FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

S T E V E N G E R AR D WAL K

E R , 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 Subm itted October 24, 2019 San Francisco, California

Filed March 20, 2020

Before: Michael J. Melloy, * Jay S. Bybee, and N. Randy

Sm ith, 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.U N I T E D S TA T E S V

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SUMMARY * *

Criminal Law

The panel affirm ed a crim inal judgm ent in a case in which the defendan t , wh o pleaded guilty to being a felon in possession of a firearm
, c h a l le nged the application of a fifteen-year-m inimum sentencing enhancem ent under the Arm ed Career Crim inal A ct (ACCA) based on his 1998, 1 9 99, and 2014 dom estic-violence convictions und e r 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.3 d 818 (9th Cir. 2010); BanuelosAyon v. Holder
, 611 F.3d 1080 ( 9 t h Cir. 2010); and United States v. A

yala-Nicanor
, 659 F.3d 744 (9th Cir. 2011). Because n o Suprem e C ourt or en-ban c o p inion from this court has obviously lim ited or otherwise abrogat e d those decisions, and because the d efendant did n o t show that California law regarding § 2 7 3

. 5 has changed, the panel reaffirm ed Laurico-Yeno and its progeny.

The defendant also argued that the Sixth A m endm e n t requires a ju ry , n o t a sentencing judge, to find that a defendant’s prio r c onvictions were for crim es on different occasions, and that the district court ther e fo re transgressed the Sixth A m endm ent b y deciding that the defendant h ad

comm itted three separate felonies. The panel he ld that this

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TA T E S V

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argum ent is fo r e c l o s ed by United States v. Grisel
, 488 F.3d 844 (9th C ir. 2 007) (en banc), w hich held that a sentencing ju d g e may find the dates of prior o ffenses in deciding if a defendant has comm itted three or m ore v iolent felonies. The panel explained that b ecause Mathis v. United St a t e s , 136 S. C t. 2243 (2016), only proscribed judges from determ ining whether a given factual scenario substantively qualifies as a predicate offense, Gris el i s not clearly irreconcilable with Mathis ’s reasoning or theory.

C OUNSEL

Peggy Sasso (argued), As s istant Federal Defender; Heather E. Wi l liam s, Federal Defender; Office of the Federal Public Defender, Fresno, California; for Defendant-Appellant.

Ross Pearson (argued), A ssista nt United States Attorney, Cam il A. Skipper
, Appellate Chief; McGregor W

. Scott, United States Attorney; United States Atto rn ey’s Office, Fresno, California; for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Defendant Steven W alker challenges the application o f a fifteen-year-m inimum sentencing enhancem ent under the Arm ed Career Crim inal Act (ACCA) t o h i s sentence for being a felon i n possession of a f irearm

. He m akes two argum ents. First, h e say s th at h is predicate dom estic-violence convictions do not qu a l ify as categorical violent felonies under the ACCA. S e co n d
, h e claim s that the district courtU N I T E D S TA T E S V

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transgressed the Sixth Ame n d ment by deciding that W alker had comm itted three separate felonies. W alker’s assertions, however, are foreclosed by precedent. As such, we affirm

.
I. FACTS AND PROCEDURAL BACKGROUND

W alker was found i n po s session of a firearm

. He h ad three prior felony convictions for “willfu l l y inflict[ing] corporal injury” on a spouse or cohabitant in violation o f California Penal Co d e § 2 73.5. His three prior convictions occurred in 1998, 1999, and 2014.

W alker pleaded guilty to b eing a f elon in possession of a firearm

. But he did not adm it to h aving been convicted o f three separate incidents v iolating § 273.5. The United States presented certified copies of the prior judgm ents. The district court determ ined that W alker had been previously convicted of three separa te violent f elonies, requiring that h e be sentenced to a m andatory-m inim um fifteen-year sentence under the ACCA. See 1 8 U.S.C. § 924(e)(1). He appeals this sentence. 1

II. DISCUSSION

W alker raises two issues concerning his sentence. First, he claim s that his three prior conviction s under California Penal Code § 273.5 d o not qualify as a “violent felony” under the ACCA, 1 8 U.S.C. § 924(e)(2)(B)(i )

. Second, h e argues

1 W e review de n o vo a district court’s determ ination that a prior conviction q

ualifies as a “violent f

elony” under the ACCA. United States

v. Walton
, 881 F.3d 768, 770–71 (9th Cir. 2018). Constitutional questions

are also reviewed de novo. United St at es v. Holden
, 908 F.3d 395, 3 9 9 (9th Cir. 2018).U N I T E D S TA T E S V

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that it was error under Apprendi v. New Jersey
, 530 U.S. 466 (2000), for the district court to have d eterm ined that h is p rior convictions w ere separate incidents, and th at such determ ination had to be m ade by a jury. W e will consider each in turn.

