914 F.3d 1238 (9th Cir. 2019), 17-30096, United States v. Vederoff

Docket Nº:17-30096
Citation:914 F.3d 1238
Opinion Judge:GAITAN, District Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Lawrence VEDEROFF, Defendant-Appellant.
Attorney: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 A...
Judge Panel:Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr., District Judge
Case Date:February 01, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1238

914 F.3d 1238 (9th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Lawrence VEDEROFF, Defendant-Appellant.

No. 17-30096

United States Court of Appeals, Ninth Circuit

February 1, 2019

Argued and Submitted November 6, 2018 Seattle, Washington

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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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.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding, D.C. No. 2:16-cr-00325-RSL-1

Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr.,[*] District Judge

SUMMARY [**]

Criminal Law

The panel vacated a sentence and remanded for resentencing in a case in which the defendant pleaded guilty to being a felon in possession of a firearm.

The panel held that second-degree assault under Wash. Rev. Code § 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault because only the former encompasses assault with intent to commit a felony. Because Washington's second-degree assault statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree assault does not qualify as a "crime of violence" under the enumerated clause of U.S.S.G. § 4B1.2.

The panel held that second-degree murder under Wash. Rev. Code § 9A.32.050 (2003) is overbroad when compared to the generic definition of murder because only the former covers felony murder. Because Washington's second-degree murder statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree murder is not a "crime of violence" under the enumerated clause of § 4B1.2.

The panel held that second-degree murder under § 9A.32.050 (2003) is overbroad as compared to a generic crime of violence because the former imposes liability for negligent or even accidental felony murder. Because the Washington statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree murder is not a "crime of violence" under the force/elements clause of § 4B1.2(a)(2).

The panel held that the district court's sentencing errors were not harmless.

OPINION

GAITAN, District Judge:

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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,

Page 1243 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. §...

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