USA v. Jorge Cisnero

Filing

FILED OPINION (ALFRED T. GOODWIN, SANDRA S. IKUTA and N. RANDY SMITH) AFFIRMED. Judge: NRS Authoring. FILED AND ENTERED JUDGMENT. [9209364]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 13-30066

v.

D.C. No.
1:11-cr-30051-PA-1

JORGE ARMANDO CISNEROS,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted May 13, 2014*
Portland, Oregon
Filed August 19, 2014
Before: Alfred T. Goodwin, Sandra S. Ikuta,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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UNITED STATES V. CISNEROS
SUMMARY**

Criminal Law
The panel affirmed the district court’s imposition of a
mandatory minimum sentence of 180 months’ imprisonment
pursuant to the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(1) (ACCA).
The district court determined that six of the defendant’s
past convictions – three convictions for fleeing or attempting
to elude a police officer in violation of Oregon Revised
Statutes § 811.540(1), two convictions for first-degree
burglary in violation of Oregon Revised Statutes § 164.225,
and one conviction for conspiracy to commit delivery of a
controlled substance in violation of Oregon Revised Statutes
§§ 161.450 and 475.752 – qualify as predicate offenses under
ACCA.
The defendant conceded that his drug offense qualifies as
an ACCA predicate offense.
The panel held that Descamps v. United States, 133 S. Ct.
2276 (2013), did not undermine United States v. Snyder, 643
F.3d 694 (9th Cir. 2011), which held that an Oregon
conviction for fleeing or attempting to elude a police officer
qualifies as a violent felony under ACCA’s residual clause.
Answering a question this court had no reason to ask in
Snyder, the panel held that because § 811.540(1) contains
alternative elements for fleeing from a police officer in a
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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vehicle and fleeing on foot, the statute is divisible, and the
panel could review the charging documents to confirm that
the defendant was convicted for vehicular flight,
which constitutes a “violent felony” under ACCA’s residual
clause. Observing that each indictment establishes that the
defendant was convicted of vehicular flight pursuant to
§ 811.540(1)(b)(A), the panel concluded that all three of the
defendant’s convictions for fleeing or attempting to elude
police officers qualify as violent felonies under ACCA’s
residual clause.
The panel rejected the defendant’s contention that
ACCA’s residual clause is unconstitutionally vague.
The panel likewise held that Descamps did not undermine
United States v. Mayer, 560 F.3d 948 (9th Cir. 2009), which
held that a conviction for first-degree burglary in violation of
§ 164.225 qualifies as a violent felony under ACCA’s
residual clause. The panel concluded that Mayer therefore
applies to the defendant’s first-degree burglary convictions,
which means those convictions qualify as predicate offenses
under ACCA.

COUNSEL
Brian C. Butler (argued), Assistant Federal Public Defender,
Federal Public Defender’s Office, Medford, Oregon, for
Defendant-Appellant.
Douglas W. Fong (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; and S. Amanda Marshall,
United States Attorney, Office of the United States Attorney,
Medford, Oregon, for Plaintiff-Appellee.

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UNITED STATES V. CISNEROS
OPINION

N.R. SMITH, Circuit Judge:
Jorge Armando Cisneros appeals the district court’s
decision that six of his past convictions—three convictions
for fleeing or attempting to elude a police officer, two
convictions for first-degree burglary, and one conviction for
conspiracy to commit delivery of a controlled
substance—qualify as predicate offenses under the Armed
Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e).
Cisneros concedes that his drug offense qualifies as an ACCA
predicate offense under United States v. Parry, 479 F.3d 722,
724–25 (9th Cir. 2007).1 Therefore, only two more of his
convictions must qualify as ACCA predicate offenses for
Cisneros to receive ACCA’s mandatory minimum sentence
of 180 months’ imprisonment. See 18 U.S.C. § 924(e)(1).
Cisneros’s three convictions for fleeing or attempting to
elude police officers under Oregon Revised Statutes section
811.540(1) constitute “violent felon[ies]” under ACCA’s
residual clause. Because section 811.540(1) contains
alternative elements for fleeing from a police officer in a
vehicle and fleeing on foot, the statute is divisible. See
Descamps v. United States, 133 S. Ct. 2276, 2284 (2013).
We may therefore review the charging documents to confirm
that Cisneros was convicted for vehicular flight, see id. at
2284, which constitutes a “violent felony” under ACCA’s
residual clause, see United States v. Snyder, 643 F.3d 694,
699-700 (9th Cir. 2011). Given Cisneros’s three convictions