A. Convictions Under § 273.5 Constitute a Categorical “Violent Felony”

The A CCA m akes it “unlawful for a ny person

. . . w ho ha s been convicted in any court of, a crim e punishable by im prisonm ent for a term exceeding one year

. . . [to] possess in or a ffe c t i n g comm erce, any firearm

. . . .” 18 U.S.C. § 922(g)(1). Any person who vi olates § 922(g)(1) “and has three previous convictions

. . . for a violent fe l o ny” shall be im p r i s o n e d for a m inimum of fifteen years. Id

. § 924(e)(1). A prior conviction m ay qualify as a “violent felony” only if it “has as an elem ent the use, attem pted use, or threatened use of physical force against the per s o n of another.” 1 8 U.S.C. § 9 2 4 (e)(2)(B)(i). W alker contends that his co nv ictio n s un d er § 273.5 cann o t qualify because intent to harm the victim is not a n e l em ent of that crim e. 2 S pecifically, he points to several California cases speaking to how convictions m ay be obtained under various assault-and-battery statutes wi t h out showing an intent to harm the victim

.

W alker’s argum ent, h owever, collides headlong w ith our precedents. In United States v. Laurico-Yeno
, we determ ined that § 273.5 w as a “crim e of v iolence” for the purposes o f U.S. Sentencing Guideline § 2 L1.2(b)(1)(A). 590 F.3d 818,

2 Section 273.5 provides in r elevant part: “Any person who willfully inflicts corporal injury r esulting in a traum atic condition upon a victim

. . . is guilty of a felony.” Cal. Penal Code § 273.5(a).U N I T E D S TA T E S V

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821–23 (9th Cir. 2010). That p rovis i on increases a sentence if the d efendant comm itted three or m ore “crim es of violence.” U.S. Sentencing Guidelines Manual § 2L1.2(b)(3)(E) (U.S. S entencing Comm ’n 2 018). “Crim e of violence” in the S entencing Guidelines is defined identica l l y to the phrase “violent felony” in the ACCA: “[a]ny other offense under federal, state, or local law that has

as an elem ent the use, attem pted use, or th r ea t e ned use o f physical force against th e pe rs o n of another.” Id

. § 2L1.2

cmt. n.2. W e therefo r e emp hasized in Laurico-Yeno h ow § 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 B anuelos-Ayon v. Holder
, we held t h a t § 273.5 “is a categorical crim e of violence” for the purposes of 18 U.S.C. § 16(a), wh i c h has language identical to § 924(e)(1) and U.S.S.G. § 2L1.2 Application Note 2

. 611 F.3d 1080, 1086 (9th C ir. 2 010). W e specifically no te d that under § 273.5 a defendant m

ust “willfully inflict[]

. . . a direct a pplication of force on the victim .” I d. at 1 084 (em

phasis in o riginal) (quoti n g People v. Jackson
, 91 Cal. Rptr. 2d 805, 810 (Cal. Ct. App. 2000)).

W e reaffirm ed b o th Laurico-Yeno and Banuelos-Ayon in United States v. Ayala-Nicanor
, 659 F.3d 744, 753 (9th Cir. 2011). A yala argued that Johnson v. United States
, 559 U.S. 133 (2010), underm ined Laurico-Yeno because even a “slight touching” m ight constitute dom estic violence under § 273.5. Ayala-Nicanor
, 659 F.3d at 749–50. W e were not persuaded by the argum ent that several C aliforni a Co u r t of Appeal decisions showed m inor touching could violate § 273.5. Id. at 7 5 0. W e explained that Laurico-Yeno had d eterm ined that

m inim al touching could not give rise to a convi c tion underU N I T E D S TA T E S V

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§ 2 7 3.5. Id. a t 7 4 9–50. W e concluded that “nothing in Johnson underm ines the v alidity of Laurico-Yeno
, a
co n clu sion we already reached in Banuelos-Ayon
, and that we reaffirm today.” Id. at 752.

