United States v. 2020-03-20 | 18-10211 | USA V. STEVEN WALKER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN GERARD WALKER,
Defendant-Appellant.
No. 18-10211
D.C. No.
1:16-cr-00088-LJO-
SKO-1
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted October 24, 2019
San Francisco, California
Filed March 20, 2020
Before: Michael J. Melloy,
*
Jay S. Bybee, and N. Randy
Smith, Circuit Judges.
Opinion by Judge Bybee
*
The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

UNITED STATES V. WALKER2
SUMMARY
**
Criminal Law
The panel affirmed a criminal judgment in a case in which
the defendant, who pleaded guilty to being a felon in
possession of a firearm, challenged the application of a
fifteen-year-minimum sentencing enhancement under the
Armed Career Criminal Act (ACCA) based on his 1998,
1999, and 2014 domestic-violence convictions under
California Penal Code § 273.5.
The defendant argued that his § 273.5 convictions do not
qualify as categorical violent felonies under the ACCA. The
panel held that this contention is foreclosed by United States
v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010); Banuelos-
Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010); and United
States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. 2011).
Because no Supreme Court or en-banc opinion from this
court has obviously limited or otherwise abrogated those
decisions, and because the defendant did not show that
California law regarding § 273.5 has changed, the panel
reaffirmed Laurico-Yeno and its progeny.
The defendant also argued that the Sixth Amendment
requires a jury, not a sentencing judge, to find that a
defendant’s prior convictions were for crimes on different
occasions, and that the district court therefore transgressed
the Sixth Amendment by deciding that the defendant had
committed three separate felonies. The panel held that this
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. WALKER3
argument is foreclosed by United States v. Grisel, 488 F.3d
844 (9th Cir. 2007) (en banc), which held that a sentencing
judge may find the dates of prior offenses in deciding if a
defendant has committed three or more violent felonies. The
panel explained that because Mathis v. United States, 136
S. Ct. 2243 (2016), only proscribed judges from determining
whether a given factual scenario substantively qualifies as a
predicate offense, Grisel is not clearly irreconcilable with
Mathis’s reasoning or theory.
COUNSEL
Peggy Sasso (argued), Assistant Federal Defender; Heather
E. Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.

Ross Pearson (argued), Assistant United States Attorney,
Camil A. Skipper, Appellate Chief; McGregor W. Scott,
United States Attorney; United States Attorney’s Office,
Fresno, California; for Plaintiff-Appellee.
OPINION
BYBEE, Circuit Judge:
Defendant Steven Walker challenges the application of a
fifteen-year-minimum sentencing enhancement under the
Armed Career Criminal Act (ACCA) to his sentence for
being a felon in possession of a firearm. He makes two
arguments. First, he says that his predicate domestic-violence
convictions do not qualify as categorical violent felonies
under the ACCA. Second, he claims that the district court

UNITED STATES V. WALKER4
transgressed the Sixth Amendment by deciding that Walker
had committed three separate felonies. Walker’s assertions,
however, are foreclosed by precedent. As such, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Walker was found in possession of a firearm. He had
three prior felony convictions for “willfully inflict[ing]
corporal injury” on a spouse or cohabitant in violation of
California Penal Code § 273.5. His three prior convictions
occurred in 1998, 1999, and 2014.
Walker pleaded guilty to being a felon in possession of a
firearm. But he did not admit to having been convicted of
three separate incidents violating § 273.5. The United States
presented certified copies of the prior judgments. The district
court determined that Walker had been previously convicted
of three separate violent felonies, requiring that he be
sentenced to a mandatory-minimum fifteen-year sentence
under the ACCA. See 18 U.S.C. § 924(e)(1). He appeals this
sentence.
1
II. DISCUSSION
Walker raises two issues concerning his sentence. First,
he claims that his three prior convictions under California
Penal Code § 273.5 do not qualify as a “violent felony” under
the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Second, he argues
1
We review de novo a district court’s determination that a prior
conviction qualifies as a “violent felony” under the ACCA. United States
v. Walton, 881 F.3d 768, 770–71 (9th Cir. 2018). Constitutional questions
are also reviewed de novo. United States v. Holden, 908 F.3d 395, 399
(9th Cir. 2018).

UNITED STATES V. WALKER5
that it was error under Apprendi v. New Jersey, 530 U.S. 466
(2000), for the district court to have determined that his prior
convictions were separate incidents, and that such
determination had to be made by a jury. We will consider
each in turn.
A.Convictions Under § 273.5 Constitute a Categorical
“Violent Felony”
The ACCA makes it “unlawful for any person . . . who
has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . [to] possess
in or affecting commerce, any firearm . . . .” 18 U.S.C.
§ 922(g)(1). Any person who violates § 922(g)(1) “and has
three previous convictions . . . for a violent felony” shall be
imprisoned for a minimum of fifteen years. Id. § 924(e)(1).
A prior conviction may qualify as a “violent felony” only if
it “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). Walker contends that his convictions under
§ 273.5 cannot qualify because intent to harm the victim is
not an element of that crime.
2
Specifically, he points to
several California cases speaking to how convictions may be
obtained under various assault-and-battery statutes without
showing an intent to harm the victim.
Walker’s argument, however, collides headlong with our
precedents. In United States v. Laurico-Yeno, we determined
that § 273.5 was a “crime of violence” for the purposes of
U.S. Sentencing Guideline § 2L1.2(b)(1)(A). 590 F.3d 818,
2
Section 273.5 provides in relevant part: “Any person who willfully
inflicts corporal injury resulting in a traumatic condition upon a victim . . .
is guilty of a felony.” Cal. Penal Code § 273.5(a).

