                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 26 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30216

               Plaintiff - Appellee,             D.C. No. 1:12-cr-00054-PA

  v.
                                                 MEMORANDUM*
NORMAN BRUCE SPENCER, a.k.a.
Donovan Robert Carlton,

               Defendant - Appellant.


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

                              Submitted June 25, 2014**

Before:        HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       Norman Bruce Spencer appeals from the district court’s judgment and

challenges the district court’s decision to sentence him under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to 188 months, following his guilty-


          *
             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).
plea conviction for being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Spencer contends that ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii),

is unconstitutionally vague as applied to his prior conviction for attempted injury

to a child. We review de novo whether a statute is unconstitutionally vague. See

United States v. Spencer, 724 F.3d 1133, 1136 n.2 (9th Cir. 2013). As Spencer

acknowledges, his argument is foreclosed. See id. at 1135-36, 1145-46 (citing

Sykes v. United States, 131 S. Ct. 2267, 2277 (2011) and James v. United States,

550 U.S. 192, 210 n.6 (2007)). Because the Supreme Court has concluded that the

residual clause is not unconstitutionally vague, see id., we decline to apply the rule

of lenity or the doctrine of constitutional avoidance. See United States v. Shill, 740

F.3d 1347, 1355 (9th Cir. 2014) (rule of lenity and doctrine of constitutional

avoidance are inapplicable when a statute is not ambiguous).

      AFFIRMED.




                                           2                                     13-30216
