                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             AUG 09 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                       No. 07-10049

              Plaintiff - Appellee,             D.C. No. CR-03-00522-HG

  v.
                                                MEMORANDUM*
DENNIZ PERRY, a.k.a Deniz Perry and
Dennis Daqueen Perry,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                  Helen Gillmor, Senior District Judge, Presiding

                       Argued and Submitted June 16, 2010
                               Honolulu, Hawaii

Before: B. FLETCHER, PREGERSON, and CANBY, Circuit Judges.

       Denniz Perry was convicted by a jury of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Perry in

accordance with the fifteen-year mandatory minimum prison term of the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), and Perry appealed. In a


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
previous decision, we affirmed Perry’s conviction, but we remanded for

resentencing because the district court had erred in relying solely on the

Presentence Report to determine that Perry had three qualifying prior convictions.

See United States v. Perry, 190 F. App’x 571, 574-75 (9th Cir. 2006)

(unpublished). On remand, the government submitted certain documents in

support of its contention that Perry’s two prior convictions for second-degree

burglary and Perry’s prior conviction for promotion of a dangerous drug in the first

degree were qualifying convictions under the ACCA. The district court concluded

that all three convictions qualified and reimposed the ACCA enhancement. Perry

again appeals. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291, and we reverse.

       We agree with the district court that Perry’s conviction for promotion of a

dangerous drug in the first degree qualifies under the ACCA as a “serious drug

offense.” The ACCA defines “serious drug offense” to include “an offense under

State law, involving . . . distributing . . . a controlled substance . . . for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18

U.S.C. § 924(e)(2)(A)(ii). Perry pleaded guilty to distributing “One or more

preparations, compounds, mixtures, or substances of an aggregate weight of: (A)

One-eighth ounce or more, containing methamphetamine, heroin, morphine,


                                             2
cocaine or any of their respective salts, isomers, and salts of isomers.” Haw. Rev.

Stat. § 712-1241(1)(b)(ii)(A) (West 1998). Perry does not contest that the

substances included in the statute are controlled substances, and the violation of

section 712-1241 is a class A felony subject to a maximum term of twenty years in

prison, see id. §§ 706-659, 712-1241(2). Thus, the statute categorically is a

“serious drug offense,” regardless of the fact that Perry’s guilty plea did not

specify which drug he had distributed. See Taylor v. United States, 495 U.S. 575,

602 (1990) (considering “only to the fact of conviction and the statutory definition

of the prior offense” to determine whether the offense qualified as a predicate

felony under the ACCA).

       We disagree, however, with the district court’s conclusion that Perry’s two

prior burglary convictions qualify as violent felonies. The ACCA defines “violent

felony” to include “any crime punishable by imprisonment for a term exceeding

one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or

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

to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Perry pleaded guilty to two counts of

burglary in the second degree, in violation of Hawai’i Revised Statutes section

708-811. That statute provides that “[a] person commits the offense of burglary in

the second degree if the person intentionally enters or remains unlawfully in a


                                             3
building with intent to commit therein a crime against a person or against property

rights.” Haw. Rev. Stat. § 708-811(1) (West 1999). The violation of section 708-

811 is a class C felony, punishable by up to five years in prison. Id. §§ 706-660,

708-811(2).

      Second-degree burglary in Hawai’i is not categorically a violent felony. In

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

generic crime of burglary requires entry into “a structure designed for occupancy

that is intended for use in one place.” Id. at 848. The Hawai’i second-degree

burglary statute is not limited the entry of such structures, instead defining

“building” to include movable objects such as vehicles, railway cars, aircraft, and

watercraft. See Haw. Rev. Stat. § 708-800 (West 1999).

