United States of America v. Byron Cornelius Prince

Byron Prince appeals the sentence imposed following his

conviction for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Prince challenges the

district court's conclusion that his prior California attempted

robbery conviction was a "violent felony” under the Armed

Career Criminal Act (ACCA). See 18 U.S.C.

§ 924(e)(1)–(2)(B). The district court did not err by ruling

that attempt to commit robbery under California Penal Code

§ 211 qualifies as a "violent felony” for purposes of the

ACCA because attempted robbery presents a serious potential

risk of physical injury to another, and because it is roughly

similar, in kind as well as in degree of risk posed, to burglary

and extortion, both of which are listed as violent felonies

under the ACCA.

FACTS

Prince accidentally shot himself with a revolver on June

21, 2011. The government indicted Prince for being a felon

in possession of a firearm, and a jury convicted him. Prince

was given a mandatory minimum sentence of fifteen years

imprisonment because the district court found he had three

prior convictions "for a violent felony . . . committed on

occasions different from one another,” one of which was

attempted robbery in California. 18 U.S.C. § 924(e)(1).

Prince appeals his sentence and conviction.1

1 We affirm the district court's judgment of conviction in a separate

memorandum disposition issued concurrently.

UNITED 4 STATES V. PRINCE

STANDARD OF REVIEW

Because Prince did not object in the district court on the

basis that his attempted robbery conviction was not a violent

felony, we review this issue for plain error. See Fed. R. Crim.

P. 52(b); United States v. Ameline, 409 F.3d 1073, 1078 (9th

Cir. 2005) (en banc). However, our conclusion would not

differ on de novo review.

DISCUSSION

The ACCA defines "violent felony” as:

any crime punishable by imprisonment for a

term exceeding one year . . . that—(i) has as

an element the use, attempted use, or

threatened use of physical force against the

person of another; or (ii) is burglary, arson, or

extortion, involves use of explosives, or

otherwise involves conduct that presents a

serious potential risk of physical injury to

another.

18 U.S.C. § 924(e)(2)(B).

The government argues that Prince's prior conviction for

attempted robbery in California categorically satisfies the

residual clause, because attempted robbery "involves conduct

that presents a serious potential risk of physical injury to

another.”

In California, "[r]obbery is the felonious taking of

personal property in the possession of another, from his

person or immediate presence, and against his will,

UNITED STATES V. PRINCE 5

accomplished by means of force or fear.” Cal. Penal Code

§ 211. "An attempted robbery requires a specific intent to

commit robbery and a direct, ineffectual act (beyond mere

preparation) toward its commission.” People v. Medina,

161 P.3d 187, 192 (Cal. 2007). Attempt "must go so far that

[it] would result in the accomplishment of the crime unless

frustrated by extraneous circumstances.” People v. Memro,

700 P.2d 446, 474 (Cal. 1985), overruled on other grounds by

People v. Gaines, 205 P.3d 1074 (Cal. 2009).

In United States v. Chandler, 743 F.3d 648, 650 (9th Cir.

2014), we established that the two-step framework for

determining whether a conviction under state law qualifies as

a crime of violence under the Sentencing Guidelines' Career

Offender enhancement also applies to determining whether a

crime is a violent felony under the ACCA's residual clause:2

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. 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.

2 "[A] violent felony as defined in the ACCA is nearly identical to a

'crime of violence' as defined in the Sentencing Guidelines' Career

Offender enhancement.” Chandler, 743 F.3d at 650 (comparing 18 U.S.C.

§ 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines Manual § 4B1.2(a)).

Thus, "we have used our analysis of the definition of crime of violence in

the Sentencing Guidelines to guide our interpretation of violent felony in

the ACCA.” Id.

UNITED 6 STATES V. PRINCE

Id. (alterations, citations, and internal quotation marks

omitted). Applying this framework, we conclude that

attempted robbery under California Penal Code § 211

qualifies as a violent felony under the ACCA's residual

clause.

I. Attempted robbery, in the ordinary case, presents a

serious risk of potential injury to another.