UNITED STATES V. WALKER6
821–23 (9th Cir. 2010). That provision increases a
sentence if the defendant committed three or more
“crimes of violence.” U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(3)(E) (U.S. Sentencing Comm’n 2018). “Crime
of violence” in the Sentencing Guidelines is defined
identically to the phrase “violent felony” in the ACCA:
“[a]ny 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.” Id. § 2L1.2
cmt. n.2. We therefore emphasized in Laurico-Yeno how
§ 273.5 punishes a “person who willfully inflicts” injury upon
a cohabitant “where willfully is a synonym for intentionally.”
590 F.3d at 821.
In Banuelos-Ayon v. Holder, we held that § 273.5 “is a
categorical crime of violence” for the purposes of 18 U.S.C.
§ 16(a), which has language identical to § 924(e)(1) and
U.S.S.G. § 2L1.2 Application Note 2. 611 F.3d 1080, 1086
(9th Cir. 2010). We specifically noted that under § 273.5 a
defendant must “willfully inflict[] . . . a direct application of
force on the victim.” Id. at 1084 (emphasis in original)
(quoting People v. Jackson, 91 Cal. Rptr. 2d 805, 810 (Cal.
Ct. App. 2000)).
We reaffirmed both Laurico-Yeno and Banuelos-Ayon in
United States v. Ayala-Nicanor, 659 F.3d 744, 753 (9th Cir.
2011). Ayala argued that Johnson v. United States, 559 U.S.
133 (2010), undermined Laurico-Yeno because even a “slight
touching” might constitute domestic violence under § 273.5.
Ayala-Nicanor, 659 F.3d at 749–50. We were not persuaded
by the argument that several California Court of Appeal
decisions showed minor touching could violate § 273.5. Id.
at 750. We explained that Laurico-Yeno had determined that
minimal touching could not give rise to a conviction under

UNITED STATES V. WALKER7
§ 273.5. Id. at 749–50. We concluded that “nothing in
Johnson undermines the validity of Laurico-Yeno, a
conclusion we already reached in Banuelos-Ayon, and that we
reaffirm today.” Id. at 752.
We find no grounds to depart from our prior reading of
§ 273.5 here.
3
As a three-judge panel, “[w]e will not overrule
the decision of a prior panel of our court absent an en banc
proceeding, or a demonstrable change in the underlying law.”
Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1070 (9th Cir.
2015). A panel may find controlling circuit precedent
overruled when “the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or
theory of intervening higher authority.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc) (emphasis
added). Generic assertions that our precedents are
inconsistent with higher authority will not do: “It is not
enough for there to be ‘some tension’ between the intervening
higher authority and prior circuit precedent, or for the
intervening higher authority to ‘cast doubt’ on the prior
circuit precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th
Cir. 2012) (citations omitted). Instead, “[t]he intervening
higher precedent must be ‘clearly inconsistent’ with the prior
circuit precedent.” Id.
No Supreme Court or en-banc opinion from our court has
obviously limited or otherwise abrogated our decisions in
3
Walker also asserts that interpretations of California’s general
assault-and-battery statutes are applicable here because § 273.5 is just
another battery statute and simple battery could include non-violent
touching. We considered and rejected this argument in Laurico-Yeno.
590 F.3d at 822. In that case we found this argument lacking and
concluded that § 273.5 penalizes domestic violence with “intentional use
of force that results in a traumatic condition.” Id.

UNITED STATES V. WALKER8
Laurico-Yeno, Ayala-Nicanor, or Banuelos-Ayon. Nor has
Walker shown that California law regarding § 273.5 has
changed. We therefore reaffirm Laurico-Yeno and its
progeny.
B.A Sentencing Judge May Determine the Number of Prior
Convictions
We turn next to Walker’s contention that the Sixth
Amendment forbids a sentencing judge from determining
whether prior convictions occurred on separate occasions.
For Walker to receive the fifteen-year mandatory minimum
under the ACCA, he must have had “three previous [violent
felony] convictions . . . committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Walker asserts
that the Sixth Amendment requires a jury, not a sentencing
judge, to find that a defendant’s prior convictions were for
crimes committed on different occasions. But, once again,
Walker’s argument is foreclosed by circuit precedent.
Under Apprendi, facts that increase the penalty of a
conviction must be found by the jury beyond a reasonable
doubt. 530 U.S. at 490. However, a sentencing judge may
find “the fact of a prior conviction” and enhance the sentence
accordingly. Id. The specific issue here is whether a judge
can find that each conviction was a “separate” incident for the
purposes of applying the ACCA.
We previously held that a sentencing judge may find the
dates of prior offenses in deciding if a defendant has
committed three or more violent felonies. See United States
v. Grisel, 488 F.3d 844, 845–47 (9th Cir. 2007) (en banc),
abrogated-in-part on other grounds by United States v. Stitt,
139 S. Ct. 399 (2018). Grisel rejected the argument that the

