USA v. Matthew Derby, No. 10-30009 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 15 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-30009 D.C. No. 1:09-cr-30006-PA-1 v. MEMORANDUM * MATTHEW SHERIDAN DERBY, Defendant - Appellant. Appeal from the United States District Court for the District of Oregon Owen M. Panner, District Judge, Presiding Submitted October 4, 2010 ** Portland, Oregon Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges. Matthew Sheridan Derby appeals his sentence following his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Derby was sentenced to 180 months imprisonment pursuant to the Armed Career * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Criminal Act ( ACCA ), 18 U.S.C. § 924(e)(1). He argues that the district court erred in sentencing him to the ACCA mandatory minimum. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo whether a prior conviction is a predicate felony under the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc). We affirm. Derby s relevant criminal history includes prior convictions for: (1) unlawful delivery of methamphetamine, in violation of Or. Rev. Stat. § 475.890(2); (2) delivery of a controlled substance, in violation of Or. Rev. Stat. § 475.992(1)(B) (current version at Or. Rev. Stat. § 475.840); and (3) burglary in the first degree, in violation of Or. Rev. Stat. § 164.225. As explained below, these prior convictions are predicate offenses for purposes of the ACCA. This court s precedent clearly holds that a violation of Oregon s first-degree burglary statute, Or. Rev. Stat. § 164.225, is a predicate violent felony for purposes of the ACCA. United States v. Mayer, 560 F.3d 948, 962 (9th Cir. 2009). Similarly, violations of Or. Rev. Stat. §§ 475.890(2) and 475.992(1)(B) qualify as serious drug offenses for purposes of the ACCA. Under Oregon law, a person violates § 475.890(2) by deliver[ing] methamphetamine. A person violates § 475.992(1)(B) by manufactur[ing] or deliver[ing] a controlled substance. 2 Under the ACCA, a state conviction qualifies as a serious drug offense conviction if it involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law. 18 U.S.C. § 924(e)(2)(A)(ii). Sections §§ 475.890(2) and 475.992(1)(B) are both class B felonies under Oregon law, which carry a maximum term of imprisonment of ten years. Or. Rev. Stat. § 161.605(2). Derby argues that these prior drug convictions do not qualify as serious drug offenses under the ACCA because in both cases he faced a sentencing maximum of less than ten years under Oregon s sentencing guidelines. This argument is foreclosed by United States v. Parry, 479 F.3d 722, 724-25 (9th Cir. 2007), which held that the maximum sentence set forth in the statute, not Oregon s sentencing guidelines, determines the maximum term of imprisonment for purposes of the ACCA. Therefore, Derby s prior convictions for unlawful delivery of methamphetamine and delivery of a controlled substance are predicate offenses under the ACCA. Derby also challenges the district court s determination that his prior conviction under Oregon s second-degree burglary statute was a violent felony for purposes of the ACCA. The government in turn argues that Derby s prior 3 convictions under Oregon s attempt to elude a police officer statute are violent felonies under the ACCA. We need not address these questions because Derby s prior convictions for first-degree burglary, unlawful delivery of methamphetamine, and delivery of a controlled substance are ACCA predicate offenses. With three predicate offenses, the district court properly determined that the ACCA enhancement applied to Derby. AFFIRMED. 4

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