USA v. Crews

• Decision Date: 08 September 2010
• Docket Number: No. 09-30183.,09-30183.
• Citation: 621 F.3d 849
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Uhuru Navanda CREWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

621 F.3d 849

UNITED STATES of America, Plaintiff-Appellee,

v.Uhuru Navanda CREWS, Defendant-Appellant.

No. 09-30183.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 3, 2010.

Filed July 23, 2010.

Amended Sept. 8, 2010.

Francesca Freccero, Assistant Federal Public Defender, Portland, OR, for defendant-appellant Uhuru Navanda Crews.

Stephen F. Peifer (argued), United States Attorney's Office, Portland, OR, and Kent S. Robinson, Acting United States Attorney, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, Senior District Judge, Presiding. D.C. No. 3:05-cr-00355-HA-1.

Before: RICHARD A. PAEZ, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed on July 23, 2010, and published at 612 F.3d 1131 (9th Cir.2010), is hereby amended.

On page 10624 of the slip opinion, lines 4-8: Replace deed, at oral argument, Crews was unable to provide even a hypothetical example of an individual knowingly engaging in assault by means of a deadly or dangerous weapon where that individual would have acted without the intent to cause harm.>>with>

OPINION

MILAN D. SMITH, JR., Circuit Judge:

We address whether a conviction under Oregon's second-degree assault statute, Or.Rev.Stat. § 163.175(1)(b), is a “crime of violence” under the Sentencing Guidelines' “residual clause,” U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (2008) (hereinafter U.S.S.G.). We hold that it is, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2009, Uhuru Navanda Crews pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court assigned Crews a base offense level of twenty-four, based on two prior convictions. See U.S.S.G. § 2K2.1(a)(2). Pursuant to section 2K2.1(a)(2), a defendant is assigned a base offense level of twenty-four if he has previously sustained “at least two felony convictions of either a crime of violence or a controlled substance offense.” Id.

Crews concedes that his 1998 conviction for delivery of a controlled substance under Oregon Revised Statutes section 475.840 ¹ constitutes a “controlled substance offense.” The district court also determined that Crews's 1990 conviction under Oregon's second-degree assault statute, Or.Rev.Stat. § 163.175(1)(b), is a “crime of violence” under Guidelines section 4B1.2(a). ² On appeal, Crews challenges whether second-degree assault, as defined by section 163.175(1)(b), is a “crime of violence.”

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a conviction constitutes a “crime of violence” under the Sentencing Guidelines. United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005).

DISCUSSION

Section 2K2.1 of the Guidelines defines “crime of violence” as that term is defined in the career offender Guideline, section 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Section 4B1.2, in turn, sets forth three different provisions defining the term “crime of violence.” Id. § 4B1.2(a)(1), (2) & cmt. n. 1. The provision Crews focuses on, and that which we find most germane to whether subsection (1)(b) of Oregon's second-degree assault statute constitutes a “crime of violence,” is Guidelines section 4B1.2(a)(2). ³ Section 4B1.2(a)(2) defines a “crime of violence” as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... 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)(2) (emphasis added). The italicized language is referred to as the “residual clause.”

Crews was convicted under subsection (1)(b) of Oregon's second-degree assault statute, which punishes “[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon.” Or.Rev.Stat. § 163.175(1)(b). Second-degree assault in Oregon is a “Class B” felony punishable by a maximum of ten years imprisonment. See Or.Rev.Stat. §§ 161.605, 163.175(2). Therefore, Crews's prior conviction meets the threshold requirement for a “crime of violence” since it is “punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2(a).

“We use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 [110 S.Ct. 2143, 109 L.Ed.2d 607] (1990), to determine whether a defendant's prior conviction satisfies the Guidelines definition of a crime of violence.” United States v. Esparza-Herrera, 557 F.3d 1019, 1022 (9th Cir.2009) (per curiam). Under this approach, “we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We thus compare the statutory definition of the underlying offense to the Guidelines definition of “crime of violence.” United States v. Carson, 486 F.3d 618, 619-20 (9th Cir.2007) (per curiam). Therefore, we must ask whether “[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon,” Or.Rev.Stat. § 163.175(1)(b), “otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).

