United States v. Dunlap, Civ. No. 1:14-cr-00406-AA

• Decision Date: 12 February 2016
• Docket Number: Civ. No. 1:14-cr-00406-AA
• Citation: 162 F.Supp.3d 1106
• Parties: United States of America, Plaintiff, v. Carl Gene Dunlap, Defendant.
• Court: U.S. District Court — District of Oregon

162 F.Supp.3d 1106

United States of America, Plaintiff,

v.Carl Gene Dunlap, Defendant.

Civ. No. 1:14-cr-00406-AA

United States District Court, D. Oregon, Medford Division .

Signed February 12, 2016

Douglas W. Fong, United States Attorney's Office, Medford, OR, for Plaintiff.

OPINION & ORDER

AIKEN, District Judge

This matter comes before the court for determination of whether Defendant Carl Gene Dunlap should be sentenced subject to the mandatory minimum sentence required by the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

LEGAL STANDARD

I. ACCA

18 U.S.C. § 922(g) prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess or receive “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). If a person violates 18 U.S.C. § 922(g) and has three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1).

A “violent felony” is defined as:

[A]ny crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, [or] involves the use of explosives ....¹

18 U.S.C. § 924(e)(2)(B).

II. U.S.S.G. § 2K2.1

Federal firearms defendants “are subject to an enhanced Sentencing Guidelines range when they commit a firearm offense after sustaining one or more felony convictions of a crime of violence.” United States v. Park , 649 F.3d 1175, 1177 (9th Cir.2011) (internal quotation marks and citations omitted).

United States Sentencing Guidelines § 2K2.1 provides, in relevant part, that if a defendant was a prohibited person when he or she committed the instant offense and had no prior convictions for crimes of violence, his or her base offense level is 14. U.S.S.G. § 2K2.1(a)(6). If the defendant has a single prior felony conviction for a crime of violence, then the base offense level is 20. U.S.S.G. § 2K2.1(a)(4)(A). If a defendant has at least two prior felony convictions for crimes of violence, the base offense level is 24. U.S.S.G. § 2K2.1(a)(2).

For the purposes of the Guidelines, a “crime of violence” is

[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, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.

U.S.S.G. § 4B1.2(a).²

The terms “violent felony” in the ACCA, 18 U.S.C. § 924(e)(2)(B), and “crime of violence” in Guidelines§ 4B1.2, are interpreted according to the same precedent. Park , 649 F.3d at 1177.

BACKGROUND

The indictment in this case alleged that on January 13, 2014, Defendant knowingly and unlawfully possessed a handgun and that Defendant had at least three prior convictions for violent felonies. Defendant was tried before a jury and, on May 15, 2015, Defendant was convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).

Defendant has three relevant prior convictions, all originating in the Jackson County Circuit Court: a 2001 conviction for Robbery III; a 2004 conviction for Assault III; and a 2013 conviction for Coercion.³

DISCUSSION

The Government contends that each of Defendant's three convictions “has as an element the use, attempted use, or threatened use of physical force against the person of another,” and that they therefore qualify as ACCA predicate convictions. Defendant asserts that his prior convictions do not qualify as “violent felonies” under the ACCA and that he should not be subject to the ACCA's fifteen-year mandatory minimum sentence.

To determine whether a state conviction is a “violent felony” under the ACCA, courts must apply a “formal categorical approach.” Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, courts “look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. “A violation of a state statute is categorically a ‘violent felony’ under the ACCA ‘only if the [state] statute's elements are the same as, or narrower than’ those included in the ACCA's definition of ‘violent felony’ ” United States v. Dixon , 805 F.3d 1193, 1195 (9th Cir.2015) (quoting Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ).⁴ To identify the elements of a state statute, courts must consider both the language of the statute itself, as well as judicial opinions interpreting it. Id. (citing Rodriguez – Castellon v. Holder , 733 F.3d 847, 853 (9th Cir.2013) ).