1

We reject Cisneros’s argument that Parry was wrongly decided, as a
“three-judge panel may not overrule a prior decision of the court.” Miller
v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

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under section 811.540(1) and his drug offense, the district
court properly sentenced Cisneros to 180 months’
imprisonment under ACCA. See 18 U.S.C. § 924(e)(1).
Nevertheless, because the district court also decided that
Cisneros’s convictions for first-degree burglary qualified as
predicate offenses, we address those convictions as well. We
have already held that a conviction for first-degree burglary
under Oregon Revised Statutes section 164.225 qualifies as
a “violent felony” under ACCA’s residual clause. United
States v. Mayer, 560 F.3d 948, 954 (9th Cir. 2009). Because
the Supreme Court “express[ed] no view” on Mayer when it
decided Descamps, 133 S. Ct. at 2293 n.6, Mayer remains the
law of the Ninth Circuit. Thus, Cisneros’s past convictions
under Oregon Revised Statutes sections 811.540(1)(A) and
164.225 qualify as predicate offenses under ACCA.
Accordingly, we affirm the district court.
FACTS
On November 26, 2012, Cisneros pleaded guilty to being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The government sought to enhance Cisneros’s
sentence under ACCA. See 18 U.S.C. § 924(e). The
government based its proposed sentence enhancement on six
of Cisneros’s prior convictions: three convictions for fleeing
or attempting to elude a police officer, Or. Rev. Stat.
§ 811.540(1), two convictions for first-degree burglary, id.
§ 164.225, and one conviction for conspiracy to deliver a
controlled substance, see id. §§ 161.450, 475.752. The
district court held that all six of the prior convictions
qualified as ACCA predicate offenses and sentenced Cisneros
to the mandatory minimum of 180 months in prison.

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STANDARD OF REVIEW

We review de novo whether Cisneros’s prior convictions
qualify as predicate offenses under ACCA. United States v.
Chandler, 743 F.3d 648, 650 (9th Cir. 2014).
DISCUSSION
ACCA prescribes a mandatory minimum sentence of
fifteen years imprisonment for any felon who unlawfully
possesses a firearm and who has three or more prior
convictions for a “violent felony.” See 18 U.S.C. § 924
(e)(1). Under ACCA’s “residual clause,” the definition of
“violent felony” includes any crime punishable by more than
one year’s imprisonment that “involves conduct that presents
a serious potential risk of physical injury to another.” See id.
§ 924(e)(2)(B)(ii).
We have previously held that convictions pursuant to
Oregon’s first-degree burglary statute and Oregon’s fleeing
or attempting to elude a police officer statute qualify as
violent felonies under ACCA’s residual clause. See Snyder,
643 F.3d at 699–700 (fleeing or attempting to elude a police
officer); Mayer, 560 F.3d at 954 (first-degree burglary).
After we decided Snyder and Mayer, the Supreme Court
clarified that, in deciding whether a conviction qualifies as a
violent felony under ACCA, courts may not review
documents relevant to the conviction “when the crime of
which the defendant was convicted has a single, indivisible
set of elements.” Descamps, 133 S. Ct. at 2282.
Cisneros argues that Descamps implicitly overruled
Snyder and Mayer. “Although a three judge panel normally
cannot overrule a decision of a prior panel on a controlling

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question of law, we may overrule prior circuit authority
without taking the case en banc when an intervening Supreme
Court decision undermines an existing precedent of the Ninth
Circuit, and both cases are closely on point.” Galbraith v.
Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)
(internal quotation marks and citation omitted). However,
Descamps did not undermine Snyder or Mayer; both cases
remain the law of the Ninth Circuit.
1. Attempting to Elude a Police Officer.
In Oregon,
[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 . . . gives a visual or
audible signal to bring the vehicle to a
stop, . . . 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.
Or. Rev. Stat. § 811.540(1). Snyder held that violating this
statute’s prohibition on vehicular flight constitutes a violent
felony under ACCA’s residual clause. See 643 F.3d at 699.

