Amicus Curiae Brief of the FPD for the District of Oregon in Support of Defendant-Appellant's Supplemental Brief

7/30/2019 Amicus Curiae Brief of the FPD for the District of Oregon in Support of Defendant-Appellant's Supplemental Brief

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No. 05-30585

UNITED STATES COURT OF APPEALSFOR THE

NINTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

DARREL DUANE GRISEL,Defendant-Appellan t.

Appeal from the United States District Courtfor the District of Oregon

AMICUS CURIAE BRIEFOF THE FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF OREGONIN SUPPORT OF

DEFENDANT-APPELLANT'S SUPPLEMENTAL BRIEF

Steven T. Wax, Federal Public DefenderStephen R. Sady, ChiefDeputy Federal Public DefenderCraig E. Weinerman, Assistant Federal Public DefenderMatthew M. Rubenstein, Assistant Federal Public Defender10I S.W. Main Street, Suite 1700Portland, OR 97204(503) 326-2123Counsel for Amicus Curiae


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TABLE OF CONTENTSPage

A. Identity OfAmicus Curiae And Statement OfInterest . . . . . . . . . . . . . . . -1-B. Summary Of The Argument " -2-C. TaylorRequires That, InOrderFor AConvictionToCategoricallyMeetTheDefinitionOfGenericBurglary,TheStateBurglary Statute CannotDefineBurglaryBroader ThanEntry IntoABuilding OrOtherStructure.......................................................... -5-D. The Oregon Second Degree Burglary Statute Is Broader Than The

Taylor Definition OfGeneric Burglary -6-I. Oregon Burglaries Do Not Meet The Categorical Test Of Taylor..................................................... -8-2. The Interpretation Of The Term "Building" By The OregonCourts Renders The Oregon Burglary Statute Overbroad , -9-3. This Court's Precedent Addressing Overbroad Burglary StatutesIs Inconsistent WithCunningham -10-

E. The Court Should Consider The Application Of The Doctrine OfConstitutional Avoidance, As Required By Shepard And Haley, InApproaching The ViabilityOfCunningham -14-Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-BriefFonnat Certification -17-Certificate ofService


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TABLE OF AUTHORITIES

FEDERAL CASES

Almendarez-Torres v. United States,523 U.S. 224 (1998) 2,15Dretke v.Haley,541 U.S. 386 (2004) 4,15Fernandez-Ruiz v. Gonzales,

No. 03-74533,2006 WL 3026023 (9th Cir. October 26,2006) 9Miller v. Gammie,

335 F.3d 889 (9th Cir. 2003) 4,10,15Ortega-Mendez v. Gonzales,450 F.3d 1010 (9th Cir. 2006) 7Shepard v. United States,

544 U.S. 13 (2005) 4, 5, 15Taylor v. United States,

495 U.S. 575 (1990) passimUnited States v. Bonat,106 F.3d 1472 (9th Cir. 1997) 5,6,7United States v. Buckland,289 F.3d 558 (9th Cir. 2002) 16United States v. Corona-Sanchez,291 F.3d 1201 (9th Cir. 2002) 2,9United States v. Cunningham,

911 F.2d 361 (9th Cir. 1990) passim

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United States v. Hunt,925 F.2d 1181 (9th Cir. 1991) 3United States v. Reina-Rodriguez;

No. 05-10475, 2006 WL 3302652 (9th Cir. Nov. 15,2006) ... 6,9,10,13,14United States v. Rivera-Sanchez,247 F.3d 905 (9th Cir. 2001) 2,9United States v. Sparks,265 F.3d 825 (9th Cir. 2001) passimUnited States v. Sweeten,933 F.2d 765 (9th Cir. 1991) 12United States v. Wenner,351 F.3d 969 (9th Cir. 2003) 5, 8, 11, 12, 13

STATE CASESState v. Barker,86 Or. App. 394, 739 P.2d 1045 (1987) 10State v. Essig,31 Or. App. 639, 571 P.2d 170 (1977) 10State v. Nollen,196 Or. App. 141, 100 P.3d 788 (2004) 10

DOCKETED CASES

United States v. Ankeny,CA No. 05-3045 1United States v. Ellis,CA No. 05-30425 1

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FEDERAL STATUTES

18U.S.C.16 718 U.S.C. 16(a) 918 U.S.C. 3006A I18 U.S.C. 922(g) 318 U.S.C. 924(e) 1

STATE STATUTES

Or. Rev. Stat. 164.205(1) 7,8Or. Rev. Stat. 164.215(1) 8Utah Code Ann. 76-6-201 (2) 14

