United States v. Door

• Decision Date: 12 March 2019
• Docket Number: No. 17-30165,17-30165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Randale DOOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

917 F.3d 1146

UNITED STATES of America, Plaintiff-Appellee,

v.Kenneth Randale DOOR, Defendant-Appellant.

No. 17-30165

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2018 Seattle, Washington

Filed March 12, 2019

Carlton Gunn (argued), Pasadena, California, for Defendant-Appellant.

Helen J. Brunner (argued), First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown and Morgan Christen, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Defendant Kenneth Randale Door appeals the sentence the district court imposed after he was convicted of several offenses in 2014. At his 2017 sentencing hearing, the district court determined that Door's base offense level should be 24 pursuant to United States Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(2) after concluding that Door's prior Washington state convictions for second-degree assault and felony harassment qualify as crimes of violence. Door contends these offenses do not constitute crimes of violence and that his offense level was thus calculated incorrectly. Consistent with United States v. Werle , 877 F.3d 879, 884 (9th Cir. 2017), we hold that Door's 1997 conviction for felony harassment, in violation of the Revised Code of Washington (Wash. Rev. Code) §§ 9A.46.020(1)(a)(i) and (2)(b), qualifies as a crime of violence. Door's argument to the contrary disregards that the framework for the "crime of violence" analysis differs depending on whether the prior offense is alleged to constitute a crime of violence pursuant to the force clause, the enumerated offenses clause, or the residual clause of U.S.S.G. § 4B1.2(a). The district court did err, however, in concluding that Door's 2002 conviction for second-degree assault, in violation of Wash. Rev. Code. § 9A.36.021(1)(c), qualifies as a crime of violence. See United States v. Robinson , 869 F.3d 933, 941 (9th Cir. 2017) ; see also United States v. Vederoff , 914 F.3d 1238, 1244–46 (9th Cir. 2019). Accordingly, we vacate Door's sentence and remand for resentencing.¹

FACTUAL AND PROCEDURAL BACKGROUND

A search of Door's home in 2011 led to the discovery of two handguns, some magazines loaded with ammunition, two military grade ballistic vests (body armor), an explosive device known as a "seal bomb," two digital scales, drug packaging materials, and two drug pipes containing methamphetamine residue. These discoveries led to Door's indictment in 2012; he was charged with being a Felon in Possession of a Firearm, a Violent Felon in Possession of Body Armor, and a Felon in Possession of an Explosive. In 2014, a jury convicted Door of each count. Door received a 300-month sentence, but for reasons not pertinent to this appeal, we vacated Door's sentence and remanded for resentencing.

On remand, the probation officer recommended a base offense level of 24 because the officer concluded that Door's prior Washington state convictions for second-degree assault and felony harassment constitute crimes of violence. See U.S.S.G. § 2K2.1(a)(2) (providing that a base offense level of 24 applies "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense"). A total offense level of 32 and Door's criminal history category of VI yielded a guideline imprisonment range of 210 to 262 months. The probation officer recommended 276 months of imprisonment due to Door's extensive criminal history. This represented the maximum sentence for each count, served consecutively. Door argued that his prior convictions for second-degree assault and felony harassment were not "crime[s] of violence" as defined in U.S.S.G. § 4B1.2, and thus his base offense level should only be 14.

At the resentencing hearing held in 2017, the district court ruled that Door's prior convictions for second-degree assault and felony harassment qualified as crimes of violence pursuant to U.S.S.G. § 4B1.2. The court concluded that Door had a total offense level of 32 and imposed a sentence of 276 months.

ANALYSIS

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 [Federal Sentencing] Guidelines." Robinson , 869 F.3d at 936.

To determine whether a prior conviction qualifies as a crime of violence, 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). The categorical approach requires courts to compare the elements of the statute of conviction with the federal definition of "crime of violence" to determine whether the statute of conviction criminalizes a broader range of conduct than the federal definition captures. United States v. Edling , 895 F.3d 1153, 1155 (9th Cir. 2018). The 2013 Sentencing Guidelines define the term "crime of violence" as follows:

[A]ny 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 [known as the force clause or the elements clause ], or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [known as the enumerated offenses clause ], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the residual clause ].

