author: GRUENDER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Timothy ANDERSON, Defendant-Appellant
    No. 16-3053
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 7, 2017
    Filed: April 26, 2017

      Counsel who represented the appellant was James W. Schottel, Jr. of Saint Louis, MO.
    Counsel who represented the appellee was Kenneth R. Tihen, AUSA, and Tiffany Gulley Becker, AUSA, of Saint Louis, MO.
    Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
   GRUENDER, Circuit Judge.

A jury found Timothy Anderson guilty of one count of conspiracy to distribute heroin and one count of possessing heroin with the intent to distribute. Anderson appeals his conviction on the ground that the district court erroneously denied his pretrial motion to dismiss the indictment, which alleged that the prosecution violated the Religious Freedom Restoration Act (“RFRA”). See 42 U.S.C. § 2000bb-l. For the following reasons, we affirm.

I.

In May 2013, a grand jury indicted Anderson on one count of possession with intent to distribute heroin and one count of conspiracy to distribute heroin. See 21 U.S.C. §§ 841(a)(1), 846. Anderson filed a pretrial motion seeking dismissal of the indictment. In this motion, Anderson admitted that he distributed heroin, but he argued that the Government’s decision to prosecute him under the Controlled Substances Act (“CSA”) violated his free exercise rights under RFRA. Anderson alleged that he “is a student of Esoteric and Mysticism studies” who created “a religious non-[p]rofit” to distribute heroin to “the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.” As such, he argued that the Government’s decision to prosecute him violated RFRA because his practice of distributing heroin was “an exercise of [his] sincerely held religious belief.”

The district court denied Anderson’s pretrial motion. The court did not conduct an evidentiary hearing to determine the sincerity of Anderson’s religious beliefs. See United States v. Quaintance, 523 F.3d 1144, 1145 (10th Cir. 2008) (affirming dismissal of RFRA defense where the district court, “after conducting a three-day evi-dentiary hearing on the motion, determined that the defendants had not established the existence of a sincerely held religious belief’). Rather, .the court assumed for purposes of ruling on the motion that Anderson’s heroin distribution was an exercise of sincerely held religious beliefs and that the prosecution “substantially burdened” this “exercise of religion.” See 42 U.S.C. § 2000bb-l(a). Nevertheless, the court held that the Government had shown that its prosecution of Anderson was both “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling governmental interest.” See id. § 2000bb-l(b). Thus, the court denied Anderson’s motion and prohibited him from presenting this defense to the jury during trial. The jury convicted Anderson on both counts, and he was sentenced to 324 months’ imprisonment. Anderson now appeals, asserting that the district court erred in denying his motion to dismiss the indictment and in prohibiting him from presenting his RFRA defense to the jury.

II.

“A person whose religious practices are burdened in violation of RFRA may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.” United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012) (quotations omitted). “RFRA, enacted in 1993, amended all federal laws, including criminal laws, to include a statutory exemption from any requirement that substantially burdens a person’s exercise of religion unless that requirement is the least restrictive means to achieve a compelling government interest.” Id. “[I]n a RFRA analysis, a rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is both sincerely held by and rooted in the religious beliefs of the party asserting the claim or defense.” Id. at 710 (quotations omitted).

Here, the district court assumed without deciding that Anderson’s practice of distributing heroin was an exercise of sincerely held religious beliefs and that the prosecution therefore substantially burdened his exercise of religion. We note that a reasonable observer may legitimately question how plausible it is that Anderson exercised a sincerely held religious belief by distributing heroin. Nevertheless, because the district court did not hold an evidentiary hearing or make any factual findings regarding Anderson’s beliefs, we likewise will assume without deciding that the prosecution substantially burdened an exercise of religion. We review de novo the remaining questions of whether the prosecution (1) furthered a compelling governmental interest and (2) was the least restrictive means of furthering that compelling governmental interest. See id. at 708; 42 U.S.C. § 2000bb-1(b).

The Government first argues that it has a compelling interest in regulating heroin distribution because heroin is listed under Schedule I of the CSA and, as such, it has a high potential for abuse, has no currently accepted medical use in treatment, and lacks accepted safety for use under medical supervision. See 21 U.S.C. § 812(b)(1)(A)-(C). However, as the Supreme Court explained in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, “the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day.” 546 U.S. 418, 432, 126 S.Ct. 1211, 168 L.Ed.2d 1017 (2006). Rather, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31, 126 S.Ct. 1211 (quoting 42 U.S.C. § 2000bb-1(b)).

In O Centro, the Government sought to enforce the CSA against a religious group that used hoasca, another Schedule I drug, for sacramental purposes. The Court noted that “[f]or the past 35 years, there has been a regulatory exemption for the use of peyote — a Schedule I substance — by the Native American Church” and “[ejvery-thing the Government says about the DMT in hoasca ... applies in equal measure to the mescaline in peyote.” Id. at 433, 126 S.Ct. 1211. Thus, the Court concluded that the Government had not demonstrated a compelling interest in prohibiting the “circumscribed, sacramental use of hoasca” by this particular group. See id. at 432-33, 126 S.Ct. 1211.

Arguably, we could distinguish O Centro on the basis that heroin simply is more dangerous than either hoasca or peyote. However, we need not do so. Rather, we can distinguish O Centro on the basis that the Government in this case has demonstrated a different compelling interest. Unlike in O Centro, the Government is not prosecuting Anderson for engaging in a “circumscribed, sacramental use” of heroin. See id. Instead, the Government is prosecuting Anderson for distributing heroin to others for non-religious uses.

Indeed, in United States v. Christie, the Ninth Circuit held that the Government had demonstrated a compelling interest in bringing a similar prosecution for distribution of marijuana. 825 F.3d 1048, 1054, 1057 (9th Cir. 2016). There, a married couple operated the “Hawaii Cannabis Ministry,” which distributed cannabis to members in exchange for a “suggested donation price.” Id. at 1052-53. Becoming a member was not difficult, and even minors could do so. Id. Further, ministry employees did not confirm that the people receiving cannabis were members, and they did not advise the recipients that the cannabis was for religious purposes only. Id. at 1054. Thus, the court held that “[t]he record in this case succeeds where the record in O Centro fell short” because the Government had “a compelling interest in mitigating the risk that cannabis from the Ministry will be diverted to recreational users.” Id. at 1057.

Likewise here, Anderson does not even allege that the recipients of his heroin used it for their own religious purposes. Rather, he alleges only that his distribution allowed him to exercise his own religious beliefs. Thus, we have no difficulty concluding that prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users. See id. (“Such illegal, nonreligious use, by definition, finds no protection under RFRA.”).

We also have no difficulty concluding that the Government has chosen the least restrictive means necessary to further that interest. As with the compelling interest test, RFRA “requir[es] the Government to demonstrate that application of a substantial burden to the person ... is the least restrictive means of furthering [that] compelling governmental interest.” Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 2780, 189 L.Ed.2d 675 (2014) (quotations and alterations omitted). Here, as in Christie, the Government could not “achieve its compelling interest to the same degree while exempting [Anderson] from complying in full with the CSA.” See Christie, 825 F.3d at 1061. Indeed, we see no way for the Government to accommodate Anderson while still furthering its interests. Anderson “cannot simply point to other groups who have won accommodations for the sacramental use of peyote and hoasca ... because the government has shown material differences between those particular groups and their sacramental practices, on the one hand, and [Anderson] and [his] religious exercise, on the other.” See id. Specifically, Anderson’s religious exercise involves heroin distribution. Moreover, Anderson has indicated that he will not stop distributing heroin under any circumstances, stating that he “does not want to compromise his faith in any way.” As such, we are convinced that prosecuting Anderson under the CSA represents the least restrictive means for the Government to further its compelling interest in mitigating diversion of heroin to recreational users. Therefore, we reject Anderson’s RFRA defense. .