IV


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A. Identity OfAmicus Curiae And StatementOf Interest.The Federal PublicDefender for the District ofOregon provides representation

to the indigent accused in the District ofOregon pursuant to 18U.S.C. 3006A. Theoffice employs 23 lawyers whose exclusive practice is in the representation offinancially eligible people, both at trial and on appeal in this Circuit. Many of thelawyers in the office have extensive criminal defense experience practicing in theOregon state courts and addressing questions ofOregon law in federal court. Thesignificance ofOregon burglary convictions under the Armed Career Criminal Act(ACCA), 18 U.S.C. 924(e), is a frequently recurring issue in the representation ofour clients.

The Federal Public Defender for the District ofOregon represents appellantsin two cases in which submissions have been withdrawn by this Court's order datedOctober 19, 2006, pending issuance ofthe mandate inUnited States v.Grisel, or untilfurther order ofthe Court. United States v. Ellis, CANo. 05-30425; UnitedStates v.Ankeny, CA No. 05-30457. Thus, the Court has apparently determined that thedecision in Griselmay affect the outcome ofEllis and Ankeny. The Oregon FederalDefenderOffice's interest in this matter also derives from the large numbers ofactualand potential clients harmed when Oregon burglary convictions are inappropriatelycounted as predicate offenses under the ACCA, as well as from the desire for greater

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certainty in the law given the intra-Circuit dissonance regarding the Oregon burglarystatute.

The Grisel case also involves a question of first impression regarding theSupreme Court's requirement that courts apply the Doctrine of ConstitutionalAvoidance in cases, such as the ACCA, where Fifth and Sixth Amendment claimsrequire application and expansion ofAlmendarez-Torres v. United States, 523 U.S.224 (1998). This issue directly applies to the Oregon Federal Public Defender clientsand should be considered in resolving the Court's question regarding rehearing enbane.B. Summary Of The Argument

In two separate cases, this Court has addressed state burglary statutes thatinclude overbroad definitions that include entry into locations that do not meet thegeneric definition ofburglary: United States v. Sparks, 265 F.3d 825 (9th Cir. 2001);and United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990). The Sparksdecision, with the benefit of the decade of analytic experience following Taylor v.United States, 495 U.S. 575 (1990), as well as two en bane decisions on the modifiedcategorical approach, Jheld that the Alaskan burglary statute, which included vehicles

'United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en bane);United States v, Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en bane).-2-


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"adapted" "for carrying on business therein," did not constitute generic burglary. Onthe other hand, in the immediate aftermath of the Taylor decision, this Court - withno consideration of the specific Oregon definition of "building" and the State'sconstruction of the scope of the burglary statute - came to the contrary conclusionthat the Oregon burglary statute, which includes vehicles "adapted" "for carrying onbusiness therein," constituted generic burglary. This Court should grant rehearing enbane to resolve the conflict in authority and to correct the error in the Cunninghamcourt's analysis, which was compounded by a similar analytic error in United Statesv. Hunt, 925 F.2d 1181 (9th Cir. 1991) (following Cunningham regarding identicallanguage in Oregon's first degree burglary statue).

In addition to the traditional purpose ofen bane reviewin resolving conflictingauthority within the Circuit, rehearing en bane is appropriate simply because of theextraordinary importance of the issue. For an individual charged under the ACCA,the consequences are devastating. Not only is the statutory minimum increasedbeyond the ten year maximum in 18 U.S.C. 922(g), a mandatory minimum term ofimprisonment of 15 years is required. Further, because burglary is a frequentlyprosecuted felony crime in the State ofOregon, the number ofburglary convictions,when coupled with the frequency ofACCA prosecutions in the District ofOregon,

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make this an important issue to be resolved for the federal administration of justicein Oregon.

As the Court decides whether the question is appropriate for rehearingen bane,the Court should consider that Mr. Grisel is also entitled to relief based on thestatutory construction of the ACCA required by Shepard v. United States, 544 U.S.13 (2005), and Dretke v. Haley, 541 U.S. 386 (2004). Although resolution of theCunningham issue may make resolution of the statutory construction argumentunnecessary, the Court is freeto grantreliefon this alternative groundbecause, underMiller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en bane), the mode ofanalysisfor priorACCA cases has been undercut by intervening, controlling precedents oftheUnited States Supreme Court.

