No.

05-30585

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DARREL DUANE GRISEL, Defendant-Appella n t.

Appeal from the United States District Court for the District of Oregon

AMICUS CURIAE BRIEF OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF OREGON IN SUPPORT OF DEFENDANT-APPELLANT'S SUPPLEMENTAL BRIEF

Steven T. Wax, Federal Public Defender Stephen R. Sady, Chief Deputy Federal Public Defender Craig E. Weinerman, Assistant Federal Public Defender Matthew M. Rubenstein, Assistant Federal Public Defender 10I S.W. Main Street, Suite 1700 Portland, OR 97204 (503) 326-2123 Counsel for Amicus Curiae

TABLE OF CONTENTS Page

A. B. C.

Identity Of Amicus Curiae And Statement OfInterest . . . . . . . . . . . . . .. -1Summary Of The Argument

Taylor Requires That, In OrderFor A Conviction To Categorically Meet The Definition OfGeneric Burglary, The State Burglary Statute Cannot Define Burglary Broader Than Entry Into A Building Or Other Structure
.......................................................... -5-

" -2-

D.

The Oregon Second Degree Burglary Statute Is Broader Than The Taylor Definition Of Generic Burglary I.

-6-

Oregon Burglaries Do Not Meet The Categorical Test Of Taylor ..................................................... -8The Interpretation Of The Term "Building" By The Oregon Courts Renders The Oregon Burglary Statute Overbroad , -9This Court's Precedent Addressing Overbroad Burglary Statutes Is Inconsistent With Cunningham -10-

2.

3.

E.

The Court Should Consider The Application Of The Doctrine Of Constitutional Avoidance, As Required By Shepard And Haley, In Approaching The Viability Of Cunningham -14-

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -16BriefFonnat Certification Certificate of Service -17-

TABLE OF AUTHORITIES FEDERAL CASES

Almendarez-Torres v. United States, 523 U.S. 224 (1998) Dretke v. Haley, 541 U.S. 386 (2004) Fernandez-Ruiz v. Gonzales, No. 03-74533,2006 WL 3026023 (9th Cir. October 26,2006) Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) Shepard v. United States, 544 U.S. 13 (2005) Taylor v. United States, 495 U.S. 575 (1990) United States v. Bonat, 106 F.3d 1472 (9th Cir. 1997) United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990)

2,15

4,15

4,10,15

4, 5, 15

passim

5,6,7

16

2,9

passim

ii

United States v. Hunt, 925 F.2d 1181 (9th Cir. 1991)

United States v. Reina-Rodriguez; No. 05-10475, 2006 WL 3302652 (9th Cir. Nov. 15,2006) ... 6,9,10,13,14 United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) United States v. Sparks, 265 F.3d 825 (9th Cir. 2001) United States v. Sweeten, 933 F.2d 765 (9th Cir. 1991) United States v. Wenner, 351 F.3d 969 (9th Cir. 2003)

2,9

passim

12

5, 8, 11, 12, 13

STATE CASES
State v. Barker, 86 Or. App. 394, 739 P.2d 1045 (1987) State v. Essig, 31 Or. App. 639, 571 P.2d 170 (1977) State v. Nollen, 196 Or. App. 141, 100 P.3d 788 (2004) DOCKETED CASES United States v. Ankeny, CA No. 05-3045 United States v. Ellis, CA No. 05-30425

10

10

10

III

FEDERAL STATUTES
18U.S.C.16 18 U.S.C. 16(a) 18 U.S.C. 3006A 18 U.S.C. 922(g) 18 U.S.C. 924(e) 7 9 I 3 1

STATE STATUTES
Or. Rev. Stat. 164.205(1) Or. Rev. Stat. 164.215(1) Utah Code Ann. 76-6-201 (2) 7,8 8 14

IV

A.

Identity Of Amicus Curiae And Statement Of Interest.

