and Submitted May 11, 2017 Seattle, Washington
from the United States District Court No.
2:15-cr-00028-MJP-1for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
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
Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy
Smith, Circuit Judges.
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.
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.
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.
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
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."
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
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. 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. 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. Robinson timely
appealed, challenging only the district court's ruling
that his prior second-degree assault conviction was for a
"crime of violence."
Jurisdiction and Standard of Review
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).
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.
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.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.
Lawrence Is ...