                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 15-10566
          Plaintiff-Appellee,
                                        D.C. No.
             v.                  1:13-cr-00860-LEK-16

TINEIMALO ADKINS,
       Defendant-Appellant.               OPINION


     Appeal from the United States District Court
               for the District of Hawaii
     Leslie E. Kobayashi, District Judge, Presiding

        Argued and Submitted October 10, 2017
                  Honolulu, Hawaii

                   Filed March 5, 2018

   Before: Mary M. Schroeder, Dorothy W. Nelson,
     and M. Margaret McKeown, Circuit Judges.

               Opinion by Judge Nelson
2                   UNITED STATES V. ADKINS

                            SUMMARY*


                           Criminal Law

    The panel affirmed a conviction and sentence for a
Violent Crime in Aid of Racketeering under 18 U.S.C.
§§ 1959(a)(3), (2).

    The panel held that the district court erred when it
instructed the jury on the federal definition of “knowingly,”
which lacked a self-defense instruction, rather than on the
Hawaii definition. The panel held that the error was
harmless.

    The panel held that the Sentencing Commission’s deletion
of the residual clause in the career offender guideline,
U.S.S.G. § 4B1.2(a), was a substantive rather than clarifying
amendment, and that the residual clause therefore applies to
the defendant, who was sentenced prior to the amendment.

   The panel held that the defendant’s prior Hawaii
convictions for unlawful imprisonment in the first degree and
burglary in the first degree qualify as crimes of violence
under the residual clause.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. ADKINS                     3

                         COUNSEL

Marcus B. Sierra (argued), Honolulu, Hawaii, for Defendant-
Appellant.

Jill Aiko Otake (argued), Assistant United States Attorney,
United States Attorney’s Office, Honolulu, Hawaii, for
Plaintiff-Appellee.


                         OPINION

D.W. NELSON, Circuit Judge:

                         OVERVIEW

    Tineimalo Adkins appeals his conviction for a Violent
Crime in Aid of Racketeering (VICAR) under 18 U.S.C.
§§ 1959(a)(3), (2). Adkins argues that the district court erred
in instructing the jury on the federal, rather than state,
definition of “knowingly.” Because any error was harmless,
we AFFIRM Adkins’s conviction.

    Adkins also appeals his 210 month sentence, arguing that
his prior convictions do not constitute crimes of violence
under U.S.S.G. § 4B1.2. Because we find that Adkins’s
burglary and false imprisonment convictions qualify as
crimes of violence under § 4B1.2’s residual clause, we
AFFIRM Adkins’s sentence.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

  While incarcerated at the Halawa Correctional Facility in
Hawaii, Adkins and five other members of the United
4                UNITED STATES V. ADKINS

Samoan Organization (USOs) prison gang beat B.L., a
member of a rival gang, for owing a drug debt to the USOs.

    On October 10, 2014, a jury found Adkins guilty of a
Violent Crime in Aid of Racketeering in violation of 18
U.S.C. §§ 1959(a)(3), (2). As the basis for the VICAR
offense, Count 4 of the Indictment specifically alleged that
Adkins knowingly committed an assault on B.L. “in violation
of [s]ection 707-710 of the Penal Code of the State of
Hawaii.” Adkins submitted a Proposed Jury Instruction No.
4 setting forth the material elements of a section 707-710
violation, including the definitions of “serious bodily injury”
and “knowingly” in the Hawaii Penal Code. The Hawaii
Penal Code definition in Adkins’s proposed instruction was:
“A person acts ‘knowingly’ with respect to a result of his
conduct when he is aware that it is practically certain that his
conduct will cause such a result.” The proposed definition
also contained a self-defense instruction. In contrast, the
government proposed a federal definition of “knowingly” that
did not contain a self-defense instruction: “The word
‘knowingly’ means that the act was done voluntarily and
intentionally, and not because of mistake or accident.” Over
Adkins’s objections, the court adopted the government’s
broader, federal definition of “knowingly.”

