United States v. Willis

• Decision Date: 29 July 2015
• Docket Number: 13–30377.,Nos. 13–30376,s. 13–30376
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sid Edward WILLIS, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sid Edward Willis, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

795 F.3d 986

UNITED STATES of America, Plaintiff–Appellee
v.
Sid Edward WILLIS, Jr., Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Sid Edward Willis, Jr., Defendant–Appellant.

Nos. 13–30376
13–30377.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2015.
Filed July 29, 2015.

795 F.3d 989

Tonia L. Moro (argued), Medford, OR, for Defendant–Appellant.

Kelly A. Zusman (argued), Appellate Chief, Assistant United States Attorney; S. Amanda Marshall, United States Attorney, Portland, OR, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. Nos. 3:12–cr–00292–BR–1, 3:02–cr–00120–BR–1.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Sid Willis, Jr. challenges his 60–month sentence for violating the conditions of his supervised release. See 18 U.S.C. § 3583(e)(3). Specifically, he argues that the district court plainly erred in calculating the Sentencing Guidelines range by determining that Willis committed a Grade A violation of his supervised release because his conduct did not constitute a felony offense that is a “crime of violence.” See U.S.S.G. § 7B1.1(a)(1). We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We hold that before a district court concludes that a defendant committed a Grade A violation of supervised release by engaging in conduct constituting a felony offense that is a crime of violence, it must take the following steps. First, it must determine by a preponderance of the evidence that the defendant's conduct constituted a federal, state, or local offense. See 18 U.S.C. § 3583(d), (e)(3). It must then use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether that offense is a categorical match to the federal generic offense of a “crime of violence.” If the federal, state, or local statute criminalizes more conduct than the federal generic offense, the court may consider whether the statute is divisible, Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283–85, 186 L.Ed.2d 438 (2013), and whether the offense the defendant committed qualifies as a crime of violence. If the defendant's conduct constitutes an offense that is a crime of violence, then the court may conclude that the defendant committed a Grade A violation of supervised release. See U.S.S.G. § 7B1.1(a)(1)(A)(i) & cmt. n. 1. Because the district court in this case did not specify which of two offenses in a divisible statute Willis's conduct constituted, and one of the two offenses may not be a crime of violence in light of the Supreme Court's recent decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), we vacate his sentence and remand for further proceedings.¹

I

Before discussing Willis's challenge to the district court's ruling, it is necessary to understand the federal framework for calculating a sentence for a violation of supervised release conditions.

A court may “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” if the court “finds by a preponderance of the evidence that the defendant violated a condition” of release. 18 U.S.C. § 3583(e)(3). A court must order, as a condition of supervised release, “that the defendant not commit another Federal, State, or local crime during the

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term of supervision.” Id. § 3583(d). “A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct.” U.S.S.G. § 7B1.1 cmt. n. 1.

When sentencing a defendant for violating a condition of supervised release, the district court “must determine the applicable advisory sentencing range under the Guidelines.” United States v. Denton, 611 F.3d 646, 651 (9th Cir.2010). “[F]ailure to calculate the correct advisory range constitutes procedural error.” Id. There are three grades of supervised release violations: A, B, and C. U.S.S.G. § 7B1.1(a). A Grade A violation is defined in part as “conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence....”² Id. § 7B1.1(a)(1)(A)(i). A “crime of violence” is defined as any state or federal felony offense 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a); see also id. § 7B1.1 cmt. n. 2 (stating that “[c]rime of violence” is defined in § 4B1.2(a) of the Guidelines). The grade of a supervised release violation “is to be based on the defendant's actual conduct,” rather than “the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding.” Id. § 7B1.1 cmt. n. 1.

A court must revoke a defendant's term of supervised release if it finds a Grade A or B violation. Id. § 7B1.3(a)(1). The Guidelines provide for a range of 51 to 63 months of imprisonment upon revocation of supervised release if the defendant (1) committed a Grade A violation, (2) was on supervised release as a result of a sentence for a Class A felony, and (3) had a criminal history category of VI. Id. § 7B1.4(a). The Guidelines provide a range of 21 to 27 months for a Grade B violation by a defendant with a criminal history category of VI. Id. Notwithstanding the Guidelines, a defendant whose term of supervised release is revoked “may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony.” 18 U.S.C. § 3583(e)(3).

II

We now turn to the facts of this case. According to the evidence introduced at a suppression hearing, Greg Morris and his girlfriend drove to the Plaid Pantry market on the night of May 24, 2012. When Morris left the store, he was approached by two men. One man, wearing a black hoodie, pulled a handgun from his side pocket and pointed it at Morris's chest. He asked Morris why he was “mugging” him (i.e., giving him a strange look), and threatened him with the gun. The armed man told Morris: “You can't be mugging me. I'll kill you. I'm a gangsta.” After threatening to kill Morris, the man demanded that Morris drive him to Southeast 102nd Street. Morris was able to get away with his girlfriend, and called 911.³

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When officers arrived on the scene, Willis attempted to escape, but he was ultimately detained. After locating Morris about a block from where Willis was detained, a police officer drove Morris closer to the area where other officers had detained Willis. Morris positively identified Willis as the man who threatened him with a gun, saying “I guarantee that's the guy.” An officer who reviewed the surveillance video footage at the Plaid Pantry testified that the video showed Willis pointing his gun at Morris, as Morris had reported.

Based on Willis's conduct at the Plaid Pantry, he was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) (case number 3:12–cr–00292). Because Willis was on federal supervised release due to a previous conviction for possession with intent to distribute five grams or more of cocaine base (case number 3:02–cr–00120), he also faced revocation of his supervised release.

In the felon-in-possession case, Willis moved to suppress all evidence against him. After holding an evidentiary hearing, the district court denied the motion. Willis then pleaded guilty to the charge of felon in possession of a firearm, and admitted that the criminal firearm conduct also constituted a violation of his federal supervised release. In the plea agreement, the government calculated that Willis's base offense level under § 4B1.4(b)(3)(A) of the Sentencing Guidelines was 34, based on the government's belief that Willis had committed a state crime of violence, “to-wit: the state crime of Unlawful Use of a Weapon, in violation of ORS 166.220.” During the plea colloquy, the district court advised Willis that the government believed that he had committed a crime of violence under state law and that he had a right to challenge the government's position at sentencing.

On December 23, 2013, the district court held a combined change of plea and sentencing hearing on the supervised release violation, as well as a sentencing hearing on the felon-in-possession conviction. The court sentenced Willis to the mandatory minimum of 180 months of imprisonment for his felon-in-possession-of-a-firearm conviction. For the supervised release violation, the district court found, by a preponderance of the evidence, that Willis had violated his supervised release by committing several state law offenses, including “the state law offense of unlawful use of a weapon.” Accordingly, the court adopted the probation office's recommendation that Willis's criminal...