UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 15, 2010
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
SYLVESTER J. ALDERMAN, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding D.C. No. 2:08-cr-00084-MJP.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
Argued and Submitted July 6, 2009-Seattle, Washington.
Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges.
This is a sentence appeal, with two issues. We hold that the first degree theft crime under Washington law of which Alderman was convicted is a "crime of violence" for purposes of the guidelines enhancement, and that the shooting in this case was an assault under Washington law.
The district court and we have watched Alderman commit the crime on television. The events were recorded by a surveillance camera aimed at the Seattle apartment complex parking lot where they occurred. A man named Roosevelt Montgomery drove up and parked, approached Alderman, and they talked. Then Montgomery began punching Alderman. He got Alderman on the ground and landed numerous punches and a few kicks, while a woman apparently with Montgomery rifled Alderman's pockets. Then the beating ended, and Alderman backed away, hitching up his pants.
Alderman then drew a gun and started shooting toward Montgomery. The tables being turned by the gun, Alderman now chased Montgomery around Montgomery's car, shooting at him, as Montgomery tried to get into his car and drive away. Alderman fired eight shots at Montgomery as he chased him around his car and another car, then left, firing one additional parting shot. He never hit Montgomery, and Montgomery drove off. Montgomery later told police that he was grazed by one bullet, but he did not seek medical attention.
Alderman was a convicted felon, and the Glock nine millimeter pistol he had used to shoot at Montgomery was easily tied to him. He confessed and pleaded guilty to being a felon in possession.*fn1 In the plea agreement, he admitted that he had previously been convicted of second degree robbery and, in another case, first degree theft.
His guidelines calculation was adjusted upward for the prior felonies, on the theory that they were "crimes of violence."*fn2
An additional upward adjustment in his offense level was imposed on the theory that he had used the unlawfully possessed pistol "in connection with another felony," shooting at Montgomery.
Alderman argues that his prior theft conviction could not properly be counted as a "crime of violence" under the guidelines, and that shooting at Montgomery could not properly be deemed a felony.
We review the district court's interpretation of the U.S. Sentencing Guidelines de novo,*fn3 the district court's factual findings for clear error, and the district court's application of the Guidelines to the facts for abuse of discretion.*fn4
Alderman's Washington judgment says that he was convicted in 2005 of "theft in the first degree." The information alleged that he and Bobby Barnard Beasley assaulted a man and took his car "from the person" of the victim. The police report said that he and Beasley stuck a gun in a man's face as the victim was driving away from a Kentucky Fried Chicken, told him he was being robbed, and ripped a necklace off the victim's neck. The victim escaped as Alderman and Beasley drove off in the victim's car. Our question is whether the crime defined by the state statute is "categorically"*fn5 a crime of violence.
As Alderman concedes, we held in United States v. Jennings*fn6 that the relevant portion of Washington first degree theft was indeed a "violent felony" under the Armed Career Criminal Act.*fn7
The Armed Career Criminal Act uses the same definition for "violent felony" as the Guidelines do for "crime of violence."*fn8
Jennings applies our holding and reasoning in United States v. Wofford.*fn9 Alderman argues that Jennings and Wofford are no longer good law, because the Supreme Court in Begay v. United States*fn10 narrowed the construction of "violent felony" in a way that excludes Washington first degree theft from the "crime of violence" category.
 Wofford, another felon in possession case, did a categorical analysis of grand theft from a person under California law.*fn11 We held that California grand theft from a person was categorically a "violent felony" under the Armed Career Criminal Act because it required direct physical contact between the perpetrator and the victim, thereby creating a serious potential risk of physical injury to another.*fn12 We held that California grand theft from a person fell within the "otherwise" clause of the subsection of the "violent felony" definition:*fn13 "burglary, arson, or extortion, involved the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."*fn14 The risk of physical injury arose because the victim might resist or a bystander intervene and a struggle ensue.*fn15
Jennings, the Washington case, also involved a sentencing enhancement on a federal felon in possession conviction.*fn16
We held that the same conviction as Alderman's under the identical statute was categorically a "violent felony" under the Armed Career Criminal Act.*fn17 We held that Wofford controlled.*fn18
The government argues that we should review only for plain error, under Rule 52 and United States v. Olano,*fn19 because Alderman did not argue before the district court that Begay undermined Wofford and Jennings. Our analysis is unaffected by the different standard applicable to plain error, because we conclude that there would be no error even if Alderman had argued from Begay. Begay leaves the Wofford-Jennings holdings in force.
 In Begay, the prior conviction was for drunk driving. The question was whether felony driving under the influence under New Mexico law was a "violent felony" under the Armed Career Criminal Act.*fn20 The Court held that it was not.*fn21
The reason was that drunk driving was too dissimilar to the listed crimes - burglary, arson, extortion, and explosives crimes - to fall within the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause.
