United States v. Shelby

• Decision Date: 19 September 2019
• Docket Number: No. 18-35515,18-35515
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan Lawrence SHELBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

939 F.3d 975

UNITED STATES of America, Plaintiff-Appellee,

v.Alan Lawrence SHELBY, Defendant-Appellant.

No. 18-35515

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2019 Portland, Oregon

Filed September 19, 2019

Elizabeth G. Daily (argued), Assistant Federal Public Defender; Stephen R. Sady, Chief Deputy Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; for Defendant-Appellant.

Suzanne B. Miles (argued) and Benjamin Tolkoff, Assistant United States Attorneys; Kelly A. Zusman, Appellate Chief; Billy J. Williams United States Attorney; United States Attorney's Office, Portland, Oregon; for Plaintiff-Appellee.

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit Judges, and Jennifer G. Zipps,^* District Judge.

HURWITZ, Circuit Judge:

The issue for decision is whether first-degree armed robbery in violation of Oregon Revised Statutes § 164.415 is a "violent" felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). As a matter of common understanding, appellant Alan Shelby, who has been convicted of armed robbery three times in Oregon state court, is the paradigm of an armed career criminal. But we are mandated by the Supreme Court to analyze this case not through common understanding, but rather by comparing the elements of the state crime to the requirements of the federal statute. And, faithfully applying that approach, we conclude that the Oregon convictions before us do not qualify as violent felonies under the ACCA.

I.

Shelby pleaded guilty in district court to one count of escape in violation of 18 U.S.C. § 751(a), and one count of unlawfully possessing a firearm after a felony conviction in violation 18 U.S.C. § 922(g). The ACCA mandates a 15-year minimum sentence for a person convicted under § 922(g) with "three previous convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). A violent felony is defined under the ACCA "force clause" as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The ACCA "residual clause" also defines a violent felony as a crime that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).¹

In seeking an ACCA enhancement to Shelby's § 922(g) sentence, the government offered proof of: (1) three prior convictions for Oregon first-degree robbery; (2) one prior conviction for Oregon second-degree robbery; and (3) one prior federal conviction for "Conspiracy to Manufacture, Possess With Intent to Distribute and Distribute Methamphetamine and Use Of a Firearm During a Drug Crime." The sentencing judge imposed the ACCA enhancement; Shelby received a sentence of 180 months on the felon in possession count. The sentencing judge did not indicate which clause of the ACCA he relied upon, but because ACCA requires three prior qualifying convictions, the sentence necessarily rests on the conclusion that Oregon first-degree robbery is a violent felony.

In Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the Supreme Court held the ACCA residual clause to be unconstitutionally vague, and in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016), it applied the rule in Johnson retroactively. After Welch was decided, Shelby timely filed a 28 U.S.C. § 2255 motion, challenging the ACCA enhancement because the residual clause no longer applied and asserting that the three first-degree robbery convictions did not qualify as violent felonies under the force clause.

The district court denied the motion. It started from the premise that armed robbery under Or. Rev. Stat. § 164.415(1)(a) is not categorically an ACCA violent felony, because the mere possession of a concealed weapon, not its use, can establish being "armed" under the state law. But, the court found the Oregon first-degree robbery statute divisible, and held that the "indictments show that Shelby was convicted under subsection (b) of Or. Rev. Stat. § 164.415 rather than subsection (a)." Because subsection (b) proscribes robberies in which the defendant "[u]ses or attempts to use a dangerous weapon," the court held that Shelby's prior convictions were ACCA violent felonies.

II.

A.

A felony is "violent" under the ACCA force clause if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The "physical force" must 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). The force clause "encompasses robbery offenses that require the criminal to overcome the victim's resistance." Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 550, 202 L.Ed.2d 512 (2019).

Our starting point in determining whether Shelby's convictions are violent felonies is the base Oregon robbery statute, which defines third-degree robbery as follows:

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 as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:

(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or

(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.