    Before sentencing, the government requested that Adkins
be designated a career offender under U.S.S.G. § 4B1.1. At
that time, Adkins had three prior convictions: a 1997
conviction for Unlawful Imprisonment in the First Degree
under Hawaii Revised Statutes section 702-721 and Sexual
Assault in the Third Degree under Hawaii Revised Statutes
section 707-732, both arising from the same incident; and a
2003 conviction for Burglary in the First Degree under
Hawaii Revised Statutes section 708-810.
                 UNITED STATES V. ADKINS                     5

    Adkins filed a Motion to Continue Sentencing, pending
the outcome of Johnson v. United States, 135 S. Ct. 2551
(2015). The Supreme Court in Johnson ultimately struck
down the residual clause of the Armed Career Criminal Act
(“ACCA”) as unconstitutionally vague. Johnson, 135 S. Ct.
at 2557. Since § 4B1.2 contains an identically worded
residual clause to the one found in the ACCA, the parties
agreed that Johnson by extension applies to the Sentencing
Guidelines. The district court thus did not conduct a residual
clause analysis for any of Adkins’s convictions in light of
Johnson and the parties’ agreement.

    The district court held that Hawaii’s Burglary in the First
Degree met the federal generic definition of burglary and
Hawaii’s Sexual Assault in the Third Degree matched the
generic definition of sexual abuse of a minor, making both
convictions crimes of violence. The district court did not
reach whether Hawaii’s False Imprisonment in the First
Degree was a crime of violence.

    Because the district court ruled that Adkins had at least
two prior convictions that were crimes of violence, he was
subject to a 12-level increase (20 to 32) in his offense level
calculations. The advisory guideline imprisonment range for
an offense level of 20 is 70 to 87 months. An offense level
32 has a range of 210 to 262 months. The district court
sentenced Adkins to 210 months. Adkins timely appealed.

    On March 6, 2017, the Supreme Court held in Beckles v.
United States, 137 S. Ct. 886 (2017) that the residual clause
in § 4B1.2 of the Sentencing Guidelines is not void for
vagueness and thus upheld the clause as constitutional.
Beckles, 137 S. Ct. at 897. The government then presented
arguments on appeal that all three of Adkins’s prior
6                UNITED STATES V. ADKINS

convictions should qualify as crimes of violence under the
residual clause.

     JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo jury instructions for errors of law. See United
States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014). We
review de novo a district court’s determinations under the
Sentencing Guidelines, including the district court’s
assessment of whether a prior conviction qualifies as a “crime
of violence.” See United States v. Chavez-Cuevas, 862 F.3d
729, 734 (9th Cir. 2017).

                        DISCUSSION

I. Jury Instructions

    Adkins argues that the district court erred when it
instructed the jury on the federal, rather than the Hawaii
Penal Code, definition of “knowingly.” In the context of
VICAR, we have permitted jury instructions using generic
federal definitions. See United States v. Joseph, 465 F.
App’x. 690, 696 (9th Cir. 2012) (holding that the government
could prove “assault” under federal common law, and the
court was not required to instruct the jury under state law).
However, courts, in certain circumstances, should instruct on
the state definition or otherwise risk prejudice to the
defendant. See United States v. Carrillo, 229 F.3d 177, 185
(2d Cir. 2000).

    In United States v. Pimentel, the Second Circuit reiterated
that prejudice would result if a jury were not instructed on a
state-law definition that included a self-defense instruction in
                 UNITED STATES V. ADKINS                      7

the context of VICAR and similar statutes. 346 F.3d 285,
303–04 (2d Cir. 2003). “If the jury were ‘instructed simply
to find whether the defendant committed the offense of
“murder,”’ but ‘not instructed as to the requisite state of mind
or the law respecting self-defense[]’ . . . ‘[a]ffirming such a
conviction would be seriously problematic because the
defendant’s actions, as found by the jury, might not constitute
murder.’” Id. at 303 (quoting Carrillo, 229 F.3d at 184)
(alterations omitted).