The Federal Public Defender for the District ofOregon provides representation

to the indigent accused in the District ofOregon pursuant to 18 U.S.C. 3006A. The office employs 23 lawyers whose exclusive practice is in the representation of financially eligible people, both at trial and on appeal in this Circuit. Many of the lawyers in the office have extensive criminal defense experience practicing in the Oregon state courts and addressing questions of Oregon law in federal court. The significance of Oregon burglary convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), is a frequently recurring issue in the representation of our clients. The Federal Public Defender for the District of Oregon represents appellants in two cases in which submissions have been withdrawn by this Court's order dated October 19, 2006, pending issuance ofthe mandate in United States v. Grisel, or until further order ofthe Court. United States v. Ellis, CA No. 05-30425; United States v.

Ankeny, CA No. 05-30457. Thus, the Court has apparently determined that the
decision in Grisel may affect the outcome of Ellis and Ankeny. The Oregon Federal Defender Office's interest in this matter also derives from the large numbers ofactual and potential clients harmed when Oregon burglary convictions are inappropriately counted as predicate offenses under the ACCA, as well as from the desire for greater
-1-

certainty in the law given the intra-Circuit dissonance regarding the Oregon burglary statute. The Grisel case also involves a question of first impression regarding the Supreme Court's requirement that courts apply the Doctrine of Constitutional Avoidance in cases, such as the ACCA, where Fifth and Sixth Amendment claims require application and expansion of Almendarez-Torres v. United States, 523 U.S. 224 (1998). This issue directly applies to the Oregon Federal Public Defender clients and should be considered in resolving the Court's question regarding rehearing en
bane.
B. Summary Of The Argument

In two separate cases, this Court has addressed state burglary statutes that include overbroad definitions that include entry into locations that do not meet the generic definition ofburglary: United States v. Sparks, 265 F.3d 825 (9th Cir. 2001); and United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990). The Sparks decision, with the benefit of the decade of analytic experience following Taylor v.
United States, 495 U.S. 575 (1990), as well as two en bane decisions on the modified

categorical approach, J held that the Alaskan burglary statute, which included vehicles

'United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en bane); United States v, Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en bane).
-2-

"adapted" "for carrying on business therein," did not constitute generic burglary. On the other hand, in the immediate aftermath ofthe Taylor decision, this Court - with no consideration of the specific Oregon definition of "building" and the State's construction of the scope of the burglary statute - came to the contrary conclusion that the Oregon burglary statute, which includes vehicles "adapted" "for carrying on business therein," constituted generic burglary. This Court should grant rehearing en
bane to resolve the conflict in authority and to correct the error in the Cunningham

court's analysis, which was compounded by a similar analytic error in United States v. Hunt, 925 F.2d 1181 (9th Cir. 1991) (following Cunningham regarding identical language in Oregon's first degree burglary statue). In addition to the traditional purpose of en bane review in resolving conflicting authority within the Circuit, rehearing en bane is appropriate simply because of the extraordinary importance ofthe issue. For an individual charged under the ACCA, the consequences are devastating. Not only is the statutory minimum increased beyond the ten year maximum in 18 U.S.C. 922(g), a mandatory minimum term of imprisonment of 15 years is required. Further, because burglary is a frequently prosecuted felony crime in the State of Oregon, the number of burglary convictions, when coupled with the frequency of ACCA prosecutions in the District of Oregon,

-3-

make this an important issue to be resolved for the federal administration ofjustice in Oregon. As the Court decides whether the question is appropriate for rehearing en bane, the Court should consider that Mr. Grisel is also entitled to relief based on the statutory construction of the ACCA required by Shepard v. United States, 544 U.S. 13 (2005), and Dretke v. Haley, 541 U.S. 386 (2004). Although resolution of the

Cunningham issue may make resolution of the statutory construction argument

unnecessary, the Court is free to grant reliefon this alternative ground because, under

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en bane), the mode ofanalysis
for prior ACCA cases has been undercut by intervening, controlling precedents ofthe United States Supreme Court. This Court should recognize that Oregon's burglary statute is not sufficiently narrow to fit the categorical Taylor definition of generic burglary. The Court should rule, either as a panel or en bane, that conviction under the Oregon burglary statute does not categorically constitute a "violent felony" under Taylor and remand to the district court for application ofthe modified categorical approach approved in Taylor and Shepard. If the Court finds the predicate factors for the ACCA have not been pleaded and proven in accordance with Fifth and Sixth Amendment standards, the Court should remand for resentencing under the unenhanced firearms statute.
-4-

C.

