Opinion
No. 11-30209 D.C. No. 6:10-cr-60117 HO
05-21-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES FRANKLIN ELLISON, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Charles Franklin Ellison pled guilty to an indictment charging him, among other things, as an Armed Career Criminal. The Armed Career Criminal Act ("ACCA") imposes a 15-year mandatory minimum sentence on a person convicted of being a felon in possession of a firearm who "has three previous convictions . . . for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). Ellison admits that his two drug convictions qualify as predicate felonies under the ACCA, but argues that his conviction for Oregon first-degree burglary, Or. Rev. Stat. § 164.225, does not. The district court rejected his argument. Reviewing de novo, United States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc), we affirm.
1. The ACCA's residual clause defines "violent felony" to include "any crime punishable by imprisonment for a term exceeding one year" that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). We have previously held that Oregon first-degree burglary categorically qualifies as a violent felony under the ACCA's residual clause. United States v. Mayer, 560 F.3d 948, 963 (9th Cir. 2009).
2. Ellison argues that the residual clause is void for vagueness because it does not "provide a person of ordinary intelligence fair notice of what is prohibited." United States v. Williams, 553 U.S. 285, 304 (2008). However, "[w]e consider whether a statute is vague as applied to the particular facts at issue, for a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2718-19 (2010) (internal quotation marks and alteration omitted).
Ellison was found with firearms on September 5, 2010. It was clear on that date that Oregon first-degree burglary qualified as an ACCA predicate offense. See Mayer, 560 F.3d at 963 (published March 16, 2009). Thus, Ellison was "on notice that [his] particular course of conduct [could] result in a mandatory minimum prison term of 15 years." James v. United States, 550 U.S. 192, 216 (2007) (Scalia, J., dissenting). Ellison may not complain that the residual clause is vague as applied to others.
Accordingly, the judgment of the district court is AFFIRMED.