United States v. Robinson

• Decision Date: 25 August 2017
• Docket Number: No. 16-30096,16-30096
• Citation: 869 F.3d 933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robby Lee ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

869 F.3d 933

UNITED STATES of America, Plaintiff-Appellee,

v.Robby Lee ROBINSON, Defendant-Appellant.

No. 16-30096

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2017 Seattle, Washington

Filed August 25, 2017

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.

OPINION

BEA, Circuit Judge:

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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and later clarified in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States , –––U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (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 Not Controlling.

First, the government argues that this case is controlled by United States v. Lawrence . There, we held that a defendant's prior conviction for second-degree assault under subsection 9A.36.021(1)(a) was categorically a "violent felony" under the ACCA.⁵ See Lawrence , 627 F.3d at 1288.

We explained that because "[s]ection 9A.36.021(1)(a) ... requires not just an intentional assault, but an intentional assault that results in substantial bodily harm," and because "[t]he Washington criminal code defines ‘substantial bodily harm’ as ‘bodily injury which involves a temporary but substantial disfigurement [and similar],’ " the defendant's prior second-degree assault conviction "necessarily require[d] force that [went] beyond the ‘least touching [ ]’ and represents ‘actual force’ that is violent in nature." Id. at 1287 (citations and some internal quotation marks omitted). Thus, we held that the prior second-degree assault conviction was for a "violent felony" under the ACCA.

If Lawrence were still good law, the government would be correct that it would dispose of Robinson's case. But although Lawrence was decided after Taylor , it came before Descamps and Mathis , so we had no occasion in Lawrence to determine whether section 9A.36.021 is divisible. Moreover, as we explain below, we conclude that section 9A.36.021 is in fact indivisible. Thus, Lawrence 's conclusion that Washington second-degree assault is a violent felony under the ACCA—and, by extension, a crime of violence under the Guidelines—is "clearly irreconcilable with the reasoning or theory" of Descamps and Mathis . Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc). We therefore decline to follow it here.

B. The Washington Crime of Second-Degree Assault Is Not Categorically a Crime of Violence.

1. The Government Does Not Dispute, and We Agree with Robinson, that Section 9A.36.021 is Overbroad.

Applying the categorical approach, our first task is to determine "whether the elements of [Robinson's] crime of conviction sufficiently match the elements of the generic federal [definition of a crime of violence.]" Arriaga-Pinon , 852 F.3d at 1199 (citations and alterations omitted). Thus, we must determine whether a person can commit the Washington crime of second-degree assault through any of the seven statutory alternatives listed in section 9A.36.021(1)⁶ without committing a crime of violence within the meaning of the Guidelines.

Guidelines section 2K2.1 defines a "crime of violence," in relevant part, as "any offense ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another." See Application Note 1 to U.S.S.G. § 2K2.1 (incorporating by reference the definition of "crime of violence" given in U.S.S.G. § 4B1.2(a) ). As used in this definition, "the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting identical language used in 18 U.S.C. § 924(e)(2)(B)(i), a provision of the ACCA); see also Ladwig , 432 F.3d at 1005 n.9 ("The basic definition of ‘violent felony’ under section 924(e)(2)(B)(i) [ ] is identical to the definition of ‘crime of violence’ under U.S.S.G. § 4B1.2(1)(i) [ ]." (citations and alterations omitted)).

Subsection 9A.36.021(1)(e), the fifth of section 9A.36.021(1)'s seven subsections, provides that a person commits second-degree assault if "he or she ... [w]ith intent to commit a felony, assaults another." Robinson argues that this subsection provides a means of committing second-degree assault that does not necessarily require the actual, attempted, or threatened use of force capable of causing physical pain or injury to another.⁷ The government did not dispute Robinson's argument before the district court or on appeal,⁸ and we agree with Robinson that subsection (1)(e) criminalizes conduct that is not covered by section 2K2.1's definition of "crime of...