Furthermore, we reject Anderson’s argument that he was entitled to present his RFRA defense to the jury. Because the district court concluded that prosecuting Anderson under the CSA was the least restrictive means to further a compelling governmental interest, it was proper for the court to reject Anderson’s RFRA defense as a matter of law and to prohibit him from raising it again at trial. See In re Young, 82 F.3d 1407, 1419 (8th Cir. 1996) (noting that “compelling governmental interest” and “least restrictive means” inquiries are “questions of law”), vacated & remanded sub nom. Christians v. Crystal Evangelical Free Church, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997), reinstated in relevant part, 141 F.3d 854, 856 (8th Cir. 1998); United States v. Brown, No. 95-1616, 1995 WL 732803, at *2 (8th Cir. 1995) (unpublished) (affirming district court’s ruling that defendant could not prevail under RFRA and that he may not present evidence on this issue at trial).

III.

For the foregoing reasons, we affirm.

      . The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri.

      . In fact, the trial evidence established that Anderson supplied heroin to multiple co-conspirators who sold it to their own customers, with no evidence of religious concerns or uses.


source: Caselaw Access Project

author: GRUENDER, Circuit Judge. ■

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jason Daniel SIMS, Defendant-Appellant
    No. 16-1233
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 10, 2017
    Filed: April 27, 2017

      Counsel who filed a brief and presented argument on behalf of the appellant was Chris Tarver, AFPD, of Little Rock, AR.
    Counsel who presented argument on behalf of the appellee was Stephanie Mazzan-ti, AUSA, of Little Rock, AR. The following attorney appeared on the appellee brief; Edward 0. Walker, AUSA, of Little Rock, AR.
    Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and SCHREIER, District Judge.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation.

   GRUENDER, Circuit Judge. ■

Jason Daniel Sims pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He received an enhanced sentence pursuant to the Armed Career Criminal Act (“ACCA”), which applies to those felons guilty of possessing a firearm who also have at least three prior convictions for a violent felony or serious drug offense. See 18 U.S.C. § 924(e). On appeal, Sims contends that the district court erred in finding that his two prior Arkansas residential burglary convictions qualify as violent felonies because the Arkansas residential burglary offense is categorically broader than generic burglary. We agree and therefore vacate Sims’s sentence and remand for resentencing.

The ACCA imposes a fifteen-year mandatory minimum sentence for anyone convicted of unlawfully possessing a firearm who has three or more prior convictions for serious drug offenses or violent felonies. 18 U.S.C. § 924(e)(1). “Burglary” is one of the offenses specifically enumerated as a violent felony under the ACCA. See id. § 924(e)(2)(B)(ii). In the ACCA context, the Supreme Court has defined burglary in its “generic” usage as “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” See Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2148, 109 L.Ed.2d 607 (1990).

Sims’s Pre-Sentence Investigation Report (PSR) indicated that he had several prior felony offenses, including two convictions for serious drug offenses and two Arkansas convictions for residential burglary. The PSR stated that all four convictions qualified as ACCA predicate offenses and thus determined that Sims was subject to a minimum sentence of fifteen years as well as an advisory sentencing guideline enhancement based on his status as an armed career criminal. See U.S.S.G. § 4B1.4. Sims conceded that his two convictions for serious drug offenses constituted ACCA predicate offenses but argued that his Arkansas residential burglary convictions did not. He asserted that the Arkansas residential burglary statute was over-inclusive and criminalized conduct that fell outside the generic definition of burglary. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143.

The district court disagreed with Sims and found his Arkansas residential burglary convictions were ACCA predicate offenses. As a result, Sims’s advisory sentencing guidelines range was 188 to 235 months’ imprisonment, and the district court imposed a 210-month sentence. On appeal, Sims renews his argument that Arkansas residential burglary is broader than generic burglary and that his convictions do not qualify as ACCA predicate offenses.

Under Arkansas law, “[a] person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(l). A “ ‘[rjesidential oc-cupiable structure’ means a vehicle, building, or other structure: (i) [i]n which any person lives; or (ii) [tjhat is customarily used for overnight accommodation of a person whether or not a person is actually present.” Id. § 5-39-101(4)(A). The Government concedes that the Arkansas residential burglary statute’s listed items are separate means of satisfying a single locational element. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248-49, 195 L.Ed.2d 604 (2016) (‘“Elements’ are the constituent parts of a crime’s legal definition — the things the prosecution must prove to sustain a conviction.... [Mjeans ... spell[ ] out various factual ways of committing some component of the offense.... ” (citations and quotations omitted)). Thus, “we apply the ‘categorical approach,’ under which we ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Tucker, 740 F.3d 1177, 1179 (8th Cir. 2014) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In short, Sims’s Arkansas residential burglary convictions will qualify as generic burglaries — and thus serve as ACCA predicates — “only if the statute’s elements are the same as, or narrower than, those of the generic offense.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). We review the question of whether a prior conviction qualifies as an ACCA predicate de novo. United States v. Thornton, 766 F.3d 875, 878 (8th Cir. 2014).

Sims’s central contention is that generic burglary’s “building or structure” element does not encompass vehicles, and thus, the Arkansas residential burglary statute sweeps more broadly than generic burglary. The Supreme Court has clearly stated that “[tjhe [ACCA] makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.” Shepard v. United States, 544 U.S. 13, 15-16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (emphasis added). In Mathis v. United States, the Court considered an Iowa burglary statute that all parties agreed criminalized more conduct than generic burglary. 136 S.Ct. at 2250. The Iowa statute made it a crime to burgle “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.” See Iowa Code Ann. § 702.12; Mathis, 136 S.Ct. at 2250. The Supreme Court agreed that the Iowa- burglary statute was over-inclusive for the simple reason that the burglary statute “reache[d] ... land, water, or air vehicle[s].” Mathis, 136 S.Ct. at 2250 (emphasis in original). Thus, the Court determined that convictions under the Iowa burglary statute could not serve as ACCA predicate offenses. Id. at 2257.

The Government responds that while the burglary of vehicles does not constitute generic burglary, the Arkansas residential burglary statute applies only to vehicles “[i]n which any person lives” or “[t]hat [are] customarily used for overnight accommodation,” see Ark. Code Ann. § 5-39-101(4)(A), and therefore, Arkansas residential burglary criminalizes conduct that is “the same as, or narrower than ... the generic offense,” see Descamps, 133 S.Ct. at 2281. The Government’s argument is not an unreasonable one as this issue has divided circuit courts. Compare United States v. Spring, 80 F.3d 1450, 1461-62 (10th Cir. 1996) (holding burglary of vehicles “adapted for the overnight accommodation of persons” constitutes generic burglary) (cited approvingly in United States v. Patterson, 561 F.3d 1170, 1173 (10th Cir. 2009), with United States v. White, 836 F.3d 437, 444-46 (4th Cir. 2016) (concluding a statute criminalizing burglary of “vehicle[s] primarily designed for human habitation and occupancy” sweeps more broadly than generic burglary), and United States v. Grisel, 488 F.3d 844, 850-51 (9th Cir. 2007) (en banc) (ruling that burglary of “any booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodation of persons or for carrying on business therein” falls outside generic burglary). We are not, however, writing on a blank slate, as our decision in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), forecloses the Government’s argument.