UNITED STATES V. WALKER9
sentencing judge’s finding the dates of a given offense fell
“outside [Apprendi’s] prior-conviction exception.” Id. at 846.
We explained that “the date of the offense” is a fact
determinable on “the face of the document demonstrating
Defendant’s prior conviction.” Id. at 847. Hence, the date of
the offense is intimately connected with the fact of a prior
conviction. Id. As we noted in Grisel, our decision accorded
with the decisions of no fewer than six circuits. See id. n.1;
see, e.g., United States v. Burgin, 388 F.3d 177, 186 (6th Cir.
2004) (“[T]he ‘different occasions’ requirement of § 924(e)
cannot be significantly distinguished from ‘the fact of a prior
conviction.’”). And, since Grisel, at least one other circuit
has found no Sixth Amendment problem with a sentencing
judge determining whether a defendant’s prior convictions
were for crimes committed on separate occasions. See, e.g.,
United States v. Blair, 734 F.3d 218, 228 (3d Cir. 2013)
(rejecting the argument that a jury must find the dates of prior
convictions and collecting cases explaining the same).
To get around Grisel, Walker claims that the case has
been implicitly overruled by Mathis v. United States, 136 S.
Ct. 2243, 2253 (2016). Specifically, he points to discussions
in Mathis explaining that a “non-elemental fact” cannot be
used to enhance sentences under the ACCA. Thus, he asserts
that because the dates of his prior convictions are non-
elemental facts, they cannot be considered by the sentencing
judge for the purposes of applying the ACCA.
Context, however, shows that Mathis is not so
encompassing as to abrogate Grisel. The only issue in Mathis
was whether judges could determine if a crime was an ACCA
predicate for statutes “enumerat[ing] various factual means of
committing a single element” of a given crime—i.e., whether
the categorical approach could apply to these types of

UNITED STATES V. WALKER10
statutes. Mathis, 136 S. Ct. at 2249. The Supreme Court’s
concern was that judges would necessarily consider the facts
underlying the offense—an approach antithetical to ACCA
jurisprudence. Id. at 2251. In line with the Court’s prior
holdings, Mathis concluded that “a sentencing judge may
look only to ‘the elements of the [offense], not to the facts of
[the] defendant’s conduct’” in determining whether the state-
law conviction was an ACCA predicate. Id. (alterations in
original). Mathis, therefore, only proscribed judges from
determining whether a given factual scenario substantively
qualifies as a predicate offense. See id. at 2252 (“[A] judge
cannot go beyond identifying the crime of conviction to
explore the manner in which the defendant committed that
offense.”). Mathis did not speak to courts looking at dates of
conviction.
With no on-point discussion in Mathis regarding how
judges determine the number of prior offenses, Walker fails
to show that Grisel “is clearly irreconcilable with [Mathis’s]
reasoning or theory.” Miller, 335 F.3d at 893. To the extent
that Mathis expresses broader disfavor of factual
determinations by sentencing judges, it is not clear whether
and how this disfavor extends beyond determining that a
given state-law crime is an ACCA predicate. See United
States v. Dunn, 728 F.3d 1151, 1156 (9th Cir. 2013)
(“Although the circuit opinion need not be expressly
overruled by the Supreme Court, both the circuit and
Supreme Court cases must be ‘closely on point.’” (quoting
Miller, 335 F.3d at 899)). Pointing to “‘some tension’
between [stray statements in Mathis] and prior circuit
precedent” is not enough for the panel to consider
Grisel overruled. Lair, 697 F.3d at 1207. In finding that
Walker had been convicted of three or more violent felonies,
the sentencing judge needed to look no further than the face

UNITED STATES V. WALKER11
of the certified judgments to determine these convictions
were for distinct acts. See United States v. Harris, 447 F.3d
1300, 1304 (10th Cir. 2006) (“The time, place, and substance
of the prior convictions can ordinarily be ascertained from
court records associated with those convictions, and the
Supreme Court has held that the Constitution allows
sentencing courts to rely on such records to make findings
about prior convictions.”); accord United States v. Thompson,
421 F.3d 278, 282–83 (4th Cir. 2005) (explaining that the
“date, statutory violation, and the like” are “as much a part of
the conviction as the fact that twelve jurors agreed about the
defendant’s guilt”); United States v. Santiago, 268 F.3d 151,
156 (2d Cir. 2001) (Sotomayor, J.) (“[W]e read Apprendi as
leaving to the judge, consistent with due process, the task of
finding not only the mere fact of previous convictions but
other related issues as well.”). Thus, per Grisel, the district
court did not err in making a finding that Walker committed
three separate offenses.
III. CONCLUSION
Despite his best efforts, Walker has failed to demonstrate
that our prior decisions are obviously inconsistent with
intervening Supreme Court opinions. We therefore cannot
and will not declare our prior precedents causa non grata.
The judgment is
AFFIRMED.