Taylor Requires That, In Order For A Conviction To Categorically Meet The Definition Of Generic Burglary, The State Burglary Statute Cannot Define Burglary Broader Than Entry Into A Building Or Other Structure.
In Taylor, the Supreme Court defined burglary under the ACCA as "an

unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." 495 U.S. at 598. In order to determine if a prior conviction fits that definition, the Court devised a categorical approach. That is, the sentencing court can look only to the statutory definition of the prior offense and cannot examine the particular facts underlying the conviction. !d. If the statute is broader than generic burglary, and would allow a defendant to be convicted even if a jury was not required to find all of the above elements, the conviction is not categorically generic burglary for purposes ofthe ACCA. Shepard, 544 U.S. at 15-16 (citing Taylor); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997). In deciding on the definition of generic burglary, the Taylor Court was well aware that many States defined burglary more broadly. The Court specifically noted States that included places other than buildings in their burglary statutes, such as automobiles, vending machines, booths, tents, boats, and railway cars. Taylor, 495 U.S. at 599. Indeed, since the decision in Taylor, many state statutes defining burglary have been held to be overly broad and unable to meet the categorical test.

See, e.g., United States v. Wenner, 351 F.3d 969, 972-73 (9th Cir. 2003)(Washington
-5-

burglary statute too broad because its definition of building includes a fenced area, a railway car, or cargo container); United States v. Sparks, 265 F.3d 825, 833-35 (9th Cir. 2001) (Alaska burglary statute too broad because its definition of building includes "propelled vehicle ... adapted ... for carrying on business" and storage lockers not large enough to accommodate a person); Bonat, 106 F.3d at 1475, 1477 (Oklahoma burglary statute overly broad because offense could be committed in a variety ofobjects, such as railroad cars and automobiles); see United States v. ReinaRodriguez, No. 05-10475,2006 WL3302652 (9thCir. Nov. 15, 2006) (Utah burglary

statute that defines "building" to include "watercraft" and "aircraft" was not overbroad because the definition of "building" is restricted to structures "usually occupied by a person lodging therein at night.") D. The Oregon Second Degree Burglary Statnte Is Broader Than The Taylor Definition Of Generic Burglary. In Cunningham, the Court issued a per curiam opinion after a remand pursuant to Taylor. In less than a paragraph, and with no analysis ofthe Oregon definition of "building," the Court opined that the basic elements of Oregon burglary were the same as the generic definition in Taylor - the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Cunningham, 911 F.2d at 363. Cunningham only cited the general language of the Oregon burglary statute and assumed that the term "building" was used in the Taylor generic sense.
-6-

Cunningham was decided incorrectly for three reasons. First, by failing to

analyze Oregon's broad definition ofvbuilding" in OR. REv. STAT. 164.205(1), which "includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation ofpersons or for carrying on business therein," Cunningham omitted a necessary step in the analysis required by Taylor, which excludes burglaries ofnonstructures such as automobiles, boats, and aircraft from the definition of generic burglary. Second, Cunningham failed to analyze the interpretation ofOR. REv. STAT. 164.205(1) in Oregonjudicial opinions expanding the definition of"building" beyond generic burglary. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir, 2006) (California battery statute is not categorically a crime of violence under 18 U.S.C. 16 because the California courts have interpreted it in a way that does not require force capable of hurting or causing injury or violence); Bonat, 106 F.3d at 1475-76 (although Arizona burglary statute "on its face" met the definition ofgeneric burglary, the Arizona courts expanded the statute beyond generic burglary and rendered it not categorically generic burglary). Third, Cunningham conflicts with a subsequent decision ofthis Court that correctly applied Taylor and held that a statute that defines "building" identically to the Oregon statute - including non-structures adapted for carrying on business - is overbroad. Sparks, 265 F.3d at 833-835.