In Lamb, we analyzed a Wisconsin statute that criminalized, among other things, the burglary of “[a] motor home or other motorized type of home or a trailer home, whether or not any person is living in such home.” Lamb, 847 F.3d at 931. We concluded “[without question, [the statute], viewed as a whole, encompasses a broader range of conduct than generic burglary as defined in Taylor, such as burglary of ... motor homes.” Id. Wisconsin’s statute criminalizing the burglary of a “motor home” is equivalent to Arkansas’s residential burglary statute, which criminalizes the burglary of vehicles where people live or that are customarily used for overnight accommodations. See White, 836 F.3d at 445-46; see also Grisel, 488 F.3d at 851 n.5. And just as it was inconsequential that Wisconsin’s statute limited burglary to motor homes, it is inconsequential that Arkansas’s statute confines residential burglary to vehicles “[i]n which any person lives” or “[t]hat [are] customarily used for overnight accommodation.” Ark. Code Ann. § 5-39-101(4)(A); see also United States v. Forrest, 611 F.3d 908, 913 (8th Cir. 2010) (finding a Colorado burglary statute was categorically broader than generic burglary because it covered vehicles adapted for overnight accommodations). We therefore conclude that Arkansas residential burglary categorically sweeps more broadly than generic burglary.

Accordingly, Sims’s Arkansas residential burglary convictions do not qualify as ACCA predicate offenses. We thus vacate Sims’s sentence and remand for resentenc-ing.


author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. John T. BEYERS, Defendant-Appellant United States of America, Plaintiff-Appellee v. John T. Beyers, Defendant-Appellant
    No. 16-1441, No. 16-1443
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: April 27, 2017
    Rehearing and Rehearing En Banc Denied June 6, 2017

      Counsel who represented the appellant was Stephen C. Moss, AFPD, of Kansas City, MO.
    Counsel who represented the appellee was Catherine A. Connelly, of Kansas City, MO.
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

John Beyers was caught with child pornography in May 2013, less than a year after getting out of prison for a 2007 child-pornography conviction. Beyers pled guilty to accessing and possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and possessing child obscenity, see M. § 1466A(b)(2), and also admitted violating the terms of his supervised release. The district court sentenced Beyers to the statutory mandatory minimum for each offense-ten years for the 2013 counts and-five for the supervised-release violation, see id. §§ 2252(b)(2), 3583(k) — and ran the sentences for the new conduct concurrently to each other, but consecutively to the revocation sentence. See id. § 3584(a) (concurrent and consecutive sentences). Beyers argues making the sentences consecutive was an abuse of discretion and his resulting fifteen-year term of imprisonment is substantively unreasonable. See 28 U.S.C. § 1291 (appellate jurisdiction); United States v. Moore, 565 F.3d 435, 437-38 (8th Cir. 2009) (abuse-of-discretion standard of review). Beyers’s appeal centers on how the district court weighed different aspects of his background in reaching its decision.

First, Beyers identifies three mitigating factors he says the district court ignored. Two of these are childhood traumas that, according to Beyers, “have influenced his behavior and his addiction to child pornography”: the sexual abuse Beyers himself suffered when he was a young child and Beyers’s father committing suicide when Beyers was a teenager. The third mitigating factor is Beyers’s amenability to therapy and desire for treatment.

The district court did not ignore these matters — they were a major focus of Beyers’s sentencing hearing. The district court heard about Beyers’s background, past treatment, and wish for help “get[ting] out from underneath [his addiction]” from both Beyers and a therapist who reviewed Beyers’s file and interviewed him. The district court actively questioned both of them about the treatment options available to Beyers during his incarceration. The district court directly responded to Beyers’s argument about his need for treatment when it told him “this is ultimately your responsibility and something that you have to take control of, and there’s only so much that others can do to help you address this problem.”

“[W]here the district court heard argument ... about specific ... factors, we may presume that the court considered those factors” even if the court did not address them expressly. United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009). Here, where the district court did expressly address the essence of Beyers’s position — that he must recognize his problem and where it comes from and must want to overcome it, and needs more and better help to do so — we are satisfied the district court did not “ ‘fail[ ] to consider a relevant factor that should have received significant weight.’ ” Moore, 565 F.3d at 438 (quoting United States v. Kowal, 527 F.3d 741, 749 (8th Cir. 2008)).

On the other side of the scale, Bey-ers argues the district court should not have faulted him for “argufing] [he had] never harmed anyone.” According to Bey-ers, he misspoke when he said, in his allocution, “I’ve never hurt any person.” Beyers insists he fully appreciates the “devastating” harm caused by the production and use of child pornography, having been sexually abused as a child himself, and just meant “he had not physically hurt a child through actual sexual contact.” The record makes clear the district court knew what Beyers meant and simply took issue with how he said it. In the district court’s words: “I understand what you’re saying, but the problem is this is a very serious offense that has devastating consequences to the victims of this offense.” Although the district court made a point of repudiating Beyers’s literal claim, its explanation for running the sentences consecutively focused on the severity of what Beyers did and his history of failed treatment rather than on this isolated statement. Further, even if the district court’s ruling was attributable in some part to Beyers’s unfortunate phrasing, we see no abuse of discretion in viewing Beyers’s emphasis on crimes he did not commit as potentially reflecting a failure to come to terms with the “devastating consequences to the victims of this offense.”

We also reject Beyers’s claim that the district court improperly punished him for “point[ing] out deficiencies in the treatment he received” before and after his 2007 conviction. He is referring to the district court’s statement: “I’m really troubled by this consistent argument — or at least explanation, maybe, would be a better phrase — that the treatment wasn’t sufficient.” Beyers counters with assertions about what the record does and does not show — “[tjhere is no factual support in the record to buttress the notion that therapy would not work or that Mr. Beyers was somehow responsible for his lack of success in his past efforts” and, to the contrary, parts of the record affirmatively “suggest[ ] that there was a problem with the sex offender treatment” Beyers received. That response aims at the wrong target. The sort of evidence Beyers describes (or its absence) goes to whether Beyers’s explanation that he reoffended because the system failed him was accurate, but that is not the issue the district court addressed.

Rather, the district court thought Bey-ers’s proffered explanation was significant and troubling primarily because, in the district court’s view,'Beyers’s focus on the failure of his past treatment — whoever was to blame — implied he did not fully accept that his new crimes were still “ultimately [his] responsibility.” The district court’s comments also suggest Beyers’s past inability to control his conduct through treatment (again, whatever the cause or the quality of the treatment) contributed to the district court’s “concern” about the risk of Beyers reoffending again and the need to protect the public. See 18 U.S.C. § 3553(a)(2)(C). Both lines of reasoning and concern strike us as entirely reasonable. Neither was an abuse of discretion.

Beyers’s last argument is that, in making his sentences consecutive, the district court clearly misjudged the proper balance between the various sentencing factors it weighed. On this point, Beyers mainly just repeats his theories about which factors the district court should and should not have considered. The only real addition is Beyers’s suggestion that the district court should have given him more credit for recognizing his “problem” and wanting to change, because “[ajcting as [one’s] own mental health advocate and asking for better therapy ... is taking responsibility.” Yet “ ‘[a] sentencing court has wide latitude to weigh the section 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.’ ” United States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011) (quoting United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010)); see also id. (“Simply because the district court weighed the relevant factors more heavily than [a defendant] would prefer does not mean the district court abused its discretion.”). The district court’s decision to run the sentences consecutively was also reinforced by other considerations whose countervailing weight Beyers does not address at all, notably the district court’s “concern” that accessing and possessing child pornography “creates a danger to the public” and that “the ramifications [for violating the terms of supervised release] have to be appropriate.”

The relevant policy statement from the U.S. Sentencing Commission recommends making prison terms for violating supervised-release conditions consecutive to any other sentences. See United States Sentencing Guidelines § 7B1.3(f) & cmt. n.(4). It was not an abuse of discretion for the district court to follow that advice here.

Beyers’s sentences are affirmed.

      . The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.