    We agree with the Second Circuit. Adkins was deprived
of a self-defense instruction found within the Hawaii state
definition, but not the federal definition. “Confusion and
unfairness” most certainly arises when a jury lacks an
instruction that contains this specific defense, and “an
appellate court would have no way of knowing what the jury
found the defendant’s state of mind to be.” Id. (citations and
internal quotation marks omitted). Thus, the district court
erred when it instructed the jury on the federal definition that
lacked a self-defense instruction.

    Regardless, the error is harmless because “it is clear
beyond a reasonable doubt that a rational jury would have
found [Adkins] guilty absent the error.” United States v.
Anchrum, 590 F.3d 795, 801 (9th Cir. 2009) (citations and
internal quotation marks omitted). The record supports that
Adkins, without provocation, attacked B.L. with five other
men. B.L. was sitting down and watching television when
Adkins and the other men attacked. Thus, we find that under
the state definition of “knowingly”, Adkins was “aware that
it [was] practically certain that his conduct” would result in
harm to B.L. and a rational jury would not find that an
unprovoked attack with five other men was done in self-
defense.
8               UNITED STATES V. ADKINS

II. Sentencing Enhancement

A. The Sentencing Commission’s Deletion Of The
   Residual Clause In The Career Offender Guideline is
   Not Retroactive

    A defendant may only be deemed “a career offender”
under U.S.S.G. § 4B1.1(a) if the defendant “has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). When
Adkins received his sentence, § 4B1.2(a) defined a “crime of
violence” as:

       (a) The term “crime of violence” means any
       offense under federal or state law, punishable
       by imprisonment for a term exceeding one
       year, that –

           (1) has as an element the use, attempted
           use, or threatened use of physical force
           against the person of another, or

           (2) is burglary of a dwelling, arson, or
           extortion, involves use of explosives, or
           otherwise involves conduct that presents a
           serious potential risk of physical injury to
           another.

    While this appeal was pending, the Sentencing
Commission deleted the residual clause: “or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. App. C, amend. 798
(Supp. Nov. 1, 2016). Adkins had the misfortune of being
sentenced prior to this change.
                 UNITED STATES V. ADKINS                       9

     We may, however, apply a Sentencing Guideline
amendment retroactively on appeal only if it clarifies existing
law, rather than substantively changes the Guidelines. United
States v. Morgan, 376 F.3d 1002, 1010–11 (9th Cir. 2004).
We determine whether an amendment to the Sentencing
Guidelines is clarifying by applying three non-exclusive
factors. Id. (“There is no bright-line test for distinguishing
between clarifying and substantive amendments.”). The three
factors are: “(1) whether the amendment is included on the
list of retroactive amendments found in U.S.S.G. § 1B1.10(c);
(2) whether the Commission itself characterized the
amendment as a clarification; and (3) whether the amendment
resolves a circuit conflict.” Id. at 1011.

     We hold that all three factors counsel against retroactivity
in this appeal. First, the Sentencing Commission has not used
its delegated authority to make Amendment 798 retroactive,
as the Commission has done for a list of other amendments.
See U.S.S.G. § 1B1.10(d). The Commission considered
authorizing retroactive application, but stated that doing so
would be “complex and time intensive.” U.S. Sentencing
Comm’n, Public Meeting (Jan. 8, 2016) (statement of
Comm’n Chair, Chief Judge Patti B. Saris). Second, the
Commission did not characterize striking the residual clause
as a “clarifying” amendment. U.S.S.G. App. C, amend 798
(Supp. Nov. 1, 2016). Rather, it described the change as “a
matter of policy.” Id. Third, the Commission did not specify
that it was resolving a circuit split in making the change. See
United States v. Christensen, 598 F.3d 1201, 1205 (9th Cir.
2010) (citation and internal quotation marks omitted) (finding
an amendment retroactive where the Commission
“specifically states that the amendment addresses a circuit
conflict regarding application of the undue influence
enhancement.”). The Commission’s decision to remove a
10               UNITED STATES V. ADKINS

category of offenses from the Career Offender Guidelines
was not made with the “express purpose of resolving a
conflict among the circuits that resulted from reasonable
though differing interpretations of the Guideline[s].” Id.
(quoting United States v. Van Alstyne, 584 F.3d 803, 818 (9th
Cir. 2009)). The Commission did not, for example, clarify
that the Sixth Circuit correctly applied a Guideline to a set of
facts while the Eleventh Circuit erred. See Christensen,
598 F.3d at 1205. Nor did the Commission clarify the
meaning of a term in a Guideline. See Van Alstyne, 584 F.3d
at 818. Rather, the Commission entirely eliminated a clause
from a Guideline.