-7-

1.

Oregon Burglaries Do Not Meet The Categorical Test OITaylor.

The Oregon definition of burglary goes well beyond the type of building intended by the generic definition required by Taylor. The first level of the Oregon definition tracks the Taylor language. A person commits burglary in the second degree ifhe or she "enters or remains unlawfully in a building with intent to commit a crime therein." OR. REv. STAT. 164.215(1). However, Oregon law goes on to define building very broadly: '''Building,' in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein." OR. REv. STAT. 164.205( I) (emphasis added). The Oregon definition ofbuilding is too broad to meet the Taylor generic definition for the same reasons mentioned by the Taylor Court:

A few States' burglary statutes, however, as has been noted above, define burglary more broadly e.g., ... by including places, such as automobiles and vending machines, other than buildings. One of Missouri's second-degree burglary statutes in effect at the times of petitioner Taylor's convictions included breaking and entering "any booth or tent, or any boat or vessel, or railroad car."
495 U.S. at 599. The Oregon definition of "building" does not differ in any meaningful way from the statutes held to be overbroad in Wenner and Sparks. The statute defines burglary as entry into things beyond the generic meaning ofburglary, such as a booth, vehicle, boat, or aircraft adapted for carrying on business. Under

Taylor, Wenner, and Sparks, the Oregon burglary definition is not a categorical
match.
-8-

This Panel has the authority to disregard Cunningham even without en bane review. After Cunningham, this Court addressed the proper application ofthe Taylor categorical approach in several en bane opinions. United States v. Corona-Sanchez, 291 F.3d 1201, 1207-08 (9th Cir. 2002) (en bane) (California theft statute is broader than generic theft under the categorical approach and is not an aggravated felony for guidelines purposes); United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en bane) (California Health and Safety Code 11360(a) is too broad under the Taylor categorical approach to be an aggravated felony for guidelines purposes);

see also Fernandez-Ruiz v. Gonzales, No. 03-74533, 2006 WL 3026023 (9th Cir.
October 26, 2006) (in applying the categorical approach to determine whether a conviction constitutes a crime of violence under 18 U.S.C. 16(a), the Court asks whether the "full range of conduct" proscribed by the statute meets the statutory definition). These intervening en bane opinions, which detail the proper approach to the Taylor categorical analysis, constitute intervening authority ofa superior court that undermine the reasoning, or mode of analysis, of Cunningham, rendering it devoid ofprecedential affect. Miller, 335 F.3d at 900.

2.

The Interpretation Of The Term "Building" By The Oregon Courts Renders The Oregon Burglary Statute Overbroad.

A state court's interpretation of a statute is binding in determining whether the elements of generic burglary are present. Reina-Rodrigues, 2006 WL 3302652 at 8.

-9-

Cunningham failed to consider state law that definitionally establishes the statutes
overbreadth under Taylor. The Oregon Courts have interpreted the term "building" expansively to include within its ambit a detached semi-truck trailer adapted by St. Vincent de Paul to collect donated goods, State v. Nallen, 196 Or. App. 141, 143, 100 P.3d 788 (2004), a selfcontained storage unit in a commercial storage facility, State v, Barker, 86 Or.App. 394,397,739 P.2d 1045 (1987), and a potato shed, State v, Essig, 31 Or.App. 639, 571 P.2d 170 (1977). This judicial interpretation ofthe term "building" expands the Oregon burglary statute far beyond the Taylor definition of generic burglary. Under the state court's interpretation as well as the plain language of the definitional statute, an Oregon conviction does not categorically establish generic burglary.

3.

This Court's Precedent Addressing Overbroad Burglary Statutes Is Inconsistent With Cunningham.

In Sparks, this Court for the first time addressed language in an Alaska burglary statute that covered vehicles adapted for carrying on a business and held that this definition extended beyond generic burglary. The Court reasoned thatthe Alaska definition ofa building would encompass the theft ofa fax machine, laptop computer, or cellular phone from a real estate agent's unoccupied automobile that had been adapted for business purposes. Sparks, 265 F.3d at 833.