      . Similarly, in response to Beyers’s suggestion that the fact he never physically abused a child "should have been [a] mitigating factoid],” we simply observe that Beyers was sentenced for accessing and possessing pornographic arid obscene pictures of children, see 18 U.S.C. §§ 2252(a)(4)(B), 1466A(b)(2), nothing else. Had Beyers committed other crimes, he would have faced the possibility of other charges and a longer sentence. In short, the hypothetical crimes Beyers did not commit do not mitigate the real ones he did.


author: THOMAS, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alexis Torres SIMON, Defendant-Appellant.
    No. 15-10203
    United States Court of Appeals, Ninth Circuit.
    Filed JANUARY 27, 2017
    D.C. No. 2:13-cr-00148-JAD-GWF-2, District of Nevada, Las Vegas
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.


text:
    FOWLER PACKING COMPANY, INC.; Gerawan Farming, Inc., Plaintiffs-Appellants, v. David M. LANIER, in his official capacity as Secretary of the California Labor and Workforce Development Agency; Christine Baker, in her official capacity as the Director of the Department of Industrial Relations; Julie A. Su, in her official capacity as California Labor Commissioner, Defendants-Appellees.
    No. 16-16236
    United States Court of Appeals, Ninth Circuit.
    Filed December 09, 2016
    D.C. No. 1:16-cv-00106-D AD-SAB, Eastern District of California, Fresno
    David Schwarz, Esquire, Irell & Manella LLP, Los Angeles, CA, for Plaintiffs-Ap-pellánts.
    Mark Randolph Beckington, Supervising Deputy Attorney General, California Department of Justice, Los Angeles, CA, Thomas M. Patton, Attorney, AGCA-Of-fice of the California Attorney General, Sacramento, CA, for Defendants-Appel-lees.
    Wencong Fa, Pacific Legal Foundation, Sacramento, CA, for Amici Curiae African-American Farmers of California, California Farm Bureau Federation, California Fresh Fruit Association, Fresno County Farm Bureau, Nisei Farmers League, Western Growers.
    Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
   ORDER

Plaintiffs in the case appeal a district court’s order dismissing claims that a California law violates the Bill of Attainder Clause, U.S. Const, art. I, § 10, cl. 1 (the “bill of attainder claim”), and the Equal Protection Clause, U.S. Const, amend. XIV, § 1 (the “equal protection claim”). We conclude that the district court correctly dismissed the bill of attainder claim, but erroneously dismissed the equal protection claim. We therefore AFFIRM in part and REVERSE in part, and REMAND the case to the district court for further proceedings with respect to the equal protection claim only. A written opinion giving the court’s reasoning will follow in due course.

The time for filing any petition for rehearing or petition for rehearing en banc shall be extended and shall not begin to run until the court has filed its written opinion giving its reasoning.


text:
    John TEIXEIRA; Steve Nobriga; Gary Gamaza; Calguns Foundation, Inc., (CGF); Second Amendment Foundation, Inc., (SAF); California Association of Federal Firearms Licensees, (Cal-FFL), Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; Alameda County Board of Supervisors, as a policy making body; Wilma Chan, in her official capacity; Nate Miley, in his official capacity; Keith Carson, in his official capacity, Defendants-Appellees.
    No. 13-17132
    United States Court of Appeals, Ninth Circuit.
    Filed December 27, 2016
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.


text:
    John TEIXEIRA; Steve Nobriga; Gary Gamaza; Calguns Foundation, Inc., (CGF); Second Amendment Foundation, Inc., (SAF); California Association of Federal Firearms Licensees, (CAL-FFL), Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; Alameda County Board of Supervisors, as a policy making body; Wilma Chan, in her official capacity; Nate Miley, in his official capacity; Keith Carson, in his official capacity, Defendants-Appellees.
    No. 13-17132
    United States Court of Appeals, Ninth Circuit.
    Filed December 27, 2016
    D.C. No. 3:12-cv-03288-WHO
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nicholas LINDSEY, Defendant-Appellant.
    No. 14-10004
    United States Court of Appeals, Ninth Circuit.
    Filed February 3, 2017
    D.C. No. 2:ll-cr-00217-LDG-CWH-l
    Before: Susan P. Graber, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

       After oral argument in this case, and our former opinion and memorandum disposition filed June 28, 2016, and after the petition for rehearing or rehearing en banc was filed on August 19, 2016, Judge Graber on January 26, 2017, replaced Judge Noonan on this panel.

   ORDER

The Defendant-Appellant’s petition for rehearing is GRANTED. The prior opinion and memorandum disposition filed June 28, 2016, are withdrawn. A substitute opinion and substitute memorandum disposition shall be filed in due course.


author: KOBAYASHI, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hugo Salvador RIVERA-MUNIZ, AKA Hugo Salvador Rivera, AKA Hugo Salvadore Rivera, Defendant-Appellant.
    No. 15-10560
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 16, 2016 San Francisco, California
    Filed April 20, 2017

      Stephanie Bond (argued), The Law Offices of Stephanie K. Bond P.C., Tucson, Arizona, for Defendant-Appellant.
    Lauren G. LaBuff (argued), and Christina M. Cabanillas, Assistant United States Attorneys; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Ap-pellee.
    Before: JAY S. BYBEE and N. RANDY SMITH, Circuit Judges, and LESLIE E. KOBAYASHI, District Judge.

       The Honorable Leslie E. Kobayashi, Judge for the United States District Court for the Dis-. trict of Hawaii, sitting by designation.

   OPINION

KOBAYASHI, District Judge:

This appeal questions whether a conviction for manslaughter under California Penal Code section 192(a) is a categorical crime of violence for purposes of § 2L1.2(b)(l)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”). We review the district court’s determination that Rivera-Muniz’s prior conviction constitutes a crime of violence de novo. United States v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th Cir. 2015). We affirm.

I

On July 8, 2015, Rivera-Muniz pleaded guilty to reentering the United States without authorization after having been deported or removed in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). At the sentencing hearing, the district court considered Rivera-Muniz’s previous conviction for voluntary manslaughter under California Penal Code section 192(a) and concluded that it was an enumerated crime of violence that triggered a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). However, the district court also applied a 7-level downward variance, thus sentencing Rivera-Muniz to twenty-seven months of imprisonment and three years of supervised release.

Rivera-Muniz challenges the 16-level enhancement, arguing that California Penal Code section 192(a) is not categorically a crime of violence.

II

The relevant Sentencing Guideline provides a base level offense of 8, and a 16-level increase if the defendant was previously deported after a conviction for, inter alia, a “crime of violence.” U.S.S.G. § 2L1.2(a)-(b). The definition of “crime of violence” includes an enumerated list of crimes, including “manslaughter.” Id. § 2L1.2 cmt. n.l(B)(iii).

“The fact that manslaughter is specifically enumerated in the Sentencing Guidelines’ definition strongly indicates that the offense of manslaughter qualifies as a ‘crime of violence’ under § 2L1.2(b)(l)(A)(ii).” United States v. Mendoza-Padilla, 833 F.3d 1156, 1158 (9th Cir. 2016). However, “the Supreme Court has directed us to look beyond the label applied to an offense by the state legislature and consider whether the substance of the offense matches the ‘generally accepted contemporary meaning of [the] term.’ ” United States v. Gomez-Leon, 545 F.3d 777, 790 (9th Cir. 2008) (alteration in original) (quoting Taylor v. United States, 495 U.S. 575, 596, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under this analysis— the categorical approach — the court examines “only the fact of conviction and the statutory definition of the prior offense.” United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016) (citation and internal quotation marks omitted). Moreover, “we do not look to the specific conduct that was the basis of a defendant’s state convictions.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).

The statute at issue here, California Penal Code section 192(a), defines voluntary manslaughter as “the unlawful killing of a human being without malice ... upon a sudden quarrel or heat of passion.” Malice “is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature,” and “implied ... when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” Cal. Penal Code § 188.