W e find no grounds t o d e p a r t from our prior reading o f § 273.5 here. 3 As a three-judge panel, “[w]e will not overrule the decision o f a prior p a n e l o f our court absent an en banc proceeding, or a dem onstrable change in the underlying law.” Kohler v. Presidio Int’l, Inc.
, 782 F.3d 1064, 1 0 7 0 ( 9 th Cir. 2015). A panel m ay find controllin g c ircuit precedent overruled when “the reasoning or theory of o u r prior circuit author i ty is clearly irreconcilable with the reasoning o r theory of intervening higher authority.” Miller v. Ga mmie , 335 F.3d 889, 893 (9th Cir. 2003) ( e n b a nc ) (em phasis added). Generic as s e rtions that our precedents are inconsistent with higher authority wi ll not do: “It is not enough for there to be ‘som e tension’ between the intervening higher authority and p rior circuit precedent, o r f or the intervening higher a ut h o r ity to ‘cast doubt’ on the p rior circuit precedent.” Lair v. Bullock
, 697 F.3d 1200, 1207 (9th Cir

. 2 0 12) (citations om itted). Instead, “[t]he intervening higher precedent m

ust be ‘clearly inconsistent’ w ith the p rior circuit precedent.” Id.

No Suprem e Court or en-banc o pinion from our court has obviously lim ited or otherwise abr o g a te d our decisions in

3 Walker also asserts that interpretation s o f California’s general

a s sault-and-battery statutes are applicable here because § 273.5 i s j u s t another battery st atute and sim ple battery could include n on-violent touc h in g. W e considered and rejected this argum ent in Laurico-Yeno

. 590 F.3d at 822. In that case w e found t his argum ent lacking and concluded that § 273.5 penalizes d om estic violence with “intentional u se of force that results in a traum atic condition.” Id.U N I T E D S TA T E S V

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Laurico-Yeno
, Ayala-Nicanor
, or Banuelos-Ayon

. N or has W alker shown that Ca l ifornia law regarding § 273.5 has changed. W e therefore reaffirm La u rico-Yeno and its progeny.

B. A Sentencing Judge May Determine the Number of Prior Convictions

W e turn next to W alker’ s c ontention that the Sixth Amendm ent forbids a sentencing judge from determ ini n g wh e t h er prior convictions occurred o n separate occasions. For W alker to receive the fifteen-y e a r mandatory m inimum under the ACCA, he m

ust have had “three previous [violent felony] convictions

. . . commi tted on occasions different from one another.” 18 U.S. C. § 924(e)(1). W alker asserts that the S ixth Am endm ent r e quires a jury, not a sentencing judge, to find that a defendant’s prior convictions were for crim es comm itted on d i ffe r ent occasions. But, once again, W alker’s argum ent is foreclosed by circuit precedent.

Under Apprend i , f

acts that increase the p enalty of a conviction m

ust be found by the jury be y o n d a reasonable doubt. 530 U.S. at 4 90. H owever, a sentencing judge m ay find “the f act 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.

W e previously held that a sentencing judge m ay f ind the dates of prior offenses in deciding if a defendant has

comm itted three or m o re 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 argum ent that theU N I T E D S TA T E S V

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sentencing judge’s finding the d a t e s of a given o ffense fell “outside [ Apprend i ’s] p rio r

- co nv ictio n ex cep tio n

. ” Id. at 846. W e explained that “the date of t h e offense” is a fact determ inable on “the face of the docum ent d e mo n strating Defendant’s prior conviction.” Id. at 847. Hence, the date o f the offense is intim ately connected with th e fact of a p rior conviction. Id. As we noted in G risel
, our decision accorded with the de c is io n s o f n o fewer than six circuits. See id. n.1;
see, e.g. , U

nited States v. Burgin
, 388 F.3d 177, 186 (6th Cir. 2004) (“[T]he ‘diffe re n t occasions’ requirem ent of § 924(e) cannot be significantly distinguished f rom ‘the fact of a p rior

con v i c t i on.’”). And, since Grisel
, at least one other circuit has found no Sixth Am endm ent problem with a sentencing judge de t e r m ining whether a defendant’s prior convictions

were for crim es comm itted on separate occasions. See, e.g. , Uni te d States v. Blair
, 734 F.3d 218, 228 (3d Cir. 2 013) (rejecting the argum ent that a jury m u st find the d ates of p rior convictions and collecting cases explaining the sam e).