-10-

Sparks recognized the distinction between generic burglary statutes that

covered "specialized automobiles such as 'trailers, campers, and mobile homes whose primary purpose is to serve as a dwelling and not as a mode oftransportation?' - and non-generic statutes that encompassed thefts from personal vehicles modified to carry on business that are not analogous to burglary ofa building or house because they do not present the risk of potential harm to the owner: A vehicle that has been adapted for overnight accommodations has either undergone a fundamental alteration, or originally was designed as a home. In contrast, an automobile or other vehicle may be "adapted ... for carrying on business" through a relatively minor modification, such as installation of a cellular phone or facsimile machine. Such vehicles remain personal automobiles and, unlike trailers, campers, or mobile homes, such vehicles retain as their primary purpose serving as a mode of transportation rather than an office or other business establishment. They are not analogous to a building, house, or office. Moreover, considerable risk of harm exists with respect to theft from a vehicle in which a person lives or sleeps. The inherent potential for harm to persons resulting from theft of a vehicle adapted for business purposes, however, is no greater than the risk to a person who simply uses his or her car for transportation.

Id. at 834.
The government's argument that the Oregon statutory definition of"building" is not overbroad fails to address the full range ofconduct covered by the Oregon and Alaska definitions. It is one thing to say, as this Court said in United States v.

Sweeten, 933 F.2d 765, 771 (9th Cir, 1991), that a Texas statute prohibiting burglary
of a "habitation" falls within the Taylor definition of generic burglary because it

-11-

covers vehicles adapted for overnight accommodations. It is quite another thing to say, as this Court refused to say in Sparks, that a statute prohibiting burglary of a vehicle adapted for carrying on a business therein falls within the Taylor definition ofgeneric burglary. While the potential for a violent confrontation between a burglar and an occupant may exist in all circumstances in which a vehicle adapted for overnight accommodation is burglarized, the same cannot be said in instances where a vehicle only adapted for carrying on a business therein is burglarized. The government's position directly conflicts with the holding and analysis of
Wenner. In Wenner, the Court dealt with a Washington conviction for residential

burglary and had to decide whether it met the categorical test for burglary under

Taylor"

The Washington statute defined residential burglary as entering or

remaining unlawfully in a dwelling other than a vehicle with the intent to commit a crime. 351 F.3d at 972. Dwelling was defined as "any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging." Id. Under Washington law, a building could include a fenced area, a railway car, or a cargo container. Id. at 972.

While the Wenner decision deals with a guideline application, rather than the ACCA, the Court held that the analysis is the same. 351 F.3d at 973.
2

-12-

The Court in Wenner held that the Washington statute did not meet the generic test for burglary because "building" included fenced areas, railway cars, and other things that are not buildings or structures under the generic Taylor meaning. 351 F.3d at 972-73. This holding explicitly took into account the adaptation

requirement - that the "building" was used for lodging: Thus, we agree with Wenner that the Washington statute is broader than federal law; burglarizing a fenced area that doubles as a dwelling is a residential burglary under Washington law, but not a "burglary" under Taylor, and thus not a burglary of a dwelling under the Guidelines. 351 F.3d at 972-73. This Court's recent decision in Reina-Rodriguez confirms that the Oregon statute's adaptation requirement insufficiently narrows the definition of "building" to qualify it as generic burglary. In Reina-Rodrigues, the Court rejected the argument that a Utah burglary conviction did not fit the Taylor definition for generic burglary of a dwelling because, although the Utah burglary statute defined "building" more broadly than the Taylor definition, the definition was limited to "a building which is usually occupied by a person lodging therein at night ...." Reina-Rodriguez; 2006 WL 3302652 at 7 (citing Utah Code Ann. 76-6-201 (2. Thus, non-structures such as vehicles, boats or airplanes adapted for sleeping Or lodging qualify as buildings under the Taylor definition of generic burglary. Id.