Ill

On appeal, Rivera-Muniz contends that California Penal Code section 192(a) is not a categorical crime of violence under U.S.S.G. § 2L1.2 for two reasons. First, Rivera-Muniz argues that, because we have held that a conviction under section 192(a) was not a crime of violence under 18 U.S.C. § 16, see Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1306-07 (9th Cir. 2015), the district court should have applied the same analysis to crimes of violence as defined by U.S.S.G. § 2L1.2. Second, Rivera-Muniz argues that the district court should have considered case law and jury instructions, which make it clear that the California statute allows for a conviction of voluntary manslaughter as a lesser-included offense of murder when a defendant acts in unreasonable or imperfect self-defense. According to Rivera-Muniz, California’s inclusion of imperfect self-defense within the definition of voluntary manslaughter makes that offense broader than the generic definition of voluntary manslaughter, and, accordingly, not a categorical crime of violence. We disagree with both reasons and hold that California Penal Code section 192(a) categorically matches the contemporary, generic definition of manslaughter.

A

Quijada-AguilaPs conclusion that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 does not resolve this case. There, we held that a conviction under section 192(a) is not a crime of violence under 18 U.S.C. § 16 because California permits a conviction for voluntary manslaughter with a mens rea of recklessness, while 18 U.S.C. § 16 requires “proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.” Quijada-Aguilar, 799 F.3d at 1306. Unlike 18 U.S.C. § 16(a), which defines crimes of violence as those involving the “use, attempted use, or threatened use of physical force,” the Sentencing Guidelines provide two avenues by which a crime can constitute a crime of violence. First, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) enumerates several offenses that constitute crimes of violence per se. Gomez-Leon, 545 F.3d at 788. Second, § 2L1.2 cmt. n.1(B)(iii) contains a “residual clause” that encompasses crimes that have “as an element the use, attempted use, or threatened use of physical force.” The residual clause is “materially the same as the elements test from 18 U.S.C. § 16(a) and is subject to the same construction, which means that it covers only convictions for an offense that requires proof of the intentional use of force.” Id. (footnote omitted).

We agree that, if we were limited to the “use, attempted use, or threatened use of physical force against the person of another” language of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), Quijada-Aguilar would compel us to conclude that California Penal Code section 192(a) is not a crime of violence. However, we are not limited to this language and must take into account the fact that manslaughter is an enumerated offense. See Id. at 787.

In Gomez-Leon, we explained that the definition of “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) includes an enumerated list of offenses that “constitute ‘crimes of violence’ per se.” Id. at 788. Therefore, if the predicate offense is manslaughter, “the underlying conviction need not be for an offense that involves the intentional use of force.” Id. at 789. Thus, Rivera-Muniz’s argument that a conviction under section 192(a) is not a crime of violence because it permits a conviction for voluntary manslaughter with a mens rea of recklessness is only relevant if the generic definition of voluntary manslaughter requires something more than recklessness.

“When the enumerated offense is a traditional crime, such as manslaughter, we derive its uniform meaning from the generic, contemporary meaning employed by most states, guided by scholarly commentary.” Id. at 790. Our previous cases and those in other circuits establish that a mens rea of recklessness suffices to sustain a conviction for voluntary manslaughter under the generally accepted definition. The meaning of contemporary manslaughter includes both voluntary and involuntary forms of the offense. Id. at 791. We have adopted the Fifth Circuit’s holding in United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004), and concluded that “the modern view appears to be that recklessness is an element” of manslaughter. Gomez-Leon, 545 F.3d at 791; see also United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (“In finding that the Model Penal Code provides the best generic federal definition, we hold that ‘manslaughter’ as enumerated in the Guidelines means a criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.”); United States v. Garcia-Perez, 779 F.3d 278, 284 (5th Cir. 2015) (“The inquiry is simple for our purposes because we have already held that generic contemporary manslaughter requires a mental state of either intent to kill or recklessness.”); 2 Wayne R. La-Fave, Substantive Criminal Law, § 15.4(a) (2d ed. 2007).

Under California law, a mens rea of at least recklessness is required to sustain a voluntary manslaughter conviction. See People v. Lasko, 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, 672 (2000). Thus, at least when it comes to the mens rea element, there is a categorical match between California Penal Code section 192(a) and the generic, contemporary meaning of the offense.

B

Rivera-Muniz’s argument that California Penal Code section 192(a) is broader than the generic definition of voluntary manslaughter because it encompasses convictions for unreasonable self-defense also fails. Rivera-Muniz concedes that section 192(a) is virtually identical to its federal counterpart, 18 U.S.C. § 1112(a), which reads:

Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:'
Voluntary — Upon a sudden quarrel or heat of passion.
Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

California Penal Code section 192 reads:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary-upon a sudden quarrel or heat of passion.
(b) Involuntary-in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection....
(c)Vehicular[J

Because Rivera-Muniz’s conviction was under section 192(a), we need only concern ourselves with the definition of voluntary manslaughter.

Rivera-Muniz suggests that we should bypass this facial identity because California permits a conviction under section 192(a) for unreasonable self-defense, which goes beyond “a sudden quarrel or heat of passion.” Cal. Penal Code § 192(a). Unreasonable self-defense is not explicitly stated in California Penal Code section 192(a). Rather, California case law provides that unreasonable self-defense is an alternative way of negating malice aside from heat-of-passion killings. “Punishment is mitigated [for voluntary manslaughter, as] the law deems [it] less blameworthy than murder because of the attendant circumstances and their impact on the defendant’s mental state.” People v. Elmore, 59 Cal.4th 121, 172 Cal.Rptr.3d 413, 325 P.3d 951, 957 (2014). Specifically, “[t]wo factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense.” Id. Rivera-Muniz suggests that this judicial expansion of voluntary manslaughter beyond the statutory text demonstrates that section 192(a) is not a categorical match to the generic definition of manslaughter.

Rivera-Muniz ignores cases interpreting 18 U.S.C. § 1112 in precisely the same manner. See United States v. Manuel, 706 F.2d 908, 915 (9th Cir. 1983) (“[In] the typical case of ‘imperfect self-defense,’ ... the defendant intends to use deadly force in the unreasonable belief that he is in danger of death or great bodily harm. In this circumstance, the offense is classed as voluntary manslaughter.”)) see also United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994) (“Intent without malice, not the heat of passion, is the defining characteristic of voluntary manslaughter.”). He also ignores scholarly commentary suggesting that the generally accepted definition of voluntary manslaughter includes the concept of unreasonable self-defense. See 2 LaFave, supra, § 15.3(a) (collecting cases and statutes making unreasonable self-defense a variant of voluntary manslaughter); Elizabeth D. Lauzon, Annotation, Propriety of Lesser-Included-Offense Charge of Voluntary Manslaughter, 3 A.L.R.6th 543 (originally published in 2005) (“Voluntary manslaughter has generally been defined, under common law and various state statutes, as the intentional, unlawful killing of a human being by another human being as a result of an honest but unreasonable belief in the need to exercise self-defense (unreasonable/imperfect self-defense theory) or as the intentional, unlawful killing of a human being by another human being in a sudden heat of passion due to serious provocation (heat-of-passion theory).”).

In sum, California Penal Code section 192(a) does not stray from the generic definition of voluntary manslaughter, which includes the concept of unreasonable self-defense.

IV

California Penal Code section 192(a) matches the generic definition of “manslaughter,” and is, therefore, categorically a crime of violence for purposes of § 2L1.2(b)(l)(A)(ii) of the Sentencing Guidelines.

AFFIRMED.