    The second and third factors do not weigh in favor of
retroactivity even though the Commission stated that the
residual clause in the Career Offender Guidelines “implicates
many of the same concerns cited by the Supreme Court in
[Johnson v. United States].” U.S.S.G. App. C, amend 798
(Supp. Nov. 1, 2016). In Johnson, the Court struck down as
unconstitutionally vague an identical provision in the ACCA,
in part, because of arbitrary and inconsistent application
among federal courts. Johnson, 135 S. Ct. at 2560
(recognizing residual clause under ACCA “created numerous
splits among the lower federal courts, where it . . . proved
nearly impossible to apply consistently”) (citations and
internal quotation marks omitted). But the second and third
factors examine whether the Commission meant to clarify
existing law, not whether—as occurred here—the
Commission made a substantive change in order to create a
new law that is now clearer on its face and in application. See
Morgan, 376 F.3d at 1010.

    The Commission also stated that Johnson “has given rise
to significant litigation regarding the guideline definition of
                    UNITED STATES V. ADKINS                            11

‘crime of violence,’” and so struck the clause to “alleviate
some of the ongoing litigation and uncertainty resulting from
the Johnson decision.” U.S.S.G. App. C, amend 798 (Supp.
Nov. 1, 2016). Since enactment of the amendment, the
Supreme Court in Beckles settled that Johnson does not apply
to the Sentencing Guidelines. See Beckles, 137 S. Ct. at 897.
As a result, applying retroactively the deletion of the residual
clause no longer resolves any uncertainty.

    While not part of our analysis under the Morgan-line of
cases, we note that the Supreme Court’s decision in Welch v.
United States, 136 S. Ct. 1257 (2016), is persuasive evidence
that removal of the residual clause is a substantive change to
the Sentencing Guidelines, not a clarifying one. In Welch, the
Court held that “Johnson changed the substantive reach of
the Armed Career Criminal Act, [by] altering the range of
conduct or the class of persons that the [Act] punishes.” Id.
at 1265 (emphasis added). It follows that the amendment
changed the “substantive reach” of the Sentencing
Guidelines, because Johnson made the exact alteration to the
ACCA that the Commission made to the Guidelines: it
eliminated the identically-worded residual clause. We
therefore do not strike the residual clause retroactively in
Adkins’s case.1

    As discussed below, the residual clause sweeps in at least
two of Adkins’s prior convictions as crimes of violence. The
clause was still in place at the time the district court
sentenced Adkins and survived constitutional challenge in



    1
       Our sister circuit has reached the same conclusion that the
elimination of the residual clause does not apply retroactively. See United
States v. Wurie, 867 F.3d 28, 35 n.7 (1st Cir. 2017).
12                 UNITED STATES V. ADKINS

Beckles.2 See United States v. Miller, 822 F.2d 828 (9th Cir.
1987) (holding that the government may withdraw an earlier
concession in light of intervening Supreme Court precedent).
“Because we may ‘affirm the district court’s sentencing
decision on any basis supported by the record,’” we analyze
Adkins’s prior convictions under the residual clause. United
States v. Simmons, 782 F.3d 510, 516 (9th Cir. 2015) (quoting
United States v. Polanco, 93 F.3d 555, 566 (9th Cir. 1996)).