-13-

In contrast, the Oregon definition of"building" is not sufficiently restricted by its adaptation requirement because, unlike the Utah statute, it covers vehicles, boats, and airplanes adapted not only for lodging but also for carrying on business. An adaptation requirement that includes vehicles, boats, and aircrafts adapted for carrying on business is not sufficiently narrow to fit the Taylor definition of generic burglary. Sparks, 265 F.3d at 834. Because the full range ofconduct encompassed by the Oregon burglary statute includes unlawful entries into non-structures such as vehicles, boats, or aircraft adapted for carrying on business, the conviction under the statute does not alone categorically establish generic burglary. E. The Conrt Should Consider The Application Of The Doctrine Of Constitutional Avoidance, As Required By Shepard And Haley, In Approaching The Viability Of Cunningham. The Court is free to address the Cunningham issue but should do so in the context ofthe interpretation ofthe ACCA required by the Supreme Court in Shepard and Haley. For example, ifthe Court orders a remand for the district court to apply a modified categorical approach to determine whether judicially noticeable facts narrowed the scope ofthe Oregon burglary statute, the Court should also require the goverrunent to establish compliance with notice and proofequivalent to that required by the Fifth and Sixth Amendments. As thoroughly presented in Mr. Grisel' s

-14-

Opening Brief, intervening Supreme Court authority has undermined the precedential value of previous case law regarding pleading and proof of the ACCA's predicates under the standard set out in Miller. In both Shepard and Haley, the Supreme Court held that application of

Almendarez-Torres, as well as its extension, implicate the Doctrine ofConstitutional

Avoidance. Shepard, 544 U.S. at 25-26; Haley, 541 U.S. at 395-96. Because the ACCA is silent on the method ofpleading and proof, and because pleading and proof ofthe characteristics and sequence ofprior convictions implicate Almendarez-Torres, the Supreme Court requires that this Court interpret the ACCA to avoid the constitutional questions by construing the ACCA to require the same type ofpleading and proof as required by the Fifth and Sixth Amendments. This requirement is precisely what the en bane Court required in reinterpreting the federal drug statutes in United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en bane). For the same reasons, the ACCA must also be reinterpreted to avoid serious constitutional doubts. In addressing the question posed to the parties, the Court should structure its resolution in a manner that recognizes governing Supreme Court authority dictating the manner ofpleading and proofofthe predicate facts for the ACCA enhancement.

-15-

Conclusion

Forthe foregoing reasons, theCourt should consider whether Cunningham was correctly decided, determine that it was not, andholdthat the Oregon second degree hurglary statute is not a categorical match for generic burglary and that predicate ACCA facts must be pleaded and proven in a manner that meets Fifth and Sixth
Amendment requirements.
~

RESPECTFULLY SUBMITT
S

this

2h day of November, 2006.

Stephen . Sady, Attorney for AmicusCuriae

CL,,(
icusCuriae

16

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERlCA, Plaintiff-Appellee,
) ) ) ) ) ) ) ) )

CA No. 05-30585

v.
DARREL DUANE GRlSEL, Defendant-Appellant.

BRlEF FORMAT CERTIFICATION PURSUANT TO RULE 32(a)(7)(C) AND NINTH CIRCUIT RULE 32-1

Pursuant to Ninth Circuit Rule 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the Amicus Curiae Brief ofthe Federal Public Defender for the District ofOregon is proportionately spaced, has a typeface ofl4 points or more, and contains 3,619 words. DATED: November 20,2006.

Steven T. Wax Attorney for Amicus Curiae

-17-

CERTIFICATE OF SERVICE I hereby certify that on November 20, 2006, I served the foregoing AMICUS
CURIAE BRIEF OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT

OF OREGON IN SUPPORT OF DEFENDANT-APPELLANT'S SUPPLEMENTAL BRIEF as follows: Stephen F. Peifer Assistant U'S. Attorney 600 United States Courthouse 1000 S.W. Third Avenue Portland, OR 97204

Kendra M. Matthews Ransom Blackman LLP 1001 S.W. Fifth Avenue, Suite 1400 Portland, OR 97204 Attorney for Defendant-Appellant

-18-