If a statute is “overbroad,” meaning that it criminalizes conduct that goes beyond the elements of a violent felony, the court must determine if the statute is “divisible.” Almanza – Arenas v. Lynch , 809 F.3d 515, 521 (9th Cir.2015)(en banc). A statute is divisible if it sets out one or more elements in the alternative and some formulations of elements match the generic offense, while other formulations do not. Descamps , 133 S.Ct. at 2281. If a statute is indivisible, the court's inquiry ends because conviction under a statute that is indivisible and overbroad cannot serve as a predicate offense. Almanza – Arenas , 809 F.3d at 521.

If a statute is “divisible,” that is, it contains multiple, alternative elements of functionally separate crimes, and some of those formulations of elements constitute ACCA predicate offenses, while others do not, courts may apply a “modified categorical approach.” Descamps , 133 S.Ct. at 2281. The modified categorical approach permits the court to consider a limited range of documents such as charging instruments or plea agreements to permit the court to determine whether the defendant was convicted of an ACCA predicate offense. Dixon , 805 F.3d at 1196.

Because none of Defendant's relevant convictions are enumerated in the ACCA, they must “have as an element the use, attempted use, or threatened use of physical force against the person of another” to qualify as predicate offenses. 18 U.S.C. § 924(e)(2)(B)(i). The inclusion of “physical force” as an element of the state statute is not, standing alone, sufficient to make conviction under that statute a predicate offense. Rather, the ACCA requires that the physical force be “violent force” or “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) (“Johnson I ”). Additionally, “to qualify as defining a violent felony, a state statute must require that the physical force be inflicted intentionally, as opposed to recklessly or negligently.” United States v. Lawrence , 627 F.3d 1281, 1284 (9th Cir.2010).

In applying the categorical approach, courts must presume that a defendant's conviction rests on “the least of the acts criminalized,” although that analysis is not “an invitation to apply ‘legal imagination’ to the state offense.” Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013) (citations omitted). “[T]here must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. at 1685 (internal quotation marks and citations omitted).

Defendant also asserts that his convictions for Assault III and Coercion do not qualify as “crimes of violence” under the Guidelines. Courts apply the same analysis to determine if a prior conviction qualifies as a “crime of violence” for the purposes of U.S.S.G. § 4B1.2. See United States v. Crews , 621 F.3d 849, 856 (9th Cir.2010) (“[T]he terms ‘violent felony’ in the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and ‘crime of violence’ in Guidelines section 4B1.2, are interpreted according to the same precedent .”)(overruled on other grounds, Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (the residual clause of the ACCA is unconstitutionally vague)); Park , 649 F.3d at 1177 (“[W]e frequently look to cases interpreting the term ‘violent felony’ to determine whether a particular offense constitutes a ‘crime of violence’ under section 4B1.2(a) of the Guidelines.”).

I. Robbery III

Defendant asserts that his conviction for Robbery III does not qualify as an ACCA predicate offense because the level of physical force required for conviction can be “minimal” and does not, therefore, rise to the level of “violent force” required by the Supreme Court in Johnson I.

Under Oregon law, a person commits the crime of robbery in the third degree “if in the course of committing or attempting to commit theft or unauthorized use of a vehicle ... the person uses or threatens the immediate use of physical force upon another person ....” ORS 164.395(1).⁵ The Oregon Supreme Court has established that “[i]t is the additional factor of actual or threatened violence” that separates robbery from theft. State v. Hamilton , 348 Or. 371, 378, 233 P.3d 432 (2010) ; see also State v. White , 346 Or. 275, 290, 211 P.3d 248 (2009) (“It is the concept of fear or threat of violence that separates robbery from mere theft.”). As noted, however, the simple fact that ORS 164.395(1) includes the use or threatened use of physical force as an element does not automatically elevate a conviction for Robbery III to the level of a violent felony under the ACCA. Courts must look to state law to determine what level of “physical force” is required for conviction under the state statute and then determine whether that force rises to the level of “violent force.” Johnson I , 559 U.S. 133, 138–43, 130 S.Ct. 1265 (2010) ; United...