Or. Rev. Stat. § 164.395(1). First-degree robbery occurs "if the person violates ORS 164.395 and the person: (a) Is armed with a deadly weapon; (b) Uses or attempts to use a dangerous weapon; or (c) Causes or attempts to cause serious physical injury to any person." Or. Rev. Stat. § 164.415(1).

We held in United States v. Strickland that Oregon third-degree robbery is not a violent felony under the ACCA force clause because it "doesn't require physically violent force." 860 F.3d 1224, 1227 (9th Cir. 2017). The government first argues that Strickland is no longer good law after Stokeling .

A three-judge panel can only decline to apply prior Circuit precedent "clearly irreconcilable" with a subsequent Supreme Court decision. Close v. Sotheby's, Inc. , 894 F.3d 1061, 1072–73 (9th Cir. 2018). We recognized in Ward v. United States that "[o]ur prior distinction between ‘substantial’ and ‘minimal’ force in the ACCA robbery context" does not survive Stokeling . 936 F.3d 914, 919, 2019 WL 4148782, at *4 (9th Cir. 2019). But, in the same case, we noted that "Stokeling made clear that force involved in snatchings, where there is no resistance, is not sufficient to fall under the ACCA's force clause." Id. at 919 n.4, 2019 WL 4148782 at *4 n.4. And, we stressed that

[i]n several recent memorandum dispositions, we have also recognized instances of force that did not fall within "the scope of the elements clause as defined in Stokeling ." United States v. Lawrence , 758 F. App'x 624, 625 (9th Cir. 2019) ; see also Torres v. Whitaker , 752 F. App'x 512, 513 & n.1 (9th Cir. 2019). Thus, to whatever extent the state statutes discussed in Molinar and other ACCA robbery cases criminalize force more broadly than in Stokeling , those cases have not been overruled. See Lawrence , 758 F. App'x at 625 (reaffirming United States v. Strickland , 860 F.3d 1224 (9th Cir. 2017) ).

Id.

Applying this analysis, we conclude that Strickland and Stokeling are not clearly irreconcilable. Stokeling addressed a Florida statute defining robbery as "the taking of money or other property ... from the person or custody of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." 139 S. Ct. at 549 (alterations in original) (quoting Fla. Stat. § 812.13(1) ). Because "[t]he Florida Supreme Court has made clear that the statute required ‘resistance by the victim that is overcome by the physical force of the offender,’ " the Supreme Court held that a Florida robbery conviction qualified as a violent felony under the ACCA force clause. Id. at 554–55 (quoting Robinson v. State , 692 So. 2d 883, 886 (Fla. 1997) ). But, Stokeling emphasized that the state statute did not apply to "a defendant who merely snatches money from the victim's hand" without grabbing the victim's fingers, or one "who steals a gold chain ... simply because the victim feels his fingers on the back of her neck." Id. at 555 (cleaned up).

In contrast to the Florida crime, Oregon third-degree robbery does not even require that a victim feel "much of anything." Strickland , 860 F.3d at 1227 (quoting State v. Johnson , 215 Or.App. 1, 168 P.3d 312, 313 (2007) ). Under Oregon law, "a perpetrator could ‘prevent’ a victim's resistance by acting so swiftly that the victim does not have time to resist, i.e. , by taking the victim's property so quickly that resistance is futile." Johnson , 168 P.3d at 314 ; see Barbosa v. Barr , 926 F.3d 1053, 1059 (9th Cir. 2019) ("[I]t is clear that a conviction under section 164.395 requires only minimal physical force."). We therefore conclude that Strickland survives Stokeling .

B.

The next question is whether Oregon first-degree robbery is categorically violent under the ACCA force clause. The district court held that armed robbery in violation of Or. Rev. Stat. § 164.415(1)(a) is not a categorically violent offense. We agree. First-degree robbery occurs under § 164.415(1)(a) if the perpetrator is merely "armed with a deadly weapon." "The person committing the crime need not actually use the deadly weapon, much less make any representations about it." State v. Zimmerman , 170 Or.App. 329, 12 P.3d 996, 998 (2000). "There is a material difference between the presence of a weapon, which...