This Court should recognize that Oregon's burglary statute is not sufficientlynarrow to fit the categorical Taylor definition ofgeneric burglary. The Court shouldrule, either as a panel or en bane, that conviction under the Oregon burglary statutedoes not categorically constitute a "violent felony" under Taylor and remand to thedistrict court for applicationofthe modified categorical approachapproved in Taylorand Shepard. If the Court finds the predicate factors for the ACCA have not beenpleaded and proven in accordance with Fifth and Sixth Amendment standards, theCourt should remand for resentencing under the unenhanced firearms statute.

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C. Taylor Requires That, In Order For A Conviction To Categorically MeetTh e Definition Of Gen er ic B ur glar y, T he Sta te B u rg lar y Statute CannotDefine BurglaryBroaderThan Entry Into ABuildingOrOther Structure.In Taylor, the Supreme Court defined burglary under the ACCA as "an

unlawful or unprivileged entry into, or remaining in, a building or other structure,with intent to commit a crime." 495 U.S. at 598. In order to determine if a priorconviction fits that definition, the Court devised a categorical approach. That is, thesentencing court can look only to the statutory definition of the prior offense andcannot examine the particular facts underlying the conviction. !d. If the statute isbroader than generic burglary, and would allow a defendant to be convicted even ifa jury was not required to find all of the above elements, the conviction is notcategoricallygeneric burglary for purposes ofthe ACCA. Shepard, 544 U.S. at 15-16(citing Taylor); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997).

In deciding on the definition of generic burglary, the Taylor Court was wellaware that many States defined burglarymore broadly. The Court specifically notedStates that included places other than buildings in their burglary statutes, such asautomobiles, vending machines, booths, tents, boats, and railway cars. Taylor, 495U.S. at 599. Indeed, since the decision in Taylor, many state statutes definingburglary have been held to be overly broad and unable to meet the categorical test.See, e.g., UnitedStates v. Wenner, 351 F.3d 969, 972-73 (9th Cir. 2003)(Washington

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burglary statute too broad because its definition of building includes a fenced area,a railway car, or cargo container); United States v. Sparks, 265 F.3d 825, 833-35 (9th

Cir. 2001) (Alaska burglary statute too broad because its definition of buildingincludes "propelled vehicle . . . adapted . . . for carrying on business" and storagelockers not large enough to accommodate a person); Bonat, 106 F.3d at 1475, 1477(Oklahoma burglary statute overly broad because offense could be committed in avariety ofobjects, such as railroad cars and automobiles); see United States v. Reina-Rodriguez, No. 05-10475,2006 WL3302652 (9thCir. Nov. 15,2006) (Utah burglarystatute that defines "building" to include "watercraft" and "aircraft" was notoverbroad because the definition of "building" is restricted to structures "usuallyoccupied by a person lodging therein at night.")D. The Oregon SecondDegree Burglary Statnte Is BroaderThan The Taylor

Definition Of Generic Burglary.In Cunningham, the Court issued aper curiam opinion after a remand pursuant

to Taylor. In less than a paragraph, and with no analysis of the Oregon definition of"building," the Court opined that the basic elements of Oregon burglary were thesame as the generic definition in Taylor - the unlawful or unprivileged entry into, orremaining in, a building or structure, with intentto commit a crime. Cunningham, 911F.2d at 363. Cunningham only cited the general language of the Oregon burglarystatute and assumed that the term "building" was used in the Taylor generic sense.

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Cunningham was decided incorrectly for three reasons. First, by failing toanalyze Oregon's broad definition ofvbuilding" inOR. REv. STAT. 164.205(1), which

"includes any booth, vehicle, boat, aircraft or other structure adapted for overnightaccommodationofpersons or for carryingon business therein,"Cunningham omitteda necessary step in the analysis required byTaylor, which excludes burglaries ofnonstructures such as automobiles, boats, and aircraft from the definition of genericburglary. Second,Cunningham failed to analyze the interpretationofOR. REv. STAT.164.205(1) inOregonjudicialopinions expanding the definitionof"building"beyondgeneric burglary. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir,2006) (California battery statute is not categorically a crime of violence under 18U.S.C. 16 because the California courts have interpreted it in a way that does notrequire force capable of hurting or causing injury or violence); Bonat, 106 F.3d at1475-76 (althoughArizona burglary statute "on its face" met the definition ofgenericburglary, the Arizona courts expanded the statute beyond generic burglary andrendered it not categorically generic burglary). Third, Cunningham conflicts with asubsequent decision ofthis Court that correctly applied Taylor and held that a statutethat defines "building" identically to the Oregon statute - including non-structuresadapted for carrying on business - is overbroad. Sparks, 265 F.3d at 833-835.