In our view, the provision's listed examples - burglary, arson, extortion, or crimes involving the use of explosives - illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that "presents a serious potential risk of physical injury to another."*fn22
The Court applied a straightforward ejusdem generis analysis, requiring that "otherwise" crimes be "roughly similar, in kind as well as in degree of risk involved" to the listed crimes.*fn23
The listed crimes "typically involve purposeful, violent and aggressive conduct," while drunk driving, though creating great risk to others, typically does not.*fn24 The listed crimes "also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger,"*fn25 while drunk driving does not.
Likewise, in Chambers v. United States the Court held that criminal "failure to report" for penal confinement was not a violent felony for purposes of the Armed Career Criminal Act.*fn26
The crime was malum prohibitum, not malum in se. The Court noted that "the crime amounts to a form of inaction," unlike the enumerated offenses in the statute.*fn27 Not showing up is unlikely to be "purposeful, violent, and aggressive" or to indicate "an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger."*fn28
 First degree theft under the pertinent Washington statute required, when Alderman committed it, a personal, physical encounter between thief and victim. The property had to be "taken from the person" of the victim, not just from his car or his house or business:
(1) A person is guilty of theft in the first degree if he or she commits theft of:
(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.
(2) Theft in the first degree is a class B felony.*fn29
This relevant aspect of Washington first degree theft is similar enough for ejusdem generis purposes to the listed crimes, "burglary, arson, or extortion, [or a crime that] involves use of explosives." Like burglary, indeed probably more than most burglaries, theft from the person is a purposeful aggressive act directed toward a person who, unless he submits, invites violence from the criminal. The thief has to be aggressive enough to intimidate the victim into submission or hopeful that despite personal contact the victim will not realize his possession was stolen until it is too late to resist. An offender bold and aggressive enough to steal from the person of another shows a greatly increased likelihood, compared to a drunk driver, that he is "the kind of person who might deliberately point the gun and pull the trigger."*fn30
"[P]urposeful, violent and aggressive"*fn31 conduct cannot mean that violence has to occur, because burglary, which is listed, does not require commission of a violent act or an intent to commit violence. The burglar may hope that the house is empty, an arsonist may hope that the building is empty, and an extortionist may hope that the victim just pays the money without resistance, but they cannot count on peaceful submission from the victim and have to be aggressive enough to be prepared for violent resistance. Where force is actually used or threatened, the crime falls under the first subsection of the guideline,*fn32 not the subsection which includes the "otherwise" clause covering burglary of a dwelling, etc. Because the first subsection would be superfluous if the "otherwise" clause in the second subsection required actual violence, the "otherwise" clause cannot be construed to require actual violence.*fn33
We held in United States v. Christensen*fn34 that under Begay, statutory rape is not a "violent felony" because statutory rape may involve consensual sexual intercourse, which is neither violent nor aggressive.*fn35 If not forcible, statutory rape may be just someone too old with a girlfriend or boyfriend too young. It is unlike the listed crimes in not being violent or aggressive (if not forcible) and does not give any indication that the older sexual partner is "the kind of person who might deliberately point the gun and pull the trigger."*fn36 Nor is it necessarily even purposeful, if the statute does not require knowledge of the victim's age.*fn37 We said that the conduct, to satisfy Begay, had to be purposeful, violent and aggressive, in the context of deciding whether statutory rape was like or unlike burglary of a dwelling, arson, extortion or explosives crimes for ejusdem generis purposes.*fn38 We of course had no occasion to decide just what "violent, purposeful and aggressive" meant in the context of a malum in se crime inherently more aggressive than one or two of the listed crimes. The central holding in Christensen is that we are to apply an ejusdem generis analysis to the "otherwise" clause, and that is what we have done. "The language of a decision is used to explain why the particular result follows from the concrete facts of the case, and must be read with reference to the dispute before the court in that case."*fn39
We distinguished Christensen in United States v. Terrell,*fn40 on the basis that "the 'typical' case of statutory rape does not involve violent and aggressive conduct," while rape that included sexual assault committed on a sleeping, drugged, or deceived victim left open the "possibility that the victim may figure out what's really going on and decide to resist," as may a victim of theft from a person.*fn41 Likewise we held in Terrell that burglary not in a dwelling fell within the "otherwise" clause even though it did not fall within the designated "burglary of a dwelling" crime.*fn42 (We note that the decision in Terrell is not yet final because the mandate has not issued.)
 Alderman also argues that his first degree theft conviction should be considered under Washington's 2008 statute,*fn43 not the 2005 statute under which he was convicted,*fn44 because the guidelines require that the defendant be sentenced under the version of the guidelines in effect at the time of sentencing.*fn45
He was indeed sentenced under the version of the guidelines then in effect, and those guidelines directed the court to look at the crime of which he was convicted.*fn46 He was convicted of the 2005 crime, not the crime as it might have been had he committed it three years after he did.
Alderman also argues that the district court should not have imposed the upward adjustment to his guidelines calculation for possessing the pistol he shot at Montgomery "in connection with another felony offense." His theory is that shooting at Montgomery nine times was not shown to be a felonious assault because the evidence did not show that he intended to hit Montgomery or that Montgomery was put in fear. The district judge found that Alderman shot at Montgomery "to frighten" and "from my review of the videotape, he accomplished that. That's an assault."*fn47 Indeed.