                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 15 2010

                                                                        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. 10-30009

              Plaintiff - Appellee,              D.C. No. 1:09-cr-30006-PA-1

  v.
                                                 MEMORANDUM *
MATTHEW SHERIDAN DERBY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                            Submitted October 4, 2010 **
                                Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Matthew Sheridan Derby appeals his sentence following his plea of guilty to

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Derby was sentenced to 180 months’ imprisonment pursuant to the Armed Career


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). He argues that the district court

erred in sentencing him to the ACCA mandatory minimum. We have jurisdiction

under 28 U.S.C. § 1291, and we review de novo whether a prior conviction is a

predicate felony under the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th

Cir. 2007) (en banc). We affirm.

      Derby’s relevant criminal history includes prior convictions for: (1)

unlawful delivery of methamphetamine, in violation of Or. Rev. Stat. § 475.890(2);

(2) delivery of a controlled substance, in violation of Or. Rev. Stat. §

475.992(1)(B) (current version at Or. Rev. Stat. § 475.840); and (3) burglary in the

first degree, in violation of Or. Rev. Stat. § 164.225. As explained below, these

prior convictions are predicate offenses for purposes of the ACCA.

      This court’s precedent clearly holds that a violation of Oregon’s first-degree

burglary statute, Or. Rev. Stat. § 164.225, is a predicate violent felony for purposes

of the ACCA. United States v. Mayer, 560 F.3d 948, 962 (9th Cir. 2009).

      Similarly, violations of Or. Rev. Stat. §§ 475.890(2) and 475.992(1)(B)

qualify as serious drug offenses for purposes of the ACCA. Under Oregon law, a

person violates § 475.890(2) by “deliver[ing] methamphetamine.” A person

violates § 475.992(1)(B) by “manufactur[ing] or deliver[ing] a controlled

substance.”


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      Under the ACCA, a state conviction qualifies as a “serious drug offense”

conviction if it “involv[es] manufacturing, distributing, or possessing with intent to

manufacture or distribute, 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). Sections §§ 475.890(2) and 475.992(1)(B) are both class B

felonies under Oregon law, which carry a maximum term of imprisonment of ten

years. Or. Rev. Stat. § 161.605(2).

      Derby argues that these prior drug convictions do not qualify as “serious

drug offenses” under the ACCA because in both cases he faced a sentencing

maximum of less than ten years under Oregon’s sentencing guidelines. This

argument is foreclosed by United States v. Parry, 479 F.3d 722, 724-25 (9th Cir.

2007), which held that the maximum sentence set forth in the statute, not Oregon’s

sentencing guidelines, determines the “maximum term of imprisonment” for

purposes of the ACCA. Therefore, Derby’s prior convictions for unlawful delivery

of methamphetamine and delivery of a controlled substance are predicate offenses

under the ACCA.

      Derby also challenges the district court’s determination that his prior

conviction under Oregon’s second-degree burglary statute was a violent felony for

purposes of the ACCA. The government in turn argues that Derby’s prior


                                          3
convictions under Oregon’s attempt to elude a police officer statute are violent

felonies under the ACCA. We need not address these questions because Derby’s

prior convictions for first-degree burglary, unlawful delivery of methamphetamine,

and delivery of a controlled substance are ACCA predicate offenses. With three

predicate offenses, the district court properly determined that the ACCA

enhancement applied to Derby.

      AFFIRMED.




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