      . Citations to the Sentencing Guidelines reference the 2014 Guidelines, which were in effect when Rivera-Muniz was sentenced. United States v. Thomsen, 830 F.3d 1049, 1071 (9th Cir. 2016). Amendments effective November 1, 2016, eliminated the language of U.S.S.G. § 2L1.2 at issue in the instant appeal. U.S. Sentencing Guidelines Manual supp. to app. C, amend. 802, at 147-49 (U.S. Sentencing Comm’n 2016).

      . U.S.S.G. § 2L1.2 provides:
      (a) Base Offense Level: 8
      (b) Specific Offense Characteristic (1) Apply the Greatest:
      If the defendant previously was deported, or unlawfully remained in the United States, after—
      (A) a conviction for a felony that is ...
      (ii) a crime of violence ..., increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points[.]

      . The Application Notes to U.S.S.G. § 2L1.2 state, in relevant part:
      "Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any 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.
      U.S.S.G. § 2L1.2 cmt. n.l(B)(iii) (emphasis added).

      . If the statute of conviction criminalizes more conduct than the generic, contemporary definition of the offense, we may use the modified categorical approach. Gomez-Leon, 545 F.3d at 783-84. Because we -conclude that California Penal Code section 192(a) does not criminalize more conduct than the generic definition of manslaughter, we need not use the modified categorical approach.

      . California Penal Code section 192 provides, in pertinent part:
      Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
      (a)Voluntary-upon a sudden quarrel or heat of passion.
      (b) Involuntary-in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
      (c) Vehicular!.]

      .The California Supreme Court has recognized that the terms “unreasonable self-defense" and "imperfect self-defense" are interchangeable. See People v. Elmore, 59 Cal.4th 121, 172 Cal.Rptr.3d 413, 325 P.3d 951, 955 (2014).

      . Gomez-Leon references an older version of U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) that was amended in 2008. See U.S. Sentencing Guidelines Manual app. C, amend. 722, at 301-02 (U.S. Sentencing Comm’n 2011). The amendments, however, did not eliminate the list of enumerated offenses, and left unchanged the enumerated offense of manslaughter. See id.

      . We have previously held that a conviction under section 192(c)(3) is not a categorical crime of violence. Gomez-Leon, 545 F.3d at 795-96.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael F. HARRIS, Defendant, and Kevin Harris; Scott Harris; Holly Patubo, Co-Trustees, Garnishees-Appellants.
    No. 16-10152
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 17, 2017 San Francisco, California
    Filed April 20, 2017

      Howard D. Neal (argued), Neal & Associates, Oakland, California, for Appellants.
    Julie C. Reagin (argued), Assistant United States Attorney; Sara Winslow, Chief, Civil Division; Brian Stretch, United States Attorney; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellee.
    Before: RICHARD C. TALLMAN and PAUL J. WATFORD, Circuit Judges, and LOUIS GUIROLA, JR, Chief District Judge.

       The Honorable Louis Guirola, Jr., Chief United States District Judge for the Southern District of Mississippi, sitting by designation.

   OPINION

PER CURIAM:

In 1997, Michael Harris was convicted of eight federal criminal counts related to theft from an employee benefit plan. He was sentenced to 30 months in prison and ordered to pay $646,000 in restitution. He has paid only a small fraction of that amount. The government later learned that Harris is a beneficiary of two irrevocable, discretionary trusts established by his parents for his support. In 2015, the government applied for a writ of continuing garnishment for any property distributed to Harris from the trusts. See 28 U.S.C. § 3205(a). The trustees opposed the application on the ground that Harris had disclaimed his interest in the trusts, with the exception of several checking and investment accounts. The district court granted the writ and ordered the trustees to pay to the United States all current and future amounts distributed to Harris under the trusts.

We have jurisdiction under 28 U.S.C. § 1291 and must decide whether a writ of continuing garnishment may attach to a beneficiary’s interest in a discretionary support trust. We review the district court’s legal conclusions on this issue de novo. See Lim v. City of Long Beach, 217 F.3d 1050, 1054 (9th Cir. 2000).

We begin with the procedure for identifying property subject to federal writs of garnishment. A federal restitution order is “a lien in favor of the United States on all property and rights to property” as if the liability were for “a tax assessed under the Internal Revenue Code of 1986.” 18 U.S.C. § 3613(c). In examining the statutes that govern tax liens, as we must do here, the Supreme Court has noted that Congress used broad language so as “to reach every interest in property that a taxpayer might have.” United States v. Nat’l Bank of Commerce, 472 U.S. 713, 720, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985). “Property” subject to garnishment under these statutes “includes any present or future interest, whether legal or equitable, in real, personal (including choses in action), or mixed property, tangible or intangible, vested or contingent, wherever located and however held (including community property and property held in trust (including spendthrift and pension trusts)).” 28 U.S.C. § 3002(12). In determining whether a property right falls within this definition, “the important consideration is the breadth of the control the taxpayer could exercise over the property,” which we assess with reference to the state law governing the right. Drye v. United States, 528 U.S. 49, 61, 120 S.Ct. 474, 145 L.Ed.2d 466 (1999) (alterations omitted) (quoting Morgan v. Comm’r, 309 U.S. 78, 83, 60 S.Ct. 424, 84 L.Ed. 585 (1940)).

To determine whether Harris’s interest in the trusts fits within this expansive definition of property, we look first to the trusts themselves and to the laws of California, the state that governs them. See id. at 52, 120 S.Ct. 474. In California, an irrevocable trust provides its beneficiaries with “a vested and present beneficial interest in the trust property.” Empire Props. v. Cty. of Los Angeles, 44 Cal.App.4th 781, 52 Cal.Rptr.2d 69, 73 (1996). Per the trust documents, the amount payable to Harris is subject to the absolute discretion of the trustees. The first trust, known as the Restated Trust, provides that “[t]he Trustee shall payout of income which in the Trustee’s absolute discretion will help support [Harris], which in the opinion of the Trustee will allow [Harris] to properly manage his affairs.” That trust also states that “[t]he Trustee may pay to [Harris] or for his benefit, so much of the principal as the Trustee deems necessary or advisable from time to time for his health, maintenance, education, and best interest.” The second trust, known as the Harris Trust, provides that the trustees “may” distribute both the trust’s income and principal for Harris’s support, again subject to their absolute discretion. Each trust also contains a spendthrift clause, which provides that “[t]he interest of the beneficiary in principal or income shall not be subject to the claims of any creditor, any spouse for alimony or support, or others, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered.”

We note that despite the discretionary language of the trusts, California law grants Harris the right to compel distributions from the trusts, insofar as those distributions are necessary to fulfill the trusts’ purposes. Even if a trust confers “absolute, sole, or uncontrolled discretion on a trustee,” the trustee must “act in accordance with fiduciary principles” and must not act in bad faith or in disregard of the trust’s purposes. Cal. Prob. Code § 16081(a) (internal quotation marks omitted). Under § 17200 of the California Probate Code, a beneficiary of a trust “may petition the court ... concerning the internal affairs of the trust,” which are defined to include “[s]ettling the accounts and passing upon the acts of the trustee, including the exercise, of discretionary powers.” Cal. Prob. Code § 17200(a), (b)(5); Young v. McCoy, 147 Cal.App.4th 1078, 54 Cal.Rptr.3d 847, 854 (2007) (allowing judicial review of a trustee’s decision not to make discretionary payments to a beneficiary). The “basic inquiry” in such an action is whether the trustee “acted in the state of mind contemplated by the trustor.” Young, 54 Cal.Rptr.3d at 854 (quoting In re Greenleaf's Estate, 101 Cal.App.2d 658, 225 P.2d 945, 948 (1951)). Thus, even though the trust purports to grant the trustees absolute discretion over distributions, Harris can petition the probate court to ensure that the trustees’ exercise of that discretion is consistent with the trusts’ purposes.