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Snyder relied on United States v. Sykes, 131 S. Ct. 2267
(2011), in which the Supreme Court held that an Indiana
statute prohibiting vehicular flight qualified as a violent
felony, “because, as a categorical matter, the prohibition falls
within [ACCA’s] residual clause in that vehicle flight
presents a serious potential risk of physical injury to another.”
643 F.3d at 699 (citing Sykes, 131 S. Ct. at 2275–76).
Comparing the portion of the Oregon statute that prohibits
vehicular flight to the Indiana statute, Snyder held that 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.” Id.
Our analysis in Synder could prove problematic, because
we zeroed in on vehicular flight after reviewing the
indictment in Snyder’s case, see id., a practice Descamps
allows only when the statute is divisible, 133 S. Ct. at
2281–82. Of course, Snyder predates Descamps, which
means we had no reason to embark on a divisibility inquiry
at the time we decided Snyder. Thus, we must now answer
the question we had no reason to ask in Snyder (whether
section 811.540(1) is divisible).
If section 811.540(1) is divisible, Snyder’s review of the
indictment would be permissible—even post-Descamps.
Consequently, Snyder would remain good law, and a
violation of section 811.540(1) by vehicular flight would
qualify as a violent felony. However, if section 811.540(1)
is indivisible, Snyder’s review of the indictment would be
prohibited by Descamps. Under these circumstances, we
would be required to consider the statute anew, as a whole,
rather than relying on Snyder’s analysis, which focused on
vehicular flight.

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We have little problem concluding that Oregon’s fleeing
or attempting to elude a police officer statute is divisible. By
separating flight in a vehicle and flight on foot, the statute
“lists multiple, alternative elements, and so effectively creates
‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285
(quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). In
fact, the statute separates itself into two different crimes,
dictating flight in a vehicle constitutes a felony while flight
on foot constitutes a misdemeanor. Or. Rev. Stat.
§ 811.540(3).
Oregon’s jury instructions support the conclusion that the
statute is divisible: section 811.540(1)(b)(A) uses an entirely
different instruction than section 811.540(1)(b)(B). See
UCrJI 2720 (“Fleeing or Attempting to Elude a Police Officer
(While Still in the Vehicle)”); UCrJI 2721 (“Fleeing or
Attempting to Elude a Police Officer (Out of the Vehicle)”).
According to the jury instructions, both crimes require that
the state prove five elements. Four of the elements are the
exact same, but the fifth element is different for each crime.
Compare UCrJI 2720 (“[Defendant’s name], while still in the
vehicle, knowingly fled or attempted to elude a pursuing
police officer.”) with UCrJI 2721 (“[Defendant’s name] got
out of the vehicle and knowingly fled or attempted to elude
the police officer.”). These alternative elements make the
statute divisible. See Descamps, 133 S. Ct. at 2285.
Cisneros insists that Snyder’s failure to address
divisibility, as required by Descamps, means that Snyder no
longer carries any precedential value. However, Descamps’s
imposition of a divisibility requirement does not give us carte
blanche to run roughshod over all of Snyder’s legal
conclusions. Intervening Supreme Court authority only
overrules past circuit precedent to the extent that the Supreme

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Court decision “undercut the theory or reasoning underlying
the prior circuit precedent in such a way that the cases are
clearly irreconcilable.” See Miller, 335 F.3d at 900. The
divisibility of section 811.540(1) means Snyder can be
reconciled with Descamps. We are therefore duty-bound to
follow Snyder.
In sum, Oregon Revised Statutes section 811.540(1),
which prohibits flight or eluding a police officer, is divisible
as to flight on foot and flight in a vehicle. See Descamps,
133 S. Ct. at 2285. Pursuant to Descamps, a court reviewing
a conviction under section 811.540(1) may consult
permissible documents to determine which alternative
element played a part in the defendant’s conviction. See id. at
2283; see also Shepard v. United States, 544 U.S. 13, 16
(2005) (holding that under the modified categorical approach,
a court “is generally limited to examining 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 assented”). Where
these documents show that the defendant was convicted of
vehicular flight under section 811.540(1)(b)(A), the
conviction constitutes a “violent felony” under the residual
clause of ACCA. See Snyder, 643 F.3d at 699.
In the case at hand, all three of Cisneros’s indictments for
fleeing or attempting to elude a police officer use identical
language, except for the date of the offense and the premises
on which the offense was committed:
The defendant, on or about [date], in Jackson
County, Oregon, being an operator of a motor
vehicle upon [a public highway/premises open
to the public], and having been given a visible