U.S.S.G. § 4B1.2(a) (2013).²

When determining whether a prior conviction constitutes a crime of violence, the precise inquiry differs depending on whether the offense is alleged to qualify as a crime of violence pursuant to the force clause, the enumerated offenses clause, or the residual clause. See, e.g. , Edling , 895 F.3d at 1156–58 (determining whether prior convictions qualified as crimes of violence pursuant to the force clause and the enumerated offenses clause); United States v. Adkins , 883 F.3d 1207, 1213–15 (9th Cir. 2018) (determining whether prior convictions qualified as crimes of violence pursuant to the residual clause). An offense constitutes a "crime of violence" if it qualifies under any one of the three clauses. See Edling , 895 F.3d at 1155. Throughout this analysis, we "presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized" by the statute of conviction. Moncrieffe v. Holder , 569 U.S. 184, 191–92, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (alterations in original) (quoting Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ).

A. Applying the Categorical Analysis to the Sentencing Guidelines' Force Clause, Enumerated Offenses Clause, and Residual Clause

To determine whether a prior conviction qualifies pursuant to the force clause, the question is whether the crime of conviction "has as an element the use or threatened use of physical force against the person of another, with ‘physical force’ understood to mean in this context ‘violent force—that is, force capable of causing physical pain or injury to another person.’ " Edling , 895 F.3d at 1156 (quoting Johnson , 559 U.S. at 140, 130 S.Ct. 1265 ). If the crime of conviction necessarily entails the use or threatened use of violent physical force, it is considered a categorical match for a crime of violence pursuant to the force clause of § 4B1.2(a)(1), and the inquiry ends. See id . ; see also Stokeling v. United States , ––– U.S. ––––, 139 S.Ct. 544, 554–55, ––– L.Ed.2d –––– (2019).

A prior offense constitutes a crime of violence pursuant to the enumerated offenses clause if the elements of one of the generic federal crimes listed in that clause fully subsume the elements of the crime of conviction. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; United States v. Peterson , 902 F.3d 1016, 1021–22 (9th Cir. 2018). A generic federal crime is defined by looking to the common law, the Model Penal Code, treatises, and the laws of other states. See Vederoff , 914 F.3d at 1245 ; United States v. Esparza-Herrera , 557 F.3d 1019, 1022–23 (9th Cir. 2009). If the crime of conviction falls within the generic federal definition—meaning it does not punish a broader range of conduct than the generic offense—the conviction qualifies as a crime of violence. See, e.g. , Mathis , 136 S.Ct. at 2248.

We use a two-part test to assess whether an offense is categorically a crime of violence pursuant to the residual clause in § 4B1.2(a)(2). Adkins , 883 F.3d at 1213. "First, the ‘conduct encompassed by the elements of the offense, in the ordinary case, must present a serious potential risk of physical injury to another.’ " Id. (quoting United States v. Park , 649 F.3d 1175, 1177–78 (9th Cir. 2011) ). "Second, the prior offense must be ‘roughly similar, in kind as well as in degree of risk posed’ " to the crimes listed in the enumerated offenses clause. Id. (quoting Park , 649 F.3d at 1178 ). To determine whether the offense is "similar in kind" to the listed crimes, we consider "whether the predicate offense involves ‘purposeful, violent, and aggressive conduct.’ " Id. (quoting Begay v. United States , 553 U.S. 137, 145, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) ). Both criteria must be satisfied for a prior offense to constitute a crime of violence pursuant to the residual clause of § 4B1.2(a)(2). Id.

If the statute of conviction does not qualify as a categorical match pursuant to the force clause, the enumerated offenses clause, or the residual clause, the court considers whether the statute of conviction's elements are divisible. See, e.g. , Edling , 895 F.3d at 1156, 1159 ; Adkins , 883 F.3d at 1215 ; Robinson , 869 F.3d at 938. A statute is divisible if it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis , 136 S.Ct. at 2249. If the statute of...