United States v. Spencer

A conviction for criminal property damage in the first degree under § 708-820(1)(a) of the Hawaii Revised Statutes is categorically a crime of violence under the residual clause of § 4B1.2(a)(2) of the Sentencing Guidelines because it presents a “serious potential risk of physical injury to another,” and a defendant is therefore subject to the “career offender” sentencing enhancement under U.S.S.G. § 4B1.1.

After being convicted of two federal drug trafficking felonies, Ashford Kaipo Spencer was sentenced as a “career offender” under § 4B1.1 of the Sentencing Guidelines because of two prior convictions for “crimes of violence.” Spencer objected to the district court’s determination that his prior conviction for property damage in the first degree under § 708-820(1)(a) of the Hawaii Revised Statutes constituted a conviction for a “crime of violence.” In the alternative, he argued that the residual clause of U.S.S.G. § 4B1.2(a)(2) was unconstitutionally vague. After examining the Supreme Court’s interpretation of a nearly identical residual clause of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), the Ninth Circuit concluded that, as in ACCA cases, the interpretation of a “crime of violence” must be guided by the language of both the residual clause and the enumerated offenses preceding the residual clause. The panel applied the framework in United States v. Park, holding that Spencer’s conviction of criminal property damage in the first degree under Haw. Rev. Stat. § 708-820(a)(a) categorically constituted a “crime of violence,” which presented a serious potential risk of physical injury similar to the enumerated offenses in the preceding clause of U.S.S.G. § 4B1.2(a)(2). The panel also determined that Supreme Court precedents interpreting the ACCA residual clause to state an intelligible principle applied to the residual clause of the definition of a “crime of violence.” Thus, the panel held that the residual clause in § 4B1.2(a)(2) of the Sentencing Guidelines was not unconstitutionally vague. AFFIRMED.