Prince argues that "[t]he elements of attempted robbery

do not present a serious potential risk of physical injury to

another” because the law in California permits convictions for

attempted use or threatened use of force against property, and

because "th[e] force need not be violent physical force.” The

problem with this argument is that the ACCA's residual

clause does not require the actual use of violent physical

force; it expressly requires only "conduct that presents a

serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).

As we previously stated in United States v. McDougherty,

920 F.2d 569, 574 (9th Cir. 1990), when considering whether

robbery as defined in California is a crime of violence for the

purposes of the Sentencing Guidelines § 4B1.2, robbery "is

certainly the kind of crime that presents a serious risk that

physical force may be used.” Where there is a serious risk

that physical force may be used directly against the victim or

in the victim's presence, there is a serious potential risk of

physical injury to another. This risk is illustrated by

numerous cases in which conduct resulting in conviction

under § 211 undeniably created a serious risk of physical

injury, or did in fact result in serious injury. See, e.g., People

v. Hensley, 330 P.3d 296, 303 (Cal. 2014) (defendant shot and

killed victim before taking his property); People v. Gomez,

UNITED STATES V. PRINCE 7

179 P.3d 917, 919–20 (Cal. 2008) (defendant fired shots at

victim while fleeing from scene of robbery); People v.

Bolden, 58 P.3d 931, 956 (Cal. 2002) (holding that jury could

infer that the defendant killed the victim primarily to facilitate

a robbery); People v. Ramirez, 39 Cal. App. 4th 1369,

1374–75 (1995) (defendant stabbed victim after taking

property). It may be possible to imagine a set of facts

involving an attempted robbery that does not present a serious

risk of potential injury to another, but our task is to consider

the risk posed in the ordinary case, Chandler, 743 F.3d at

650, and we have no difficulty in concluding California's

definition of attempted robbery satisfies this test.

The outcome of this case does not change because Prince

was convicted of attempted robbery rather than robbery. In

California, attempt "must go so far that [it] would result in

the accomplishment of the crime unless frustrated by

extraneous circumstances.” Memro, 700 P.2d at 474. We

have held that "an attempt to commit a crime of violence is

itself a crime of violence” under U.S. Sentencing Guidelines

Manual § 4B1.2. United States v. Wenner, 351 F.3d 969, 976

(9th Cir. 2003). Further, the primary risk of physical injury

associated with robbery does not come from the completed

taking of property; rather, it comes from the potential for use

of force and the potential for confrontation between the

robber and the victim or a third party. Cf. James v. United

States, 550 U.S. 192, 203–04 (2007) (holding that burglary

and attempted burglary create the same risk of face-to-face

confrontation.). Because the potential for confrontation or

use of force does not depend on the robber's success in taking

property, attempt to commit robbery presents the same

potential risk of injury as robbery itself.

UNITED 8 STATES V. PRINCE

II. The risk of injury in attempted robbery is roughly

similar, in kind and degree, to that of the offenses

enumerated in the ACCA.

When considering whether the risk of injury presented by

a state offense is roughly similar to that of the offenses

enumerated in the ACCA, we apply one of two standards.

See Chandler, 743 F.3d at 651. If the statute of conviction

involves a strict liability, negligence, or recklessness offense,

the conviction qualifies as a violent felony only if it

"involve[s] purposeful, violent, and aggressive conduct.” Id.

(quoting Begay v. United States, 553 U.S. 137, 144–45 (2008)

(internal quotation marks omitted)). For offenses that are not

strict liability, negligence, or recklessness crimes, we "focus

on whether the risk posed by the state offense 'is comparable

to that posed by its closest analog among the enumerated

offenses.' ” Id. (quoting James v. United States, 550 U.S.

192, 203 (2007)). Attempted robbery under California Penal

Code § 211 is a specific intent crime, Medina, 161 P.3d at

192, not a strict liability, negligence, or recklessness offense.

We therefore consider whether the risk it poses is comparable

to any of the offenses enumerated in the ACCA. See

Chandler, 743 F.3d at 651.

