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-LJOSKO-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.
2 UNITED STATES V. WALKER

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); BanuelosAyon 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. WALKER 3

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
4 UNITED STATES V. WALKER

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. WALKER 5

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).
6 UNITED STATES V. WALKER

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. WALKER 7

§ 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. 
8 UNITED STATES V. WALKER

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. WALKER 9

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 nonelemental 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
10 UNITED STATES V. WALKER

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 statelaw 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. WALKER 11

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.”); accordUnited 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.