NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JASON JAMES VEAL, AKA J

- Bone,

Defendant

- Appellant. No. 22

- 50107
D.C. No. 2:19

- cr - 00427

- VAP

- 8

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding Argued and Submitted July 13, 2023 Pasadena, California Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON, * * District Judge. Appellant Jason Veal appeals his mandatory minimum sentence of ten years ’ imprisonment, imposed after the d istrict c ourt accepted his plea to one count of conspiracy to distribute methamphetamine , in violation of 21 U.S.C. §§ 846,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Brian A. Jackson, United States District Judge for the Middle District of Louisiana, sitting by designation. 

# FILED

SEP 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

841(a)(1) & (b)(1)(A)(viii)

. The only issue presented here is whether the d istrict

c ourt correctly denied Veal’s request for a departure below the statutory

- minimum prison term pursuant to 18 U.S.C. § 3553(f)

— commonly known as the “Safety Valve”

— because his 1998 California conviction for attempted murder is no longer a prior “ violent offense ” after the Supreme Court’s decision in United States v. Taylor , 142 S. Ct. 2015 (2022). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C § 3742

. We affirm.
1. W e generally interpret statutes and the Sentencing Guidelines de

novo . United States v. Paulk , 569 F.3d 1094, 1094

- 95 (9th Cir.) , as amended (Aug. 6, 2009) . The Government, however, urges us to apply plain

- error review because Veal “ forfeited ” his claim by failing to raise it in the district court. There, Veal argued that he was Safety Valve eligible because even if attempted murder is a “violent offense,” it is nonetheless a prior 3

- point violent offense , not a prior 2

- point violent offense as required by 18 U.S.C. § 3553(f)(1)(C)

. 1 Ans’g Br. 20

- 21. “The ordinary rule in criminal cases

... is that ‘plain error’ review applies to arguments raised for the first time on appeal.” United States v. Lillard , 935 F.3d 827, 833 (9th Cir. 2019) (quoting United States v. Yijun Zhou , 838 F.3d 1007, 1010

1 The District Court rejected Veal ’s points

- based argument at sentencing citing our decision in United States v. Lopez , where we explained that a 3

- point violent offense

“ simultaneously ” serve s as a 2

- point violent offense

. 998 F.3d 431, 440 & n.10 (9th Cir. 2021)

. Veal ab andons that argument on appeal

.3

(9th Cir. 2016)). Veal’s Taylor

- based challenge to the District Court’s Safety Valve determination is a new argument raised for the first time on appeal, based on Supreme Court precedent that did not exist at the time of his sentencing. However, because whether attempted murder is a crime of violence under 18 U.S.C. § 16(a) is a purely legal question, see United State v. Studhorse , 883 F.3d 1198, 1203 n.3 (9th Cir. 2018), and the G overnment “will suffer no prejudice as a result of the failure to raise the i ssue in the trial court,” we review de novo

. Lillard , 935 F.3d at 833 (quoting United States v. Saavedra

- Velazquez , 578 F.3d 1103, 1106 (9th Cir. 2009)).
2. Veal is not eligible for Safety Valve relief

. For Safety Valve purposes, “the term ‘violent offense’ means a crime of violence, as defined in section 16, that is punishable by imprisonment.” 18 U.S.C. § 3553(g). Veal does not contest that his California attempted murder conviction satisfies § 3533(g)’s “imprisonment”
prong. T he only question is whether California’s definition of attempted murder is a “categorical match” with 18 U.S.C. § 16 (a)

— the “elements clause”

— which provides the “ generic ” federal defini tion of “crime of violence.” See Studhorse , 883 F.3d at 1203

. As Veal conceded at sentencing, we held in Studhorse that attempted first

degree murder under Washington state law is a “crime of violence” under § 16(a) because it “ha[s] as an element the intentional use, threatened use, or attempted use4

of physical force against a person.” Id. at 1206. We recently held that Studhorse remains good law following Taylor

. See Dorsey v. United States , No. 22

- 35030, 2023 WL 5159582, at *4 (9th Cir. Aug. 11, 2023) (“We join our sister circuits in concluding that Taylor does not require us to reconsider our precedent holding that attempted killing is a crime of violence.” )

. In doing so, we re - affirmed Studhorse’s central tenet that attempted first

- degree murder under Washington law is categorically a crime of viol ence because “‘ [e] ven if [the defendant] took only a slight, nonviolent act with the intent to cause another ’ s death, that act would pose a threat of violent force sufficient to satisfy’ the definition of a crime of violence.” Id. , at *4 (second alteration in original) (quoting Studhorse , 883 F.3d at 1206))

. 2 Further, we held that Studhorse’s categorical approach framework applies to all attempted murder conviction s , even if the defendant “ was convicted of attempted killing under a different law

. ” Id. Studhorse and Dorsey dictate the outcome here

. Veal concede s on appeal that the elements of attempted murder under California law are indistinguishable from the elements of attempted first

- degree murder under Washington law : each requires the defendant’s specific intent to kill plus a substantial step toward

2 Our holding in Dorsey is consistent with recent decisions of the Seventh and Eleventh Circuits, each affirming that attempted murder remains a “crime of violence” post

- Taylor

. See United States v. States , 72 F.4th 778, 790

- 91 (7th Cir. 2023); Alvarado

- Linares v. United States , 44 F.4th 1334, 1347 (11th Cir. 2022).5

achieving that objective

. Reply Br. 2. See People v. Decker ex rel. Superior Ct. , 157 P.3d 1017, 1021 (Cal. 2007) (“Attempted murder [under California law] requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.”). Because our recently re

- affirmed decision in Studhorse held that these elements establish a “categorical match” with § 16(a)’s definition of a “crime of violence,” 883 F.3d at 12 03

- 06 , Veal’s Taylor

based appeal is squarel y foreclosed. In sum, our precedent establishes that a California conviction for attempted murder is a “crime of violence” under § 16(a) and , by extension, a “violent offense” under the Safety Valve, 18 U.S.C. § 3553(g)

. Veal’s 1998 California attempted murder conviction is therefore “ simultaneously ” a prior 3

- point violent offense and a prior 2

- point violent offense

. See United States v. Lopez , 998 F.3d 431, 440 (9th Cir. 2021)

. Having also accumulated more than four criminal history points , Veal is not eligible for Safety Valve relief, and the District Court lacked authority to deviate below the ten

- year mandatory minimum prison sentence.
AFFIRMED.