Mindful of the rights granted to trust beneficiaries under California law, we hold that Harris’s interest falls within the federal definition of “property.” As the court held in United States v. Taylor, 254 F.Supp. 752 (N.D. Cal. 1966), when a beneficiary “has a basic beneficial right to receive payments” from a discretionary trust, a government lien may “attach[ ] to and subsist against that right.” Id. at 756. In this respect, a taxpayer’s property right in a discretionary trust “differs from any other property right only in that it has no permanently fixed dollar value.” Id. Harris argues that he has only a “mere expectation” of future distributions, and that a federal lien may not attach to this expectation because it is not a property interest. But because Harris has a right to receive distributions under California law, his interest in the discretionary trusts is not a mere expectation. Instead, it constitutes “property” under the expansive definition stated in 28 U.S.C. § 3002(12).

Moreover, Harris’s alleged disclaimer of his interest in the trusts cannot defeat the writ of garnishment. “Once it has been determined that state law creates sufficient interests in the taxpayer to satisfy the requirements of the federal tax lien provision, state law is inoperative to prevent the attachment of the federal liens.” Drye, 528 U.S. at 52, 120 S.Ct. 474 (alterations omitted) (quoting United States v. Bess, 357 U.S. 51, 56-57, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958)). As discussed above, California law gives Harris a right to distributions from the trusts. This right falls within the broad definition of property in 28 U.S.C. § 3002(12), so Harris’s disclaimer under state law is “inoperative to prevent the attachment of’ the writ of garnishment. Drye, 528 U.S. at 52, 120 S.Ct. 474.

Finally, the trusts’ spendthrift clauses have no effect on our analysis because a spendthrift clause does not protect a trust’s assets from the enforcement of a federal lien. Leuschner v. First W. Bank & Trust Co., 261 F.2d 705, 707-08 (9th Cir. 1958).

In sum, we conclude that Harris’s interest in the trusts qualifies as property under the federal debt collection procedure that applies in this case. The government is not attempting to compel distributions from the trusts. However, any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied.

Trustees shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).

AFFIRMED.

      . Section 3205(a) provides: "A court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor.”


author: CLIFTON, Circuit Judge:

text:
    Jeremy PORTER, an individual, Plaintiff-Appellant, v. NABORS DRILLING USA, L.P., a Limited Partnership organized under the laws of the State of Delaware, Defendant-Appellee.
    No. 15-16985
    United States Court of Appeals, Ninth Circuit.
    Submitted to Motions Panel February 27, 2017
    Filed April 20, 2017

      Arnold P. Peter, Peter Law Group, Manhattan Beach, California, for Plaintiff-Appellant.
    Tamara I. Devitt and Matthew E. Costello, Mary-Christine Sungaila, Haynes and Boone LLP, Costa Mesa, California; Christina Crozier, Haynes and Boone LLP, Houston, Texas, for Defendant-Ap-pellee.
    Before: WILLIAM C. CANBY, RICHARD R. CLIFTON, and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

CLIFTON, Circuit Judge:

Movant-Appellee Nabors Drilling USA, L.P. has filed for reorganization under Chapter 11 of the Bankruptcy Code. That filing triggered the automatic stay under 11 U.S.C. § 362(a)(1), which generally applies to protect a debtor after it has filed for bankruptcy protection. The question presented by the current motion is whether that stay applies to a lawsuit filed by a plaintiff, Appellant Jeremy Porter, who has asserted a claim under California’s Private Attorney General Act of 2004 (“PAGA”), Cal. Labor Code §§ 2698 et seq. Porter contends that the exception established in 11 U.S.C. § 362(b)(4), sometimes described as the governmental regulatory or governmental unit exception, applies to exempt his PAGA claim from the automatic stay. We conclude that the exception does not apply to a claim brought by a private party under PAGA, and we therefore grant Nabors’s motion to recognize the automatic stay in this case.

I. Background

Porter alleges that he was formerly an employee of Nabors. He notified the California Labor & Workforce Development Agency (“LWDA”) that he believed that Nabors had violated various provisions of the California Labor Code. LWDA did not respond to Porter or take further action regarding his allegations. Under PAGA, after LWDA had been notified of possible labor code violations and declined to take action within a certain period of time, Porter was authorized to file a civil action seeking to recover penalties for the alleged code violations. See Cal. Lab. Code §§ 2698 et seq. He did so by filing a complaint against Nabors in state court. Porter’s complaint contained eight causes of action, including one PAGA claim.

After removing the action to federal court, Nabors moved to compel arbitration on all of Porter’s claims pursuant to an arbitration agreement. Porter agreed to arbitrate all of his claims except for the PAGA claim. Over Porter’s objection, the district court granted Nabors’s motion to compel arbitration of the PAGA claim and dismissed the complaint. Porter filed the current appeal. LWDA has never moved to intervene in the action.

After the appeal was filed, Nabors filed in. this court a “Notice of Suggestion of Bankruptcy.” The notice stated that Na-bors and its parent companies filed voluntary petitions seeking bankruptcy protection under Chapter 11 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. The notice stated that pursuant to 11 U.S.C. §§ 362(a)(1) — (3), the filing of the bankruptcy petition automatically stayed all proceedings with respect to Nabors. Porter then filed with this court a motion for summary disposition arguing that the automatic bankruptcy stay does not apply to these proceedings.

As discussed below, there are a small number of exceptions to the automatic bankruptcy stay. Among those exceptions is a provision for proceedings brought “by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” 11 U.S.C. § 362(b)(4). Porter argued that his PAGA claim is brought “by a governmental unit” to enforce “police and regulatory power,” and thus the bankruptcy stay does not apply. A motions panel of this court referred Porter’s motion for summary disposition to the panel that will be assigned to decide the merits of the appeal and ordered briefing to proceed.

Two months later, Nabors filed the current motion, entitled “Emergency Motion Under Circuit Rule 27-3 to Recognize Automatic Stay.” Nabors argues that requiring it to brief this appeal would violate the automatic bankruptcy stay. Porter has filed an opposition to that motion, and Nabors filed a reply.

II. California’s Private Attorney General Act

LWDA is assigned responsibility under California law for bringing actions to enforce the state’s labor laws. See, e.g., Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 36 Cal.Rptr.3d 31, 33 & 33 n.1 (2005). In response to a concern that labor law enforcement agencies like LWDA “were unlikely to keep pace with the future growth of the labor market,” the California legislature passed PAGA. Arias v. Superior Court, 46 Cal.4th 969, 95 Cal.Rptr.3d 588, 209 P.3d 923, 929 (2009). Under PAGA, “civil penalties] to be assessed and collected by the Labor and Workforce Development Agency ... for a violation of th[e Labor] code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee.” Cal. Lab. Code § 2699(a). To be eligible to file a claim under PAGA, an aggrieved employee must first submit his allegations of labor code violations to LWDA as well as to the employer. Id. § 2699.3(a)(1)(A). If LWDA does not respond or take action on the allegations within a certain period, the aggrieved employee is permitted to “commence a civil action pursuant to Section 2699.” Id. § 2699.3(a)(2)(A).

If LWDA declines to intervene in a PAGA proceeding, the plaintiff “pursues the PAGA action in his own name, exercises complete control over the lawsuit, and is not restrained by any provision of the PAGA statute from settling or disposing of the claim as he sees fit.” Nanavati v. Adecco USA Inc., 99 F.Supp.3d 1072, 1083 (N.D. Cal. 2015). As the California Supreme Court has explained, “[a]n employee plaintiff [bringing a PAGA claim] does so as the proxy or agent of the state’s labor law enforcement agencies” and “with the understanding that labor law enforcement agencies [are] to retain primacy over private enforcement efforts.” Arias, 95 Cal.Rptr.3d 588, 209 P.3d at 933, 929-30. If successful, twenty-five percent of the civil penalties are distributed to the aggrieved employees, and the remaining seventy-five percent of the penalties go to LWDA. Cal. Lab. Code § 2699(f). The PAGA plaintiff is also entitled to reasonable attorney’s fees and costs. Id. § 2699(g)(1).