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1. Oregon Burglaries Do Not Meet The Categorical Test OITaylor.The Oregon definition of burglary goes well beyond the type of building

intended by the generic definition required by Taylor. The first level of the Oregondefinition tracks the Taylor language. A person commits burglary in the seconddegree ifhe or she "enters or remains unlawfully in a building with intent to commita crime therein." OR. REv. STAT. 164.215(1). However, Oregon law goes on todefine building very broadly: '''Building,' in addition to its ordinary meaning,includes any booth, vehicle, boat, aircraft or other structure adapted for overnightaccommodation of persons or for carrying on business therein." OR. REv. STAT.164.205( I) (emphasis added). The Oregon definition ofbuilding is too broad tomeetthe Taylor generic definition for the same reasons mentioned by the Taylor Court:

A few States' burglary statutes, however, as has been noted above,define burglary more broadly e.g., ... by including places, such asautomobiles and vending machines, other than buildings. One ofMissouri's second-degree burglary statutes in effect at the times ofpetitioner Taylor's convictions included breaking and entering "anybooth or tent, or any boat or vessel, or railroad car."

495 U.S. at 599. The Oregon definition of "building" does not differ in anymeaningful way from the statutes held to be overbroad in Wenner and Sparks. Thestatute defines burglary as entry into things beyond the generic meaning ofburglary,such as a booth, vehicle, boat, or aircraft adapted for carrying on business. UnderTaylor, Wenner, and Sparks, the Oregon burglary definition is not a categoricalmatch.

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This Panel has the authority to disregard Cunningham even without en banereview. AfterCunningham, this Court addressed the proper application ofthe Taylorcategorical approach in several en bane opinions. United States v. Corona-Sanchez,291 F.3d 1201, 1207-08 (9th Cir. 2002) (en bane) (California theft statute is broaderthan generic theft under the categorical approach and is not an aggravated felony forguidelines purposes); United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9thCir. 2001) (enbane) (CaliforniaHealthand Safety Code 11360(a) is too broad underthe Taylor categorical approach to be an aggravated felony for guidelines purposes);see also Fernandez-Ruiz v. Gonzales, No. 03-74533, 2006 WL 3026023 (9th Cir.October 26, 2006) (in applying the categorical approach to determine whether aconviction constitutes a crime of violence under 18 U.S.C. 16(a), the Court askswhether the "full range of conduct" proscribed by the statute meets the statutorydefinition). These intervening en bane opinions, which detail the proper approachto the Taylor categorical analysis, constitute intervening authority ofa superior courtthat undermine the reasoning, or mode of analysis, of Cunningham, rendering itdevoid ofprecedential affect. Miller, 335 F.3d at 900.

2. The Interpretation Of The Term "Building" By The Oregon CourtsRenders The Oregon Burglary Statute Overbroad.A state court's interpretation ofa statute is binding in determiningwhether the

elements of generic burglary are present. Reina-Rodrigues, 2006 WL 3302652 at 8.

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Cunningham failed to consider state law that definitionally establishes the statutesoverbreadth under Taylor.

TheOregonCourtshave interpreted the term"building" expansively to includewithin its ambit a detached semi-truck trailer adapted bySt.Vincent de Paul to collectdonated goods, State v. Nallen, 196Or. App. 141, 143, 100 P.3d 788 (2004), a self-contained storage unit in a commercial storage facility, State v, Barker, 86 Or.App.394,397,739 P.2d 1045 (1987), and a potato shed, State v, Essig, 31 Or.App. 639,571 P.2d 170 (1977). This judicial interpretation ofthe term "building" expands theOregon burglary statute far beyond the Taylor definition ofgeneric burglary.

Under the state court's interpretation as well as the plain language of thedefinitional statute, an Oregon conviction does not categorically establish genericburglary.