The ACCA lists burglary and extortion, among others, as

enumerated offenses. 18 U.S.C. § 924(e)(2)(B)(ii). 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). The generic definition of extortion is

"obtaining something of value from another with his consent

induced by the wrongful use of force, fear, or threats.”

Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409

(2003) (citations and internal quotation marks omitted).

UNITED STATES V. PRINCE 9

In Chandler, we held that conspiracy to commit robbery

under Nevada law qualified as a violent felony for purposes

of the ACCA because "conspiracy to commit robbery in

Nevada is . . . similar, in kind and degree of risk posed, to

extortion and burglary.” 743 F.3d at 655. Nevada's robbery

statute is very similar to California's.3 There are two

pertinent differences: first, in Nevada, robbery may be

committed by means of "force or violence or fear of injury,”

Nev. Rev. Stat. § 200.380, while in California robbery may

be committed only by means of "force or fear,” Cal. Penal

Code § 211; second, the Nevada statute defines who or what

the "force or violence or fear of injury” must be directed

towards, Nev. Rev. Stat. § 200.380, while the California

statute does not, Cal. Penal Code § 211. In the ordinary case,

conduct satisfying the definition of robbery in California

would also satisfy the definition of robbery in Nevada.

Though not dispositive, our conclusion in Chandler is

persuasive, and we employ the same framework here.

Attempted robbery in California poses risks similar to

generic burglary because the risk of injury in both robbery

and burglary "is 'the possibility of a face-to-face

confrontation' with the victim or an intervener” that may end

3 In Nevada:

[r]obbery is the unlawful taking of personal property

from the person of another, or in the person's presence,

against his or her will, by means of force or violence or

fear of injury, immediate or future, to his or her person

or property, or the person or property of a member of

his or her family, or of anyone in his or her company at

the time of the robbery.

Nev. Rev. Stat. § 200.380.

UNITED 10 STATES V. PRINCE

in violence. Chandler, 743 F.3d at 654 (quoting James,

550 U.S. at 203). As we observed in Chandler, "the risk

posed by robbery may actually be greater than the risk posed

by burglary because robbery requires taking from a person,

against his or her will, by means of force or violence or fear

of injury.” Id. at 655. In California, robbery may be

accomplished without directly "taking from a person,” but

because it cannot be accomplished without taking from the

victim's "person or immediate presence,” Cal. Penal Code.

§ 211 (emphasis added), it necessarily involves a risk of faceto-

face confrontation similar to that inherent in burglary.

To the extent that California Penal Code § 211 presents

some risks of injury different than the risk of face-to-face

confrontation inherent in burglary—because it encompasses

takings or attempted takings by means of fear and takings by

means of force directed against property, see United States v.

Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) ("Section

211 is broader [than generic robbery] because it encompasses

mere threats to property.”)—the conduct creating these types

of risks satisfies the generic definition of extortion. Taking

property by means of fear easily fits within the generic

definition of extortion. See Scheidler, 537 U.S. at 409

(defining extortion as "obtaining something of value from

another with his consent induced by the wrongful use of

force, fear, or threats” (emphasis added) (internal quotation

marks omitted)). And we have previously held that "[t]akings

through threats to property and other threats of unlawful

injury fall within generic extortion.” Becerril-Lopez,

541 F.3d at 891; see also Chandler, 743 F.3d at 654 (holding

that robbery in Nevada "satisfies the generic definition of

extortion” (alteration omitted)). Thus, the risks presented by

attempted robbery that differ from the risks presented by

UNITED STATES V. PRINCE 11

burglary are risks associated with generic extortion, another

crime enumerated in the ACCA.

We conclude that a conviction for attempted robbery

under California Penal Code § 211 is a violent felony under

the ACCA because, in the ordinary case, it poses a serious

potential risk of injury to another, and because it creates a

serious risk of harm roughly similar, in kind and degree of

risk posed, to the enumerated offenses burglary and extortion.

The sentence imposed by the district court is

AFFIRMED.