To get around Grise l
, W alker claim s that the case has been im plicitly overruled by Mathis v. U nited States
, 136 S. Ct. 2243, 2253 (2016). Specifically, h e points to d iscussions in Mathis e xplaining that a “non-elem ental fact” cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his p rior convictions are nonelem ental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.

Context, h owever, shows that Mathis is not so
encom passing as to abrogate Grisel

. The only issue in Mathis

was whether judges could determ ine if a crim e was an ACCA predicate f

or statu tes “ en um erat[ing] various factual m eans o f

comm itting a single elem ent” of a given crim e—i.e., whether the categorical approach could ap p ly t o these types o fU N I T E D S TA T E S V

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statutes. Mat h is , 1 3 6 S. Ct. at 2 249. The S uprem e Court’s

concern w as that judges would n ecessarily consider the facts underlying the o

ffense —an approac h antithetical to ACCA jur i s p ru dence. Id. at 2251. In line with the Court’s p rior h o ldings, Mathis concluded that “a sentencing judge ma y look only to ‘the elem ents of the [offense], not to the f acts o f [the] defendant’s conduct’” in determ ining whether the statelaw conviction was an ACCA predicate. Id

. (alterations in original). Mathis
, therefore, only proscribed judges from determ ining whether a given factual sc e n a rio substantively qualifies as a p redic at e offense. See id. at 2252 (“[A] judge cannot go bey o nd identifying the crim e of conviction to explore the m anner in which the defendant comm itted that offense.”). Mathis did not speak to courts looking at dates o f conviction.

W ith no on-point discussion in Mathis regard i n g h ow judges determ ine the num b er of prior offenses, W alker 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 broa d er disfavor of factual det e r m inations by sentencing judges, it is not clear whether and h ow this d i s fa v or extends beyond determ ining that a given state-law crim e i s a n ACCA p redicate. See United States v. Dunn
, 728 F.3d 1151, 1156 (9th Cir. 20 13) (“Although the circuit opinion n eed not be expressly overruled b y the Suprem e Court, both the circuit and Suprem e Court cases m

ust be ‘closely o n p oint.’” (quoting Miller
, 3 35 F.3d at 899)). Pointing to “‘som e tension’ between [ stray statem ents in Mathis ] and prior circuit precedent” is not enough for the p a n e l to consider Grise l overruled. Lair
, 697 F.3d at 1207. In finding that W alker had been convicted of three or m ore violent felonies, the sentencing judge needed to look n o further than the faceU N I T E D S TA T E S V

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of the certified judgm ents to determ ine these convictions

were for distinct acts. See United States v. Harris
, 447 F.3d 1300, 1304 (10th Cir. 2 0 06) (“The tim e, place, and substance of the prior convictions can ordinarily be ascertained from court records associated with those convictions, and the Suprem e Court has held that the Constitution allows sentencing courts to rely on such records t o ma k e findings about prior convictio n s. ”); a cco rd U n ited S ta tes v. T h o mpson , 4 21 F.3d 278, 282–83 (4th Cir. 2005) (explaining that t h e “date, statutory violation, and the like” are “as m uch a part o f the conviction as the fact that twelve jurors agreed about the defendant’s g uilt”); United States v. Santiago
, 268 F.3d 151, 156 (2d Cir. 2001) (Sotom ayor, J.) (“[W ]e read Apprendi as leaving to the judge, consistent with due process, the task o f finding not only the m ere fact of previous convictions but other related issues as w ell.”). Thus, per Grisel
, the dis t r i ct court did not err in m aking a finding that W alker comm itted three separate offenses.

III. CONCLUSION

Despite his best efforts, W alker has failed to dem onstrate that our prior decisions are obviously incons i s te nt with intervening Suprem e Court opinions. W e therefore cannot and wil l n o t declare o ur prior precedents causa non grata. The judgm ent is

AFFIRMED.