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and audible signal to stop by a police officer,
who was operating a vehicle appropriately
marked showing it to be an official police
vehicle, did unlawfully and knowingly, while
still in the vehicle, attempt to elude the police
officer.
Each indictment establishes that Cisneros was convicted of
vehicular flight pursuant to Oregon Revised Statutes section
811.540(1)(b)(A).
Therefore, all three of Cisneros’s
convictions for fleeing or attempting to elude police officers
qualify as violent felonies under ACCA’s residual clause.2
2. First-degree burglary in Oregon.
In Oregon, a person commits the crime of first-degree
burglary “if the person enters or remains unlawfully in a
building with intent to commit a crime therein,” Or. Rev.
Stat. § 164.215, and “the building is a dwelling,” id.
§ 164.225. Cisneros argues that Oregon’s first-degree
burglary statute does not qualify as a violent felony under
ACCA’s residual clause. We reached the opposite conclusion
in Mayer. 560 F.3d at 954. We reasoned that the appropriate
inquiry was whether, “‘in the ordinary case,’ conduct falling
within the state statute presents” a serious potential risk of
physical injury. Id. at 960 (quoting James, 550 U.S. at 208).
In making that inquiry, we concluded that the statute fell
within ACCA’s residual clause, because it “categorically
poses a serious potential risk of physical injury to people
present in a dwelling at the time of a burglary, and to people

2

We reject Cisneros’s claim that ACCA’s residual clause is
unconstitutionally vague. See James v. United States, 550 U.S. 192, 210
n.6 (2007).

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in the immediate area of a building if a confrontation does
occur.” Id. at 963.
Cisneros again asserts that Descamps constitutes
intervening, superseding Supreme Court authority. He argues
that Mayer impermissibly “engaged in the kind of fact-based
inquiry rejected by the Supreme Court in Descamps.”
However, Cisneros points to nothing in Mayer’s analysis to
show that the Mayer court looked at the facts underlying
Mayer’s conviction.
Instead, Cisneros disagrees with how Mayer applied
ACCA’s residual clause to Oregon’s first-degree burglary
statute. Specifically, he argues that the “proper inquiry is not
how the statute is interpreted most of the time, but whether it
has been interpreted to include conduct that does not involve
dangerous conduct.” In effect, Cisneros takes issue with
Mayer’s use of an inquiry focused on the “ordinary case.”
However, Mayer’s decision to use the ordinary-case
analysis has nothing to do with the kind of fact-based inquiry
rejected by the Supreme Court in Descamps. Descamps did
not address how the categorical approach should be applied
in the context of ACCA’s residual clause, because the
government forfeited its residual clause argument. 133 S. Ct.
at 2293 n.6. More to the point, Descamps went out of its way
to make clear that it “express[ed] no view” on Mayer’s
holding. 133 S. Ct. at 2293 n.6. This explicit disclaimer
means Descamps could not have disturbed Mayer’s
conclusion that a “prior conviction for first-degree burglary
in Oregon [is] a predicate ‘violent felony’ under the residual
clause of the [ACCA].” See 560 F.3d at 954. Mayer
therefore applies to Cisneros’s first-degree burglary

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convictions, which means those convictions qualify as violent
offenses for purposes of ACCA.3
CONCLUSION
Cisneros’s convictions in Oregon for fleeing or
attempting to elude police officers and first-degree burglary
qualify as predicate offenses under ACCA’s residual clause.
Therefore, the district court did not err in sentencing Cisneros
to the minimum 180 months’ imprisonment prescribed by
ACCA.
AFFIRMED.

3

Because Oregon’s first-degree burglary statute qualifies as a violent
felony under ACCA’s residual clause, we need not decide whether it also
qualifies as a violent felony under ACCA’s burglary clause.