                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 21 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30209

               Plaintiff - Appellee,             D.C. No. 6:10-cr-60117 HO

  v.
                                                 MEMORANDUM *
CHARLES FRANKLIN ELLISON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                               Submitted May 9, 2012 **
                                  Portland, Oregon

Before:        TASHIMA, TALLMAN, and IKUTA, Circuit Judges.

       Charles Franklin Ellison pled guilty to an indictment charging him, among

other things, as an Armed Career Criminal. The Armed Career Criminal Act

(“ACCA”) imposes a 15-year mandatory minimum sentence on a person convicted


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
of being a felon in possession of a firearm who “has three previous convictions . . .

for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Ellison

admits that his two drug convictions qualify as predicate felonies under the ACCA,

but argues that his conviction for Oregon first-degree burglary, Or. Rev. Stat. §

164.225, does not. The district court rejected his argument. Reviewing de novo,

United States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc), we affirm.

      1.     The ACCA’s residual clause defines “violent felony” to include “any

crime punishable by imprisonment for a term exceeding one year” that “otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B). We have previously held that Oregon first-

degree burglary categorically qualifies as a violent felony under the ACCA’s

residual clause. United States v. Mayer, 560 F.3d 948, 963 (9th Cir. 2009).

      2.     Ellison argues that the residual clause is void for vagueness because it

does not “provide a person of ordinary intelligence fair notice of what is

prohibited.” United States v. Williams, 553 U.S. 285, 304 (2008). However, “[w]e

consider whether a statute is vague as applied to the particular facts at issue, for a

plaintiff who engages in some conduct that is clearly proscribed cannot complain

of the vagueness of the law as applied to the conduct of others.” Holder v.




                                            2
Humanitarian Law Project, 130 S. Ct. 2705, 2718-19 (2010) (internal quotation

marks and alteration omitted).

       Ellison was found with firearms on September 5, 2010. It was clear on that

date that Oregon first-degree burglary qualified as an ACCA predicate offense.

See Mayer, 560 F.3d at 963 (published March 16, 2009). Thus, Ellison was “on

notice that [his] particular course of conduct [could] result in a mandatory

minimum prison term of 15 years.” James v. United States, 550 U.S. 192, 216

(2007) (Scalia, J., dissenting). Ellison may not complain that the residual clause is

vague as applied to others.

      Accordingly, the judgment of the district court is AFFIRMED.




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