factual descrip-
tion of the offense in the PSR. Id. at 968. The district court
committed the same error in this case, and under Pimentel-
Flores this error was plain. See id.
[6] While we conclude that the district court committed
plain error, we find that the error did not affect Rendon-
Duarte’s substantial rights. Rendon-Duarte admits that his
conviction was for violation of section 11.41.220(a)(1)(A) of
the Alaska Statutes, which provides:
(a) A person commits the crime of assault in the
third degree if that person (1) recklessly (A) places
another person in fear of imminent serious physical
injury by means of a dangerous instrument.
Dangerous instrument is defined as “any deadly weapon or
anything that, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is capable of
causing death or serious physical injury.” Alaska Stat.
§ 11.81.900(b)(15)(A).
Rendon-Duarte contends that the Alaska statute does not
qualify under the categorical approach because it requires
UNITED STATES v. RENDON-DUARTE 7373
only that the defendant recklessly place the victim in fear of
imminent serious physical injury. Thus a violation of the state
statute does not satisfy the definition of crime of violence
under section 4B1.2(a)(1) because under that subsection a
crime of violence must have an element of the use of physical
force against another person. The state statute, he argues,
requires only recklessly placing a person in fear of injury, not
actual or threatened use of force.
[7] We disagree with Rendon-Duarte’s statutory analysis.
His argument overlooks the alternative definition in subsec-
tion (2) of section 4B1.2(a) which states that a crime of vio-
lence is “any offense . . . that . . . is burglary of a dwelling,
arson, extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of phys-
ical injury to another.” The language in the residual
(“otherwise”) clause, targeting conduct that presents a serious
potential risk of physical injury to another, is congruent with
Alaska’s prohibition of “plac[ing] another person in fear of
imminent serious physical injury by means of a dangerous
instrument.” Regardless of a defendant’s mental state, con-
duct involving a dangerous instrument “create[s] significant
risks of bodily injury or confrontation that might result in
bodily injury.” James v. United States, 127 S. Ct. 1586, 1592
(2007) (holding that attempted burglary under Florida law
qualified as a crime of violence under the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) [hereinafter
ACCA], because it “involves conduct that presents a serious
potential risk of physical injury to another”).
Rendon-Duarte directs our attention to this court’s recent
decision in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th
Cir. 2006) (en banc), holding that an Arizona conviction for
domestic violence did not constitute a crime of violence under
18 U.S.C. § 16(a). That statute defines a 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
7374 UNITED STATES v. RENDON-DUARTE
of another.” Applying the reasoning of Leocal v. Ashcroft,
543 U.S. 1 (2004), the court held that
Neither gross negligence . . . nor conscious disregard
of a substantial and unjustifiable risk of injury
implies that physical force is instrumental to carry-
ing out a crime, such as the plain meaning of the
word ‘use’ denotes. Therefore, neither recklessness
nor gross negligence is a sufficient mens rea to
establish that a conviction is for a crime of violence
under § 16.
Fernandez-Ruiz, 466 F.3d at 1130 (citation omitted). Because
the full range of conduct proscribed by the Arizona statute
encompassed reckless conduct, a conviction could not qualify
as a crime of violence under § 16.1 Id.
Fernandez-Ruiz does not help Rendon-Duarte because his
case does not involve § 16; it involves application of the Sen-
tencing Guidelines. The critical difference between the two
definitions of crime of violence is made clear in Leocal:
[Section] 16(b) plainly does not encompass all
offenses which create a “substantial risk” that injury
will result from a person’s conduct. The “substantial
risk” in § 16(b) relates to the use of force, not to the
possible effect of a person’s conduct. Compare
§ 16(b) (requiring a “substantial risk that physical
force against the person or property of another may
be used”), with United States Sentencing Commis-
sion, Guidelines Manual § 4B1.2(a)(2) (Nov. 2003).
1
18 U.S.C. § 16(a) defines “crime of violence” as “an offense that has
as an element the use . . . of physical force against the person or property
of another.” Section 16(b) defines it as “any other offense that is a felony
and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.”