When looking at PAGA claims in the context of arbitration agreements, both the California Supreme Court and this court have concluded that “[a] PAGA representative action is ... a type of qui tam action.” Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129, 148 (2014); see Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 429 (9th Cir. 2015). A qui tam action for citizen enforcement traditionally has three elements: “(1) that the statute exacts a penalty; (2) that part of the penalty be paid to the informer; and (3) that, in some way, the informer be authorized to bring suit to recover the penalty.” Iskanian, 173 Cal.Rptr.3d 289, 327 P.3d at 148 (quoting Sanders v. Pac. Gas & Elec. Co., 53 Cal.App.3d 661, 126 Cal.Rptr. 415, 421 (1975)).

III. The Automatic Bankruptcy Stay

Under federal bankruptcy law, “a petition [for bankruptcy] ... operates as a stay [of] the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was ... commenced before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1). The stay is self-executing and effective upon filing a bankruptcy petition. Griffin v. Wardrobe (In re Wardrobe), 559 F.3d 932, 934 (9th Cir. 2009).

The sweep of the automatic stay is broad and “serves as one of the most important protections in bankruptcy law.” Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210, 1214 (9th Cir. 2002) (citing Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass’n, 997 F.2d 581, 585 (9th Cir. 1993)). The stay “provides debtors with protection against hungry creditors” and “assures creditors that the debtor’s other creditors are not racing to various courthouses to pursue independent remedies to drain the debtor’s assets.” Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755-56 (9th Cir. 1995). It also provides the debtor with some “breathing space” so that the debtor can focus on reorganization rather than the defense of pending litigation. Hillis Motors, 997 F.2d at 585.

The bankruptcy statute provides certain exceptions to the automatic stay. One of the exceptions is for actions “by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” 11 U.S.C. § 362(b)(4). The bankruptcy code defines “governmental unit” as:

United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.

11 U.S.C. § 101(27).

Porter concedes that he is not a governmental unit. He argues instead that a private party can invoke the governmental unit exception when it acts as an agent of the government, as long as the private party seeks to protect the public health and safety. In doing so, however, Porter effectively asks us to read the phrase “by a governmental unit” out of the governmental unit exception. We decline to do so. We are not persuaded that the government’s creation of a private right of action to enforce laws aimed to protect the health and safety of the public is sufficient governmental involvement to invoke the exception to the bankruptcy stay.

As noted above, a PAGA action has been identified as a kind of qui tam action, an action in which a private citizen is authorized to sue on behalf of the government. Courts have consistently held that the automatic stay applies to those cases, at least when the government has not intervened, because they do not fall within the governmental unit exception. See, e.g., In re Edison Mission Energy, 502 B.R. 830 (Bankr. N.D. Ill. 2013); United States ex rel. Kolbeck v. Point Blank Sols., Inc., 444 B.R. 336 (E.D. Va. 2011); United States ex rel. Goldstein v. P & M Draperies, Inc., 303 B.R. 601 (D. Md. 2004); In re Chateaugay Corp., 118 B.R. 19 (Bankr. S.D.N.Y. 1990); United States (EPA) v. Envtl. Waste Control, Inc., 131 B.R. 410 (N.D. Ind. 1991); In re Revere Copper & Brass, Inc., 29 B.R. 584 (Bankr. S.D.N.Y. 1983). This is because, unlike in traditional government enforcement actions, the qui tam relators in these cases were proceeding without the involvement of the governmental unit on whose behalf the action is purportedly brought. See, e.g., Edison Mission Energy, 502 B.R. at 836 (declining to apply governmental unit exception in part because “the record indicates that [no state agency] has requested or directed the [claimant] to act in its stead”); Kolbeck, 444 B.R. at 340 (declining to apply governmental unit exception in part because “the government decline[d] to intervene in [the] qui tam [False Claims Act] action” and “the proceedings [were] thereafter conducted solely by the qui tam relator”).

We reach the same conclusion in this case. Porter’s claim against Nabors was filed by Porter, and it remains under his control. Despite having received notice of Porter’s allegations pursuant to PAGA’s notice provisions, the state of California, through LWDA, did not request, direct, or join in the filing. Nor has the state attempted to intervene in the action since its filing. Under these circumstances, the action cannot properly be understood to be an action “by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” 11 U.S.C. § 362(b)(4).

Porter argues that his PAGA claim is analogous to a claim for sanctions brought by a litigant requesting that the court discipline a party for violating court rules. It is true that actions by courts to impose sanctions in order to enforce their own rules or police the members of their bar may fall within the governmental regulatory exception for purposes of the bankruptcy stay. See, e.g., Dingley v. Yellow Logistics, LLC (In re Dingley), 852 F.3d 1143, No. 14-60055, 2017 WL 1208454, at *1 (9th Cir. 2017) (holding that, in certain situations, state court “civil contempt proceedings are exempted from the automatic stay under the Bankruptcy Code’s government regulatory exemption”); Berg v. Good Samaritan Hosp. (In re Berg), 230 F.3d 1165, 1166 (9th Cir. 2000) (holding that federal appellate court’s “award of sanctions falls under the ‘government regulatory power’ exemption of § 364(b)(4)”); Wade v. State Bar of Ariz. (In re Wade), 948 F.2d 1122, 1124 (9th Cir. 1991) (per curiam) (holding that a state bar association “exercises this delegated authority under the ‘direction and control’ of the Arizona Supreme Court” (citation omitted)).

Relying on this line of cases, Porter contends that because he also acts as an agent of a governmental unit in bringing his PAGA claim and because the PAGA claim will ultimately be adjudicated, like a sanctions award, by a court, the governmental unit exception should apply to him. We are not persuaded. In the context of judicially imposed sanctions, the governmental unit whose interests are being enforced — that is, the court — itself conducts additional proceedings to advance its own interests and uses its own resources to do so. Ultimately, the “sanction is meted out by a governmental unit, the court,” even if the sanction is initially “sought by a private individual or organization — a nongovernmental litigant.” Alpern v. Lieb, 11 F.3d 689, 690 (7th Cir. 1993). Porter does not contend that his action is taken on behalf of the court, however. He claims to be acting as a private attorney general in place of LWDA. The subsequent involvement of the court does not bring his PAGA action within the language of the exception: “by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” 11 U.S.C. § 362(b)(4). That a court might ultimately decide the fate of Porter’s PAGA action does not mean that the court decision is an action to enforce its own power. Although a litigant may initially request the imposition of sanctions, ultimately the sanctions proceedings are conducted by a governmental unit, the court, to advance its own interest in enforcing its authority. See Alpern, 11 F.3d at 690.

IV. Conclusion

We conclude that the governmental unit exception to the automatic bankruptcy stay does not apply to Porter’s PAGA action. As a result, the automatic bankruptcy stay does apply to that action, including the appeal that is currently pending before this court. Accordingly, we suspend further activity in this appeal and direct the parties to notify this court promptly of relevant developments in the bankruptcy proceeding.

The motion to stay appellate proceedings is GRANTED.

      . LWDA has since expanded its oversight of PAGA litigation. For cases filed after July 1, 2016, aggrieved employees must submit to LWDA copies of their filed complaints, proposed settlement agreements, and court orders denying an award of civil penalties. Cal. Lab. Code § 2699(1 )(l)-(3).