3. This Court's Precedent Addressing Overbroad Burglary Statutes IsInconsistent With Cunningham.In Sparks, this Court for the first time addressed language in an Alaska

burglary statute that covered vehicles adapted for carrying ona business and held thatthis definition extendedbeyond generic burglary. The Court reasoned thattheAlaskadefinitionofa buildingwould encompass the theft ofa faxmachine, laptop computer,or cellular phone from a real estate agent's unoccupied automobile that had beenadapted for business purposes. Sparks, 265 F.3d at 833.

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Sparks recognized the distinction between generic burglary statutes thatcovered "specialized automobiles such as 'trailers, campers, and mobile homes -whose primary purpose is to serve as a dwelling and not as a mode oftransportation?'- and non-generic statutes that encompassed thefts from personal vehicles modifiedto carry on business that are not analogous to burglaryofa building or house becausethey do not present the risk ofpotential harm to the owner:

A vehicle that has been adapted for overnight accommodations haseither undergone a fundamental alteration, or originally was designed asa home. In contrast, an automobile or other vehicle may be "adapted ...for carrying on business" through a relatively minor modification, suchas installation of a cellular phone or facsimile machine. Such vehiclesremain personal automobiles and, unlike trailers, campers, or mobilehomes, such vehicles retain as their primary purpose serving as a modeof transportation rather than an office or other business establishment.They are not analogous to a building, house, or office. Moreover,considerable risk of harm exists with respect to theft from a vehicle inwhich a person lives or sleeps. The inherent potential for harm topersons resulting from theft ofa vehicle adapted for business purposes,however, is no greater than the risk to a person who simply uses his orher car for transportation.

Id. at 834.The government's argument that the Oregon statutory definition of"building"

is not overbroad fails to address the full range ofconduct covered by the Oregon andAlaska definitions. It is one thing to say, as this Court said in United States v.Sweeten, 933 F.2d 765, 771 (9th Cir, 1991), that a Texas statute prohibiting burglaryof a "habitation" falls within the Taylor definition of generic burglary because it

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covers vehicles adapted for overnight accommodations. It is quite another thing tosay, as this Court refused to say in Sparks, that a statute prohibiting burglary of avehicle adapted for carrying on a business therein falls within the Taylor definitionofgeneric burglary. While the potential for a violent confrontation between a burglarand an occupant may exist in all circumstances in which a vehicle adapted forovernight accommodation is burglarized, the same cannot be said in instances wherea vehicle only adapted for carrying on a business therein is burglarized.

The government's position directly conflicts with the holding and analysis ofWenner. In Wenner, the Court dealt with a Washington conviction for residentialburglary and had to decide whether it met the categorical test for burglary underTaylor" The Washington statute defined residential burglary as entering orremaining unlawfully in a dwelling other than a vehicle with the intent to commit acrime. 351 F.3d at 972. Dwellingwas defined as "any building or structure, thoughmovable or temporary, or a portion thereof, which is used or ordinarily used by aperson for lodging." Id. Under Washington law, a building could include a fencedarea, a railway car, or a cargo container. Id. at 972.

2 While the Wenner decision deals with a guideline application, rather than theACCA, the Court held that the analysis is the same. 351 F.3d at 973.

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The Court in Wenner held that the Washington statute did not meet the generictest for burglary because "building" included fenced areas, railway cars, and otherthings that are not buildings or structures under the generic Taylor meaning.351 F.3d at 972-73. This holding explicitly took into account the adaptationrequirement - that the "building" was used for lodging:

Thus, weagree with Wenner that the Washington statute isbroader thanfederal law; burglarizing a fenced area that doubles as a dwelling is aresidential burglary under Washington law, but not a "burglary" underTaylor, and thus not a burglary of a dwelling under the Guidelines.

351 F.3d at 972-73.This Court's recent decision in Reina-Rodriguez confirms that the Oregon

statute's adaptation requirement insufficiently narrows the definition of "building"toqualify it as generic burglary. InReina-Rodrigues, the Court rejected the argumentthat a Utah burglary conviction did not fit the Taylor definition for generic burglaryof a dwelling because, although the Utah burglary statute defined "building" morebroadly than the Taylor definition, the definition was limited to "a building which isusually occupied by a person lodging therein at night . . . ." Reina-Rodriguez; 2006WL 3302652 at 7 (citing Utah Code Ann. 76-6-201 (2. Thus, non-structures suchas vehicles, boats or airplanes adapted for sleeping Or lodging qualify as buildingsunder the Taylor definition of generic burglary. Id.