      Perry’s second-degree burglary convictions also fail to qualify as violent

felonies under the modified categorical approach. Under the modified categorical

approach, we consider whether “judicially recognized documents show that [Perry]

was necessarily convicted of generic burglary.” United States v. Terrell, 593 F.3d

1084, 1092 (9th Cir. 2010) (citing Shepard v. United States, 544 U.S. 13, 15-16




                                           4
(2005)).1 At resentencing, the government introduced Perry’s indictment, plea

agreement, guilty plea, and judgment. These documents do not establish that Perry

burgled an immovable structure. Perry’s indictment merely states that on two

occasions he unlawfully entered a “building”—a term of art defined more broadly

than the generic definition of burglary—located at a particular address. Neither the

plea agreement, the guilty plea, nor the judgment provided additional facts about

the nature of the structures that Perry entered. Thus, “the documents submitted by

the prosecution do not demonstrate that [Perry] was necessarily convicted of

burglary of an unmovable structure, so under the modified categorical approach,

[Perry]’s prior offenses do not fit within the ACCA’s enumerated offenses.” Id. at

1093.

        The government also waived any reliance on the ACCA’s residual clause.

Although the government might be correct that, at the time of resentencing, any

reliance on the residual clause was foreclosed by United States v. Fish, 368 F.3d

1200, 1203-04 (9th Cir. 2004), the government has not adequately responded to

advances in the law that have occurred since Perry’s resentencing. On April 18,

2007, the Supreme Court decided James v United States, 550 U.S. 192 (2007),

        1
        We note that as of the date of this disposition, Terrell’s mandate has not yet
issued. We nonetheless find its reasoning on the application of the modified
categorical approach persuasive.

                                          5
which explained that the residual clause may “cover conduct that is outside the

strict definition of, but nevertheless similar to, generic burglary” and held that

attempted burglary in Florida was a violent felony under the residual clause. Id. at

212. The government filed its answering brief on June 5, 2007, and, although it

cited James, it did not argue that James permitted a finding that Perry’s burglary

convictions qualified as violent felonies under the residual clause.

      Then, on June 30, 2008, we decided United States v. Mayer, 530 F.3d 1099

(9th Cir. 2008), withdrawn and superseded by 560 F.3d 948 (9th Cir. 2009), cert.

denied, 130 S. Ct. 158 (2009). Relying in part on James, Mayer held that, while

Oregon’s first-degree burglary statute did not meet the generic definition of

burglary, the statute was covered by the ACCA’s residual clause. Mayer, 560 F.3d

at 959-63. Even if there was any doubt after James that the residual clause

potentially could apply to Perry’s case, Mayer erased that doubt.

      Nevertheless, the government failed to bring Mayer to our attention, either

through a Federal Rule of Appellate Procedure 28(j) letter or through a motion for

supplemental briefing. The government did not argue that the residual clause

applied until after we ordered supplemental briefing on our own motion, two

months after Mayer came down, on the questions of the effect of Mayer, if any, on

this case, and whether the government waived any reliance on the residual clause.


                                           6
      Having considered the supplemental briefs and heard oral argument on the

matter, we decline to exercise our discretion to reach the question of the

applicability of the residual clause to Perry’s case. See United States v.

Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir. 2007) (holding that government

waived alternative argument that sentencing enhancement applied when it failed to

raise the argument in its brief); see also Beazer East, Inc. v. Mead Corp., 525 F.3d

255, 264-65 (3d Cir. 2008) (holding that party waived reliance on an intervening

change in law when it failed to inform the court of that change through either a

Rule 28(j) letter or a motion for additional briefing ); United States v. Cheal, 389

F.3d 35, 45 n.10 (1st Cir. 2004) (similar); cf. La.-Pac. Corp. v. ASARCO Inc., 24

F.3d 1565, 1582-83 (9th Cir. 1994) (addressing an intervening change in law

because the plaintiffs promptly brought the change to the attention of the court

through a Rule 28(j) letter). Accordingly, we hold that because Perry’s two

second-degree burglary convictions did not qualify as violent felonies, the district

court erred in applying the ACCA enhancement.2 We vacate Perry’s sentence and

remand for resentencing without the ACCA enhancement.

      REVERSED and REMANDED with instructions.

      2
       In light of our holding, we do not address Perry’s argument that his two
burglary convictions did not occur “on occasions different from one another.” 18
U.S.C. § 924(e)(1).

                                          7
