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United States v. Robinson

United States Court of Appeals, Ninth Circuit

August 25, 2017

United States of America, Plaintiff-Appellee,
Robby Lee Robinson, Defendant-Appellant.

          Argued and Submitted May 11, 2017 Seattle, Washington

         Appeal from the United States District Court No. 2:15-cr-00028-MJP-1for the Western District of Washington Marsha J. Pechman, District Judge, Presiding

          Lynn C. Hartfield (argued), Law Office of Lynn C. Hartfield LLC, Denver, Colorado, for Defendant-Appellant.

          Michael Symington Morgan (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.

          Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy Smith, Circuit Judges.


         Criminal Law

         Vacating a sentence and remanding for resentencing, the panel held that the Washington crime of second-degree assault, Wash. Rev. Code § 9A.36.021, is not a "crime of violence" within the meaning of U.S.S.G. § 2K2.1.

         The government did not dispute, and the panel agreed, that subsection 9A.36.021(1)(e) criminalizes conduct that is not covered by section 2K2.1's definition of "crime of violence." The panel held that section 9A.36.021 is indivisible, as it defines a single crime and provides seven different "means" by which a person can commit that crime. The panel concluded that the district court therefore erred in determining that the defendant's prior second-degree assault conviction was for a crime of violence under section 2K2.1.



         This case presents the question whether the Washington crime of second-degree assault, see Wash. Rev. Code § 9A.36.021, is a "crime of violence" within the meaning of section 2K2.1 of the U.S. Sentencing Guidelines. We conclude that it is not, and we vacate the defendant's sentence and remand for resentencing.

         I. Background

         During an argument with his girlfriend's mother, Robby Robinson produced a .22 caliber assault rifle from a vehicle that was parked outside the mother's house. Robinson's girlfriend and her son both called 911. Robinson fled the scene before the police arrived but left the assault rifle behind. After responding to the 911 calls, police officers searched the house and found multiple firearms, including a .22 caliber assault rifle on which Robinson's DNA was later found.

         Early the next morning, police officers found Robinson hiding in his sister's car. The officers arrested Robinson, searched the car, and found hidden under the passenger seat a backpack containing a Ruger .44 caliber magnum revolver. Later, Robinson called his girlfriend from jail, asked her to remove the revolver from the car, and made other statements that the district court stated "implied that he ha[d] given [the gun] to his sister to keep."

         Robinson was indicted on two counts of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). The first count related to the guns found at the mother's house, including the assault rifle; the second related to the revolver found in his sister's car. Robinson agreed to a bench trial, and the district court found him guilty on both counts.

         At Robinson's sentencing hearing, the district court noted that Robinson had previously pleaded guilty in Washington state court to one felony count of second-degree assault in violation of section 9A.36.021 of the Revised Code of Washington.[1] The district court ruled that this conviction was a "felony conviction of . . . a crime of violence" under section 2K2.1 of the U.S. Sentencing Guidelines (the "Guidelines"), the section that covered Robinson's conviction under § 922(g)(1). Accordingly, the district court ruled that Robinson's base offense level was twenty-two.[2] The court then applied a four-level enhancement for "[u]s[ing] or possess[ing] any firearm . . . in connection with another felony offense, " U.S.S.G. § 2K2.1(b)(6)(B), and a two-level enhancement for obstruction of justice based on, inter alia, the phone call from jail in which Robinson asked his girlfriend to hide his revolver. See U.S.S.G. § 3C1.1. The district court calculated Robinson's sentencing range to be 110-137 months and imposed a below-Guidelines sentence of ninety months' imprisonment.[3] Robinson timely appealed, challenging only the district court's ruling that his prior second-degree assault conviction was for a "crime of violence."

         II. Jurisdiction and Standard of Review

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a state-law crime constitutes a crime of violence under the Guidelines. See United States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010).

         III. Discussion

         To determine whether a defendant's prior conviction is a crime of violence under the Guidelines, we apply the categorical approach first outlined in Taylor v. United States, 495 U.S. 575 (1990), and later clarified in Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016). Under this approach, "we inquire first 'whether the elements of the crime of conviction sufficiently match the elements of the generic federal [definition of a crime of violence].'" United States v. Arriaga-Pinon, 852 F.3d 1195, 1198-99 (9th Cir. 2017) (alterations omitted) (quoting Mathis, 136 S.Ct. at 2248). Then, "[i]f the statute is overbroad and thus not a categorical match, we next ask whether the statute's elements are also an indivisible set." Id. at 1199. "Finally, if the statute is divisible, then the modified categorical approach applies and 'a sentencing court looks to a limited class of documents . . . to determine what crime, with what elements, a defendant was convicted of.'" Id. (quoting Mathis, 136 S.Ct. at 2249). If that crime falls within the generic federal definition, then the defendant's conviction qualifies as a crime of violence.

         On appeal, Robinson argues that the Washington crime of second-degree assault is not a crime of violence under the categorical approach, because section 9A.36.021 is both overbroad (i.e., it covers more conduct than the generic federal definition of a crime of violence) and indivisible.[4]The government responds that Robinson's argument is foreclosed by this Court's decision in United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), in which we held that a prior conviction for second-degree assault under subsection 9A.36.021(1)(a)-the same subsection used to convict Robinson here-was categorically a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). In the alternative, the government argues that Washington second-degree assault is a crime of violence, because section 9A.36.021 is divisible and because subsection 9A.36.021(1)(a) meets the generic federal definition.

         A. Lawrence Is ...

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