United States v. Lawrence

• Decision Date: 18 September 2018
• Docket Number: No. 17-30061, No. 17-35138,17-30061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Robert LAWRENCE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kelly David Ankeny, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

905 F.3d 653

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher Robert LAWRENCE, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Kelly David Ankeny, Sr., Defendant-Appellant.

No. 17-30061

No. 17-35138

United States Court of Appeals, Ninth Circuit.

Filed September 18, 2018

Michael Donahoe (argued), Deputy Federal Public Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Helena, Montana; for Defendant-Appellant Christopher Robert Lawrence.

Susan F. Wilk, Assistant Federal Public Defender, Portland, Oregon, for Defendant-Appellant Kelly David Ankeny, Sr.

Timothy Tatarka (argued) and Jared C. Cobell, Assistant United States Attorneys; Kurt G. Alme, United States Attorney; United States Attorney’s Office, Billings, Montana; Thomas H. Edmonds (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams United States Attorney; United States Attorney’s Office, Portland, Oregon; for Plaintiff-Appellee United States.

D.C. No. 2:13-cr-00001-SEH-1, D.C. Nos. 3:16-cv-01013-MO 3:04-cr-00005-MO-1

Before: Kim McLane Wardlaw and John B. Owens, Circuit Judges, and Joan Lefkow,^* District Judge.

CERTIFICATION OF QUESTIONS OF LAW

Kim McLane Wardlaw, Circuit Judge

ORDER

The issue for decision in these consolidated cases is whether Oregon first-degree robbery ( Or. Rev. Stat. § 164.415 ) (Robbery I) and Oregon second-degree robbery (id. § 164.405) (Robbery II) are "divisible" for purposes of determining whether each is a "crime of violence" or "violent felony" under provisions of federal sentencing law.¹ Resolution of the issue is determinativeof the outcome in the pending cases before this court, and we cannot discern the answer to the question from the Oregon Supreme Court’s precedent. Accordingly, we respectfully request that the Oregon Supreme Court determine whether, under Oregon law, §§ 164.415 and 164.405 are divisible under the United States Supreme Court doctrines discussed below.

I. Factual and Procedural Background

A. Christopher Robert Lawrence

Lawrence, pursuant to a plea agreement, pleaded guilty to a charge of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court, applying United States Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(4)(A),² determined that a base offense level of 20 was appropriate because Lawrence had a prior conviction for Oregon Robbery I, which the court determined qualified as a "crime of violence" as defined by U.S.S.G. § 4B1.2(a).³ The court came to this determination by looking to § 4B1.2(a)(1) (the force clause) rather than analyzing the prior robbery conviction under § 4B1.2(a)(2) (the enumerated felonies clause). The court then adjusted the base level (for reasons not relevant here), concluding that Lawrence’s adjusted offense level was 19. With a level III criminal history category, the guidelines sentencing range was 37–46 months of imprisonment, and the district court sentenced Lawrence to 46 months in prison to be followed by three years of supervised release. This appeal followed.

The Robbery I conviction underlying the "crime of violence" finding arose from a multi-count information charging, based on a single incident, "robbery in the first degree with a firearm" ("used and threatened the use of a firearm") and acting with a codefendant to commit "robbery in the first degree" ("armed with a deadly weapon, to wit: a handgun"). For sentencing, the court merged the two convictions to robbery in the first degree with a firearm.

B. Kelly David Ankeny

Ankeny was sentenced under the Armed Career Criminal Act (ACCA)⁴ to 188 months’ imprisonment on a felon-in-possession conviction and 120 months’ imprisonment for possession of an unregistered sawed-off shotgun count, to run concurrently.

Ankeny moved to vacate his sentence after the United States Supreme Court held in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), that ACCA’s "residual clause" is unconstitutionally vague. The district court denied the motion, ruling that, even without the residual clause, Ankeny’s prior Robbery II conviction was a "violent felony" under ACCA’s "force clause."⁵ This appeal followed.

