United States v. Vederoff

• Decision Date: 01 February 2019
• Docket Number: No. 17-30096,17-30096
• Citation: 914 F.3d 1238
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lawrence VEDEROFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

914 F.3d 1238

UNITED STATES of America, Plaintiff-Appellee,

v.Robert Lawrence VEDEROFF, Defendant-Appellant.

No. 17-30096

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2018 Seattle, Washington

Filed February 1, 2019

Alan Zarky (argued), Staff Attorney; Mohammad Ali Hamoudi, Assistant Federal Public Defender; Office of the Federal Public Defender, Seattle, Washington; for Defendant-Appellant.

Helen J. Brunner (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 and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr.,^* District Judge

GAITAN, District Judge:

Robert Vederoff appeals the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges the district court’s findings that his prior convictions for second-degree assault and second-degree murder under Washington law qualify as "crimes of violence" under section 4B1.2(a) of the United States Sentencing Guidelines ("U.S.S.G."). For the following reasons, we vacate and remand for further proceedings consistent with this Opinion.

I. BACKGROUND

Vederoff was charged with and pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).¹ As part of his written plea agreement, Vederoff acknowledged receiving each of the felony convictions listed in the indictment, including one conviction for second-degree assault and one conviction for second-degree murder, both under Washington law.

Before sentencing, the United States Probation Office issued a Presentence Report ("PSR"). The PSR set the base offense level at 24, under U.S.S.G. § 2K2.1, concluding that Vederoff’s prior convictions for second-degree assault and second-degree murder qualified as "crimes of violence." After a three-level downward adjustment for acceptance of responsibility, the PSR set Vederoff’s total offense level at 21. The PSR calculated Vederoff’s criminal history score as 13, and his criminal history category as VI. Accordingly, Vederoff’s recommended Guidelines range was 77 to 96 months. The probation officer, however, recommended a 60-month sentence, balancing mitigating and aggravating factors in Vederoff’s history.

Vederoff objected to either of these convictions counting as "crimes of violence" under U.S.S.G. § 4B1.2(a). He argued that, without the crimes of violence, the base offense level should be 14, and after adjustment for acceptance of responsibility, the Guidelines range would be 27 to 33 months.² Vederoff requested a sentence of 27 months of imprisonment, the lowest end of his proposed range. The government agreed with the PSR’s crime of violence findings and recommended a sentence of 72 months of imprisonment, five months below the low end of the Guidelines range if both convictions counted as crimes of violence.

On May 5, 2017, the district court sentenced Vederoff to 60 months in custody after concluding that both convictions were crimes of violence. In explaining its decision, the district court stated:

So on the, you know, the [ United States v. Johnson [Johnson v. United States] , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015),] issues—and we're still in a state of flux on this—it drives me absolutely nuts as a trial judge to think that things like murder and assault with a deadly weapon could be conceived as not being crimes of violence, but these are highly technical rulings from courts that predominantly don't have people who have ever been in a trial court, let alone been a trial-court lawyer or trial-court judge.

But my analysis of this is that they are both countable crimes of violence, and it is an offense level 21, Criminal History Category VI, 77 to 96 range. If [defense counsel] is correct, it would be a level 14, Criminal History Category VI, with a 37 to 46 range.

Either way, looking at the factors, I really believe the right sentence is a five-year prison term. So I'm going to impose a 60-month prison term. It’s either a departure downward from a range that’s too high or a departure upward from a range that’s too low. But the murder and the assault two are, in the Court’s opinion, countable under the analysis of being a divisible crime in the assault two, and that the ways to commit aiding and abetting felony murder have to comport with the national standard of doing something active to join in a felony that’s a serious felony, not some sort of hypothetical minor felony. It has to be during the commission of a dangerous felony or through conduct evincing reckless or depraved indifference to the serious dangers. But as I say, the range is not as important to me as what is the right sentence for this individual under these circumstances, and I think for the deterrent effect and the punishment effect, five years is correct for the prison term.^[3]

Vederoff timely appealed his sentence.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a predicate state conviction constitutes a crime of violence under the Guidelines. United States v. Robinson , 869 F.3d 933, 936 (9th Cir. 2017). We apply a harmless error analysis to Guideline calculations. United States v. Munoz-Camarena , 631 F.3d 1028, 1031 (9th Cir. 2011).

III. DISCUSSION

Under U.S.S.G. § 2K2.1, Vederoff had a base offense level of 24 if he had two or more felony convictions that qualify as a "crime of violence." U.S.S.G. § 2K2.1(a)(2). If he had one, his base offense level would be 20, and if he had none, his base offense level would be 14. U.S.S.G. § 2K2.1(a)(4), (6). "For the purposes of this guideline ... ‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." U.S.S.G. § 2K2.1 cmt. n.1. At the time of Vederoff’s offense and his sentencing, section 4B1.2(a), the career offender guideline, defined "crime of violence" as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault,....

U.S.S.G. § 4B1.2(a). The first part of this definition is the "force/elements clause," and the second is the "enumerated clause." The commentary clarified that "crime[s] of violence ... include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2 cmt. n.1.

To determine whether a prior state conviction qualifies as a crime of violence, we apply the "categorical approach." Robinson , 869 F.3d at 936 ; see also Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (first articulating the approach in the context of the Armed Career Criminal Act’s ("ACCA") "violent felony" provision). Under this approach, we define the scope of the generic federal offense at issue, and then compare its elements to the elements of the state criminal statute. United States v. Arriaga-Pinon , 852 F.3d 1195, 1198–99 (9th Cir. 2017). If the state statute is identical to or narrower than the generic federal offense, then the predicate conviction is a crime of violence. Robinson , 869 F.3d at 936. If the state statute is overbroad (i.e., criminalizes any conduct not covered by the generic offense), we must determine whether the statute is divisible (i.e., whether it has alternative elements). Arriaga-Pinon , 852 F.3d at 1199. If it is indivisible, the inquiry ends: the predicate conviction is not a crime of violence. If the state statute is divisible, then we apply the "modified categorical approach," which permits examination of the indictment, jury instructions, and/or plea agreements to determine which of the alternative elements were the basis of the conviction. Id. at 1199–1200. The state conviction is a crime of violence if those elements serving as the basis of the conviction are identical to or narrower than the elements of the generic federal offense. Throughout, "we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized" by the state statute. Moncrieffe v. Holder , 569 U.S. 184, 191–92, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (alterations in original) (citation omitted).

A. The Washington crime of second-degree assault does not qualify as a "crime of violence" under U.S.S.G. § 4B1.2.

Under Washington law,

[a] person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or

(b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or

(c) Assaults another with a deadly weapon; or

(d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or

(e) With intent to commit a felony, assaults another; or

(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or

(g) Assaults another by strangulation or suffocation.

Wash. Rev. Code § 9A.36.021(1). In Robinson , we held that second-degree assault in Washington is not a crime of violence under the force/elements clause. 869 F.3d at 937–41. However, Robinson did not decide whether it is a crime of violence under the enumerated clause.⁴ We must do so here.

For the purposes of defining federal assault, the government urges us to adopt the following definition of "aggravated assault" found in an unrelated section of the Guidelines:

a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely

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