B. Adkins’s Prior Convictions Are Crimes Of Violence
   Under The Residual Clause

    Having determined that the residual clause still applies to
Adkins’s prior convictions, we use a two-part test to assess
whether such convictions qualify as crimes of violence under
the clause. See Begay v. United States, 553 U.S. 137, 143
(2008); United States v. Park, 649 F.3d 1175, 1177–78 (9th
Cir. 2011). First, the “conduct encompassed by the elements
of the offense, in the ordinary case, must present a serious
potential risk of physical injury to another.” Park, 649 F.3d
at 1177 (quoting James v. United States, 550 U.S. 192, 208
(2007)). Second, the prior offense must be “roughly similar,
in kind as well as in degree of risk posed” to those
enumerated at the beginning of the residual clause—burglary
of a dwelling, arson, extortion, and crimes involving
explosives. Id. at 1178 (quoting Begay, 553 U.S. at 143). In
the “similar in kind” analysis, we must determine whether the




     2
     While Adkins’s conviction for Sexual Assault in the Third Degree
was one of the bases for the district court’s enhancement, we need not
decide whether the district court erred since Adkins’s two other
convictions are crimes of violence.
                    UNITED STATES V. ADKINS                           13

predicate offense involves “purposeful, violent, and
aggressive conduct.” Begay, 553 U.S. at 145.3

    1. Hawaii’s Burglary In The First Degree

    Hawaii’s Burglary in the First Degree provides:

         (1) A person commits the offense of burglary
         in the first degree if the person intentionally
         enters or remains unlawfully in a building,
         with intent to commit therein a crime against
         a person or against property rights, and:

             (a) The person is armed with a dangerous
             instrument in the course of committing the
             offense;

             (b) The person intentionally, knowingly,
             or recklessly inflicts or attempts to inflict
             bodily injury on anyone in the course of
             committing the offense; or

             (c) The person recklessly disregards a risk
             that the building is the dwelling of
             another, and the building is such a
             dwelling.


    3
       “In interpreting the residual clause, our jurisprudence has been
informed by cases interpreting an identical clause in the [ACCA].” United
States v. Lee, 821 F.3d 1124, 1127 (9th Cir. 2016) (citations omitted). We
recognize that, after Johnson, the residual clause analysis in these
precedents is overruled as applied to the ACCA, but remains instructive
as applied to the Sentencing Guidelines given the Supreme Court’s
decision in Beckles.
14               UNITED STATES V. ADKINS

       (2) An act occurs “in the course of committing
       the offense” if it occurs in effecting entry or
       while in the building or in immediate flight
       therefrom.

       (3) Burglary in the first degree is a class B
       felony.

Haw. Rev. Stat. Ann. § 708-810.

    Applying the two-part test, first, we have consistently
found that burglary involves conduct that presents a serious
potential risk of physical injury to another, even in cases
where the relevant state statutes had broader locational
elements than generic burglary. See, e.g, United States v.
Terrell, 593 F.3d 1084, 1093–94 (9th Cir. 2010). Prior to
Johnson, we held in United States v. Mayer that attempted
burglary in Oregon qualifies as a crime of violence under the
identical residual clause of the ACCA. 560 F.3d 948, 963
(9th Cir. 2009). Like Hawaii’s definitions of “building” and
“dwelling,” Oregon’s locational element is broader than the
generic definition of burglary because it includes movable
structures, such as boats and vehicles. Id. Nonetheless, we
pointed to the risk of potential injury due to a face-to-face
confrontation between the burglar and a third party, such as
a bystander or police officer, despite the fact that an occupant
of a building may not be present. Id.

    Second, we have established that “a burglar’s entry into
movable buildings typically involves, much like generic
burglary, . . . purposeful, violent, and aggressive conduct.”
Park, 649 F.3d at 1180 (quoting Terrell, 593 F.3d at 1094).
“[I]t is hard to imagine that a state’s ‘burglary’ definition
                 UNITED STATES V. ADKINS                    15

would not be at least ‘roughly similar’ to generic ‘burglary.’”
Id.

    Because we are bound to follow prior precedent unless it
is overruled by this Court sitting en banc or by the Supreme
Court, United States v. Arriaga-Pinon, 852 F.3d 1195 (9th.
Cir. 2017), we hold that Adkins’s first degree burglary
conviction qualifies as a crime of violence under the residual
clause in § 4B1.2.