II. Governing Federal Law

To determine whether a defendant’s prior conviction is a "violent felony" under ACCA’s force clause or a "crime of violence" under the U.S.S.G.’s force clause, 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 first ask "whether the elements of the crime of conviction sufficiently match the elements of [the generic crime]." Mathis , 136 S.Ct. at 2248. In other words, we ask whether the elements of Oregon Robbery I (or II) match the elements of robbery in "the generic sense in which the term is now used in the criminal codes of most States." Taylor , 495 U.S. at 598, 110 S.Ct. 2143. In doing so, we look "only to the fact of conviction and the statutory definition of the prior offense," not to the defendant’s actions underlying the conviction. United States v. Gomez-Hernandez , 680 F.3d 1171, 1174 (9th Cir. 2012) (quoting United States v. Espinoza-Cano , 456 F.3d 1126, 1131 (9th Cir. 2006) ).

If the statute punishes a broader range of conduct than the generic offense (is "overbroad"),⁶ and is "thus not a categorical match, we next ask whether the statute’s elements are also an indivisible set," United States v. Arriaga-Pinon , 852 F.3d 1195, 1199 (9th Cir. 2017), or are divisible. "To be divisible, a state statute must contain ‘multiple, alternative elements of functionally separate crimes.’ " United States v. Dixon , 805 F.3d 1193, 1196 (9th Cir. 2015) (emphasis omitted) (quoting Rendon v. Holder , 764 F.3d 1077, 1085 (9th Cir. 2014) ). A statute is not divisible simply because it is worded in the disjunctive; rather, we "must determine whether a disjunctively worded phrase supplies ‘alternative elements,’ which are essential to a jury’s finding of guilt, or ‘alternative means,’ which are not." Id. at 1198. If a statute contains alternative elements (is divisible), a prosecutor "must generally select the relevant element from its list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt." Id. (quoting Descamps , 133 S.Ct. at 2290 ).⁷ "But if a statute contains only alternative means [ (is indivisible) ], a jury need not agree as to how the statute was violated, only that it was." Id. If " ‘a state court decision definitively answers the question,’ or if ‘the statute on its face ... resolve[s] the issue,’ " our analysis ends. United States v. Martinez-Lopez , 864 F.3d 1034, 1046 (9th Cir. 2017) (quoting Mathis , 136 S.Ct. at 2256 ).

Where the statute is indivisible, it is not possible to identify the crime of conviction, so the court cannot compare the crime of conviction to the generic offense, and the conviction cannot serve as an ACCA predicate. Descamps , 570 U.S. at 264–65, 133 S.Ct. 2276. If the statute is divisible, however, "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.’ " Arriaga-Pinon , 852 F.3d at 1199 (quoting Mathis , 136 S.Ct. at 2249 ). If that crime falls within the generic federal definition, then the defendant’s conviction qualifies as a violent felony or a crime of violence. United States v. Robinson , 869 F.3d 933, 936 (9th Cir. 2017). "State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because we "must presume that the [offense] rest[s] upon nothing more than the least of the acts criminalized" and then determine whether even those acts are encompassed by the generic federal offense. United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017) (citation omitted).

This case turns on the second step of our analysis, namely whether §§ 164.415 and 164.405 are divisible and thereby susceptible to the modified categorical approach. We are not able to discern guidance from Oregon case law sufficient to resolve the issue.

III. Parties’ Arguments

Lawrence argues that Robbery I is indivisible such that the modified categorical approach is not applicable, and, therefore, Robbery I is not a crime of violence. He relies on State v. Edwards , 251 Or.App. 18, 281 P.3d 675 (2012), as establishing that Robbery I is indivisible.⁸ At issue in Edwards was whether the trial court erred by not merging four counts of Robbery I into two counts of Robbery I for sentencing purposes. Id. at 677. The court held that, where the defendant was convicted of third-degree robbery plus alternatives (a) and (c), he committed but one crime of first-degree robbery, and the counts charging (a) and (c) separately should have been merged for sentencing.

In reaching its conclusion, the court relied on State v. White , 346 Or. 275, 211 P.3d 248, 257 (2009), which held that a defendant who committed both enhancing elements of second-degree robbery in a single incident violated a single statutory provision for purposes of Oregon’s anti-merger statute, Or. Rev. Stat. § 161.067(1). In White , the court looked at whether the state legislature intended to define a single crime of second-degree robbery—a crime with two enhancing conditions—or two separate crimes for purposes of deciding whether to merge two guilty verdicts, one for each enhancing condition, and concluded that one was intended. 211 P.3d at 253–57.

The government, for its argument that the statute is divisible, relies on State v. Boots , 308 Or. 371, 780 P.2d 725, 728–29 (1989) and State v. Pipkin , 354 Or. 513, 316 P.3d 255, 259 (2013...