UNITED STATES v. RENDON-DUARTE 7375
. . . The risk that an accident may occur when an
individual drives while intoxicated is simply not the
same thing as the risk that the individual may “use”
physical force against another in committing the
DUI offense.
Id. at 10 n.7.
[8] Because the use of physical force is not an element of
subsection (2) of the Guidelines’ definition of crime of vio-
lence, there is no volitional element implicated in its applica-
tion. The focus of the Guidelines is on “conduct that presents
a serious risk of physical injury to another.” Accordingly, the
inclusion of the term “recklessness” does not operate to
extend the range of proscribed conduct under the Alaska stat-
ute.
Citing Siggelkow v. State, 648 P.2d 611, 612 (Alaska Ct.
App. 1982), Rendon-Duarte argues that the Alaska statute
may be violated by causing a person to fear injury by the dis-
play of an unloaded weapon. Thus, he argues, a conviction
may be based on the state of mind of the victim, not the use
of a dangerous instrument. For purposes of applying the
Guideline, however, the critical factor is whether the defen-
dant’s conduct creates a serious potential risk of physical
injury; the victim’s state of mind is immaterial. In holding an
unloaded gun to be a dangerous weapon, the Supreme Court
reasoned that, among other things, “the display of a gun
instills fear in the average citizen; as a consequence, it creates
an immediate danger that a violent response will ensue.”
McLaughlin v. United States, 476 U.S. 16, 17-18 (1986); see
also United States v. Hunter, 101 F.3d 82, 86 (9th Cir. 1996)
(“Unloaded firearms . . . increase the risk of violence by oth-
ers who may respond to the perceived danger represented by
the (presumably) loaded gun.” (quoting United States v. Mar-
tinez, 912 F.2d 419, 421 (10th Cir. 1990)). In James, the
Court, in holding attempted burglary to be a crime of vio-
lence, reasoned that the offenses (of burglary, arson, extortion
7376 UNITED STATES v. RENDON-DUARTE
and explosives use) “while not technically crimes against the
person, nevertheless create significant risks of bodily injury or
confrontation that might result in bodily injury.” James, 127
S. Ct. at 1592. In sum, the application of the Alaska assault
statute to cases of unloaded weapons does not extend the
reach of that statute beyond the definition of crime of violence
in section 4B1.2(a)(2); the Guidelines are concerned with
conduct creating a serious potential risk of physical injury to
another. That risk is not defined by whether the weapon is
loaded.2
[9] Because a conviction under the Alaska statute qualifies
as a crime of violence under section 4B1.2(a)(2), the district
court’s error did not substantially affect Rendon-Duarte’s
2
Nor is the “otherwise” clause of the Guidelines—any offenses that oth-
erwise involve conduct that presents a serious potential risk of physical
injury—properly read in context with the enumerated crimes of violence
that precede the clause. The Tenth Circuit explained:
At the outset, the analysis in [United States v. Walker, 393 F.3d
819 (8th Cir. 2005)] ignores the more flexible articulation of
[section] 4B1.2’s “crime of violence” definition explained in its
commentary section. See USSG § 4B1.2 cmt. n.1. There this “or
otherwise” language is removed, and the inclusion of offenses
with conduct posing serious potential risk of physical injury is
de-linked from any preceding specific sequence of offenses. . . .
[T]he commentary . . . in a separate sentence explains that
“[o]ther offenses are included as ‘crimes of violence’ if . . . the
conduct . . . by its nature, presented a serious potential risk of
physical injury to another.” Id.
United States v. Moore, 420 F.3d 1218, 1221-22 (10th Cir. 2005); see also
James, 127 S. Ct. at 1592-93 (rejecting application of ejusdem generis in
interpreting the residual (“otherwise”) clause in the ACCA); United States
v. Veach, 455 F.3d 628, 637 (6th Cir. 2006) (holding that “driving while
under the influence of intoxicants presents, at the very least, a serious
potential risk that the driver will cause physical injury to another person”);
United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000)
(holding that misdemeanor drunk driving by its very nature involves con-
duct that presents a serious potential risk of physical injury to another).
UNITED STATES v. RENDON-DUARTE 7377
rights.
AFFIRMED.