The Supreme Court's recent decision in Begay v. United States sets forth a two-step approach to our inquiry. ⁴ See Begay, 553 U.S. at 141-42, 128 S.Ct. 1581; United States v. Mayer, 560 F.3d 948, 960 (9th Cir.2009) (following Begay's two-step approach). First, the state offense must involve conduct that presents a serious potential risk of injury. See

Begay, 553 U.S. at 141, 128 S.Ct. 1581 (assuming that New Mexico's DUI statute involved conduct presenting such a risk). Such a showing does not require “that every conceivable factual offense covered by a statute ... necessarily present a serious potential risk of injury.” James, 550 U.S. at 208, 127 S.Ct. 1586 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). “Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Id.

We have little trouble concluding that “[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon,” clearly presents a serious potential risk of physical injury to another. Oregon law defines both a “dangerous weapon” and a “deadly weapon” as an “instrument ... capable of causing death or serious physical injury.” Or.Rev.Stat. § 161.015(1), (2). In addition, to be convicted under the statute, the state must prove that the defendant in fact caused the victim physical injury. See State v. O'Hara, 152 Or.App. 765, 955 P.2d 313, 315 (1998). Hence, “the statute itself contemplates bodily harm to the victim as a prerequisite to conviction.” Johnson, 587 F.3d at 211.

Prior to Begay, we concluded our inquiry after addressing only step one. See, e.g., Carson, 486 F.3d at 620. However, after Begay we must make a second inquiry: whether the state offense is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses that appear at the beginning of the residual clause-burglary of a dwelling, arson, extortion, and crimes involving the use of explosives. Begay, 553 U.S. at 143, 128 S.Ct. 1581; United States v. Alderman, 601 F.3d 949, 952 (9th Cir.2010); accord United States v. Smith, 544 F.3d 781, 784 (7th Cir.2008) (noting that after Begay “a finding that the offense poses a serious risk of physical injury to another is a necessary, but not sufficient, condition” for the offense to fall within the scope of the residual clause); United States v. Roseboro, 551 F.3d 226, 233 (4th Cir.2009) (holding that Begay rejected that circuit's earlier approach under which “an offense presented a serious potential risk of physical injury to another if the offense conduct had the potential for serious physical injury to another”), abrogated on other grounds by United States v. Rivers, 595 F.3d 558 (4th Cir.2010). In order to determine whether the state offense is “roughly similar” to the enumerated offenses, we ask whether the state offense “typically involve[s] purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted); Alderman, 601 F.3d at 952-53.

Focusing on this second step of the analysis, Crews argues that a conviction under Oregon Revised Statutes section 163.175(1)(b) does not “involve purposeful, violent, and aggressive conduct.” Specifically, Crews takes issue with the “purposeful” requirement, arguing that section (1)(b) punishes “knowing” conduct, which is less culpable than “purposeful” conduct. ⁵ Crews notes that, contrary to the Model Penal Code's definition, Oregon defines “knowingly” as acting with an awareness of one's conduct, and does not require an awareness of the result of that conduct. Compare Model Penal Code § 2.02(2)(b), ⁶ with State v. Barnes, 329 Or. 327, 986 P.2d 1160, 1166-67 (1999) (holding that to sustain a conviction under subsection (1)(a) of Oregon's second-degree assault statute, “the state needs to prove only that defendant was aware of the assaultive nature of his conduct and that his conduct in fact caused the victim serious physical injury”).

In Begay, the Supreme Court addressed whether driving under the influence of alcohol is the sort of purposeful, violent, and aggressive conduct that fits within the scope of the residual clause, and held that it is not. 553 U.S. at 148, 128 S.Ct. 1581. While the Court did not specifically define “purposeful,” it explained that this type of conduct characterized crimes committed by...