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In contrast, the Oregon definition of"building" is not sufficiently restricted byits adaptation requirement because, unlike the Utah statute, it covers vehicles, boats,and airplanes adapted not only for lodging but also for carrying on business. Anadaptation requirement that includes vehicles, boats, and aircrafts adapted forcarrying on business is not sufficiently narrow to fit the Taylor definition ofgenericburglary. Sparks, 265 F.3d at 834.

Because the full range ofconduct encompassed by the Oregon burglary statuteincludes unlawful entries into non-structures such as vehicles, boats, or aircraftadapted for carrying on business, the conviction under the statute does not alonecategorically establish generic burglary.E. The Conrt Should Consider The Application Of The Doctrine Of

Constitut ional Avoidance, As Required By Shepard And Haley, InApproaching The Viability Of Cunningham.The Court is free to address the Cunningham issue but should do so in the

contextof the interpretation ofthe ACCA required by the Supreme Court inShepardand Haley. For example, if the Court orders a remand for the district court to applya modified categorical approach to determine whether judicially noticeable factsnarrowed the scope of the Oregon burglary statute, the Court should also require thegoverrunent to establish compliancewith notice and proofequivalent to that requiredby the Fifth and Sixth Amendments. As thoroughly presented in Mr. Grisel' s

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OpeningBrief, intervening SupremeCourtauthority has undermined the precedentialvalue ofprevious case law regarding pleading and proof of the ACCA's predicatesunder the standard set out in Miller.

In both Shepard and Haley, the Supreme Court held that application ofAlmendarez-Torres, aswell as its extension, implicate the Doctrine ofConstitutionalAvoidance. Shepard, 544 U.S. at 25-26; Haley, 541 U.S. at 395-96. Because theACCA is silent on the method ofpleading and proof, and because pleading and proofofthe characteristics and sequenceofprior convictions implicateAlmendarez-Torres,the Supreme Court requires that this Court interpret the ACCA to avoid theconstitutional questions by construing the ACCA to require the same type ofpleadingand proof as required by the Fifth and Sixth Amendments. This requirement isprecisely what the en bane Court required in reinterpreting the federal drug statutesin United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en bane). For the samereasons, the ACCA must also be reinterpreted to avoid serious constitutional doubts.

In addressing the question posed to the parties, the Court should structure itsresolution in a manner that recognizes governing Supreme Court authority dictating

the manner ofpleading and proofof the predicate facts for the ACCA enhancement.

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Conclusion

Forthe foregoing reasons, theCourt should considerwhetherCunningham wascorrectly decided, determine thatitwas not, andholdthat theOregon second degreehurglary statute is not a categorical match for generic burglary and that predicateACCA facts must be pleaded and proven in a manner that meets Fifth and SixthAmendment requirements.

RESPECTFULLY SUBMITT

S

~this2h day ofNovember, 2006.

Stephen . Sady, Attorney forAmicusCuriaeCL,,(icusCuriae

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IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERlCA,Plaintiff-Appellee,

v.DARREL DUANE GRlSEL,

Defendant-Appellant.

))) CA No. 05-30585))))))

BRlEF FORMAT CERTIFICATION PURSUANT TORULE 32(a)(7)(C) AND NINTH CIRCUIT RULE 32-1

Pursuant to Ninth Circuit Rule 32(a)(7)(C) and Ninth Circuit Rule 32-1,I certify that theAmicus Curiae Briefof the Federal Public Defender for the DistrictofOregon isproportionately spaced, has a typeface ofl4 points ormore, and contains3,619 words.

DATED: November 20,2006.

Steven T. WaxAttorney for Amicus Curiae

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CERTIFICATE OF SERVICEI hereby certify that on November 20, 2006, I served the foregoing AMICUS

CURIAE BRIEF OF THE FEDERAL PUBLIC DEFENDER FORTHE DISTRICTOFOREGONIN SUPPORTOF DEFENDANT-APPELLANT'S SUPPLEMENTALBRIEF as follows:Stephen F. PeiferAssistant U'S. Attorney600 United States Courthouse1000 S.W. Third AvenuePortland, OR 97204

Kendra M. MatthewsRansom Blackman LLP1001 S.W. Fifth Avenue, Suite 1400Portland, OR 97204Attorney for Defendant-Appellant

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Documents

Amicus Curiae Brief of the FPD for the District of Oregon in Support of Defendant-Appellant's Supplemental Brief