FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30013
Plaintiff - Appellee, D.C. No. CR-05-00104-FVS
v.
MEMORANDUM *
MATTHEW ROBERT DESCAMPS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Resubmitted January 10, 2012 **
Seattle, Washington
Before: W. FLETCHER, GOULD, and TALLMAN, Circuit Judges.
Matthew Descamps was found guilty of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He had five
previous felony convictions. The Armed Career Criminal Act (“ACCA”) requires
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
a sentence of at least fifteen years if the defendant has three prior convictions for
violent felonies. 18 U.S.C. § 924(e)(1). The statute defines a violent felony as
“any crime punishable by imprisonment for a term exceeding one year . . . that has
as an element the . . . threatened use of physical force against the person of
another; or is burglary . . . .” § 924(e)(2). At sentencing, the district court
concluded that Descamps had three predicate violent felonies—robbery, burglary,
and felony harassment—and sentenced Descamps to 262 months in custody and
five years of supervised release, under the ACCA. Descamps appeals his sentence.
Descamps first argues that all prior convictions that are used to enhance his
sentence must be charged in the indictment and submitted to a jury for a finding
beyond a reasonable doubt. The Supreme Court has held that prior convictions
that increase a sentence beyond a statutory maximum do not have to be proven
beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(holding that any fact other than the fact of a prior conviction must be charged in
an indictment, submitted to a jury, and proven beyond a reasonable doubt);
Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998) (prior
convictions need not be presented in an indictment). Our circuit precedent follows
the Supreme Court’s precedent. United States v. Grisel, 488 F.3d 844, 846–47 (9th
Cir. 2007) (stating that Almendarez-Torres is still good law and holding the ACCA
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does not require the government to plead and prove beyond a reasonable doubt a
defendant’s prior convictions).
Descamps also argues that his prior felonies of burglary and felony
harassment do not qualify as violent felonies under the ACCA. Descamps pled
guilty to the crime of burglary in violation of California Penal Code (“CPC”)
§ 459. The generic definition of burglary 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). CPC § 459 defines burglary as
when a “person . . . enters [various structures] . . . with intent to commit grand or
petit larceny or any felony.” Burglary under § 459 is categorically broader than
generic burglary both because it includes burglary of a tent and because
“California's definition of ‘unlawful or unprivileged entry,’ unlike the generic
definition, permits a conviction for burglary of a structure open to the public and of
a structure that the defendant is licensed or privileged to enter if the defendant
enters the structure with the intent to commit a felony.” United States v. Aguila-
Montes de Oca, 655 F.3d 915, 944 (9th Cir. 2011) (en banc).
We therefore apply the modified categorical approach. Id. We look at the
“statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
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assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). The information
charged that Descamps did “wilfully, unlawfully and feloniously enter a building,
to-wit: CentroMart.” During the plea colloquy, the prosecutor said that the factual
basis for the crime was the “breaking and entering of a grocery store.” Descamps
made no objection to this statement of factual basis.
We hold that the guilty plea and conviction necessarily rested on facts that
satisfy the elements of the generic definition of burglary. The charging document
shows that Descamps pled guilty to entering a building, and the plea colloquy
establishes that he did so in an unlawful way (by “breaking and entering”) in the
generic sense. We reject as fanciful Descamps’s argument that “building” could
have meant a tent. The combination of facts stated in the information and plea
colloquy show that Descamps’s conviction necessarily rested on facts identifying
the burglary as generic. See Aguila-Montes, 655 F.3d at 937.
We also reject Descamps’s claim that his Washington state conviction for
felony harassment is not a violent felony. The amended information charged
Descamps with knowingly threatening to kill a judge in violation of the Revised
Code of Washington § 9A.46.020(1)(a). Descamps pled guilty. Descamps argues
that a threat to kill does not necessarily have as an element a threatened use of
physical force. We reject this argument. A finding that a person threatened to kill
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necessarily requires a finding of “threatened use of physical force against the
person of another.” § 924(e)(2)(ii).
The district court correctly held that Descamps had three prior violent
felonies and correctly applied the ACCA to Descamps.1
AFFIRMED.
1
Descamps has filed a supplemental brief with our permission in addition to those
filed by his attorney. Construing the pleading liberally, Descamps has asserted a
claim of ineffective assistance of counsel. But this type of claim is more properly
raised by collateral attack under 28 U.S.C. § 2255, because in such a proceeding
facts concerning the representation can be developed, and not on direct appeal, so
we decline to address the claim. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.
1997).
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