   2. Hawaii’s Unlawful Imprisonment In The First
      Degree

    In light of Beckles, the government argues for the first
time on appeal that Hawaii’s Unlawful Imprisonment in the
First Degree qualifies as a crime of violence under the
residual clause.

   At the time of Adkins’s conviction, the crime of Unlawful
Imprisonment in the First Degree provided:

       (1) A person commits the offense of unlawful
       imprisonment in the first degree if the person
       knowingly restrains another person:

           (a) Under circumstances which expose the
           person to the risk of serious bodily injury;
           or

           (b) In a condition of involuntary servitude.

Haw. Rev. Stat. § 707-721 (1997).
16               UNITED STATES V. ADKINS

    As part of our residual clause analysis, we must decide
whether subsections 707-721 1(a) and 1(b) are alternative
elements that describe different crimes, making section 707-
721 divisible. See Lee, 821 F.3d. at 1129. The text of the
statute does not provide a clear answer, nor is there any
illuminating state case law to guide us. See Mathis v. United
States, 136 S. Ct. 2243, 2256 (2016). We may then look at
the “indictment, jury instructions, plea colloquy, and plea
agreement” when there is “difficulty in distinguishing
between the elements and means.” Almanza-Arenas v. Lynch,
815 F.3d 469, 481 (9th Cir. 2016); Mathis, 136 S. Ct. 2243 at
2256 (“if state law fails to provide clear answers, federal
judges have another place to look: the record of a prior
conviction itself.”). Adkins’s plea agreement confirms that
he pled to “knowingly restrain[ing] [D.F.] under
circumstances which exposed him to the risk of serious
bodily injury.” See Moncrieffe v. Holder, 569 U.S. 184, 192
(2013) (consulting plea agreement to determine which crime
Petitioner was convicted of). Thus, Adkins was convicted
under section 707-721(1)(a) and we may compare its
elements under the modified categorical approach to
determine whether they satisfy the two-part residual clause
test. See Lee, 821 F.3d at 1129.

    Section 707-721(1)(a) meets the first prong of the two-
part test because it presents a risk of physical injury “in the
ordinary case.” Lee, 821 F.3d at 1128 (quoting Park,
459 F.3d at 1177). The elements of “exposing the victim to
risk of serious bodily injury” track the language of the
residual clause and must be proven beyond a reasonable
doubt in each case. “[E]nvisioning the ‘ordinary case’ in the
abstract is less crucial where, as here, the risk of danger to
another person is built into the statute because the crime will
involve the level of risk required by the statute every time and
                 UNITED STATES V. ADKINS                      17

not just ‘ordinarily.’” United States v. Spencer, 724 F.3d
1133, 1144 (9th Cir. 2013).

    Under the second step, section 707-721(1)(a) is “similar
in kind” to burglary “because it can end in confrontation
leading to violence.” Harrington v. United States, 689 F.3d
124, 133 (2d Cir. 2012). The Second Circuit reasoned that
“[w]hereas burglary is a crime directed at property that may
be committed even in the absence of any other person to
confront . . . unlawful restraint necessarily targets another
person for the specific purpose of substantially curtailing that
person’s freedom of movement.” Id. Thus, “[s]uch conduct
categorically ‘sets the stage for a violent confrontation
between victim and assailant.’” Id. (quoting United States v.
Capler, 636 F.3d 321, 325 (7th Cir. 2011)). In support of our
conclusion, our other sister circuits have found that false
imprisonment crimes are similar in kind to burglary because
they pose similar risks. See, e.g., Capler, 636 F.3d at 327
(concluding that Illinois’ crime of unlawful restraint is a
crime of violence within the meaning of the residual clause).
We therefore hold that Hawaii Unlawful Imprisonment in the
First Degree qualifies as a crime of violence under the
residual clause.

                        CONCLUSION

    In sum, we hold the district court’s error in instructing the
jury on the federal definition of “knowingly” was harmless.
We therefore affirm Adkins’s conviction. Further, we hold
Adkins’s Unlawful Imprisonment and Burglary convictions
qualify as crimes of violence under the residual clause. We
thus affirm Adkins’s sentence.

    AFFIRMED.
