FILED
NOT FOR PUBLICATION FEB 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10364
Plaintiff - Appellee, D.C. No. 2:07-cr-00583-JAT-1
v.
MEMORANDUM*
MARTIN WALTER DAVIS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted January 11, 2011**
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BEA, Circuit Judges.
Martin Walter Davis appeals the district court’s imposition of an enhanced
sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), for
his conviction for being a felon in possession of a firearm. We reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Our review is de novo. United States v. Terrell, 593 F.3d 1084, 1087 (9th
Cir. 2010) (review of whether a conviction is a predicate felony). The evidence is
viewed in the light most favorable to the defendant. United States v. Phillips, 149
F.3d 1026, 1029 (9th Cir. 1998)
I. Davis’s California burglary is not a violent felony under ACCA.
Under ACCA, a “violent felony” is an offense that is punishable by
imprisonment for a term exceeding one year and that “has as an element the use,
attempted use, or threatened use of physical force against the person of another” or
“is burglary.” 18 U.S.C. § 924(e)(2)(B). This court recently considered whether
first-degree burglary under § 459 qualifies as a “crime of violence” under U.S.S.G.
§ 2L1.2 cmt. 1(B)(iii). United States v. Aguila-Montes de Oca, 655 F.3d 915, 946
(9th Cir. 2011) (en banc). The statute at issue in Aguila-Montes de Oca defines
“crime of violence” as including “burglary of a dwelling, or any other offense
under federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2
cmt. 1(B)(iii). This definition is almost identical to the definition of “violent
felony” under the statute at issue here, and our holding in Aguila-Montes de Oca
therefore controls.
2
This court held in Aguila-Montes de Oca that first-degree burglary under
California Penal Code § 459 is broader than generic burglary for the purpose of
§ 2L1.2 because § 459 does not require that the defendant’s entry into the victim’s
home be “unlawful or unprivileged.”1 Aguila-Montes de Oca, 655 F.3d at 946. A
defendant who pleads guilty to the bare elements of that crime has not committed
generic burglary, unless the record shows he entered without consent of the owner
or lawful possessor of the property. Id. at 945–46. In other words, if a defendant’s
entry was “privileged,” he has not committed generic burglary. Id. Therefore,
under Aguila-Montes de Oca, a bare conviction of first-degree burglary under
§ 459 does not qualify as a “violent felony” under 18 U.S.C. § 924(e)(2)(B). Thus,
Davis’s conviction for first-degree burglary under § 459 does not categorically
qualify him as having committed a “violent felony.”
Under the modified categorical approach, the record was not sufficient for
the district court to find that Davis admitted entering the residence without consent.
Davis pleaded guilty to “[1] willfully and unlawfully enter[ing] the [2] residence,
and building occupied by Edward Civington and Richard Rutter, [3] with the intent
to commit larceny.” Davis did not admit, by his guilty plea, that his entry was
1
The California crime of residential burglary requires: (1) entry, (2) into
any building or other listed structure, (3) with intent to commit larceny or any
felony. People v. Davis, 958 P.2d 1083, 1085 (Cal. 1998).
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“unprivileged” (without consent).
It may beggar common sense to think anyone would consent to another’s
entry to his home if the homeowner knew the other had an intent to commit larceny
therein. However, recourse to common sense cannot overcome our circuit
precedent. See Covarrubias Teposte v. Holder, 632 F.3d 1049, 1056 n.2 (9th Cir.
2011) (“Our panel has no power to modify circuit precedent, and we are bound . . .
until such time as the Supreme Court or an en banc panel of our court revisits this
issue.”). Davis’s plea is similar to the one in Aguila-Montes de Oca, where this
court held that even though the defendant pleaded guilty to entering “willfully and
unlawfully” and “with the intent to commit larceny and any felony,” the plea was
insufficient to show entry without consent. 655 F.3d at 945–46 (emphasis
removed). Similarly, Davis did not explicitly plead guilty to entering the
residence without consent, only to doing so “willfully and unlawfully” with
larcenous intent. Thus, since we are bound by Aguila-Montes de Oca, Davis’s
first-degree burglary offense does not constitute generic burglary under the
modified categorical approach and thus is not a “violent felony” under ACCA.
Our resolution of this case does not preclude the possibility, left open in
Aguila-Montes de Oca, that in a different case, some “documents of conviction” to
which we can refer under our case law, see Shepard v. United States, 544 U.S. 13,
4
16 (2005), may include facts that demonstrate that the defendant entered without
consent. Aguila-Montes de Oca, 655 F.3d at 946 (“[C]onviction records for
California burglary cannot demonstrate that a defendant was convicted of generic
burglary unless they do something more than simply repeat the elements of
California burglary” (emphasis added)); see also U.S. v. Snellenberger, 548 F.3d
699, 702 (9th Cir. 2008) (en banc) (discussing the documents a court may consider
under the modified categorical approach). However, in this case, as in Aguila-
Montes de Oca, the “documents of conviction” neither expressly nor impliedly rule
out the possibilities that Davis was attending a dinner party at the owners’
invitation, that Davis was house-sitting while the owners were away on vacation,
or that his entry into the victims’ house was similarly “privileged” (consensual).
See 655 F.3d at 946.
Because there is not sufficient proof that Davis had committed three violent
felonies under 18 U.S.C. § 924(e)(3), he was not eligible for the minimum 15-year-
sentence required by ACCA. We therefore reverse Davis’s sentence and remand
for re-sentencing.
II. The district court properly precluded Davis from presenting a
justification defense.
However, the district court correctly granted the government’s motion in
5
limine to preclude Davis from presenting evidence that supported a justification
defense to being a felon in possession of a firearm and ammunition. Davis
contended he possessed a firearm in order to protect himself from his former prison
gang. But Davis could not establish a justification defense because he did not
show that he had no reasonable alternative to possessing a firearm and ammunition
to protect himself from his former prison gang. See United States v. Phillips, 149
F.3d 1026, 1029–30 (9th Cir. 1998). We therefore affirm the district court’s
decision to grant the government’s motion to preclude Davis from presenting a
justification defense.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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FILED
U.S. v. Davis, No. 08-10364 FEB 23 2012
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.