United States v. Chavez-Echeverria

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UNITED STATES OF AMERICA, Plaintiff(s), v. JESSIE CHAVEZ-ECHEVERRIA, Defendant(s).

No. 3:23-cr-00144-HZ

United States District Court, D. Oregon

July 8, 2024

OPINION & ORDER

HERNANDEZ, DISTRICT JUDGE:

Leah K Bolstad United States Attorney's Office District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, OR 9704 Attorneys for Plaintiff Tihanne Mar-Shall Federal Public Defender Oregon 101 S.W. Main Street Suite 1700 Portland, OR 97204 Attorneys for Defendant This matter is before the Court regarding sentencing for Defendant Jessie Chavez-Echeverria.

BACKGROUND

On May 2, 2023, Defendant was indicted on one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On March 20, 2024, Defendant pled guilty to that charge. In the Presentence Report (“PSR”) it was recommended that Defendant's base offense level be increased to 26 pursuant to United States Sentencing Guideline (“USSG”) 2K2.1(a)(4)(A) because, among other things, Defendant committed the offense subsequent to sustaining two felony convictions for crimes of violence Washington felony assault III and Oregon felony attempted assault I.

On June 12, 2024, the Court held a sentencing hearing at which Defendant asserted that his conviction for attempted assault I is not a crime of violence and, therefore, should not be grounds to increase his base offense level. The Court took the issue under advisement.

DISCUSSION

I. Parties' Positions

A. Defendant

Defendant asserts in his supplement to the PSR that Oregon attempted assault I “is not a crime of violence” because “[t]he state's definition of a ‘substantial step' [under Or. Rev. Stat. § 161.405(1)^[1] does not match the federal force clause in the guidelines.” Def. Memo, ECF 32 at 4 (citing United States v. Harms, No. 3:16-cr-00028-HZ, 2017 WL 4918513, at *4 (D. Or. Oct. 31, 2017)).

Defendant notes that the Ninth Circuit recently defined “attempted use” of physical force “for purposes of a similar force clause and held that it requires ‘a substantial step toward the use of physical force.'” Id. (quoting United States v. Linehan, 56 F.4th 693, 702 (9th Cir. 2022)). Defendant concedes that the language of § 161.405(1), is similar to the definition of federal attempt set out in Linehan, but asserts that in practice Oregon's “substantial step standard . . . is meaningfully broader . . . and includes acts that would be mere preparation federally.” Def. Memo. at 4 (citing Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017). According to Defendant, because § 161.405(1) defines substantial step more broadly in practice than the generic federal definition of attempt, there is no categorial match between Oregon attempted assault I and federal generic attempt. As a result, Defendant's state “conviction for attempted assault I does not qualify as a crime of violence under the guidelines.” Id. at 5.

B. Government

The government asserts in its Sentencing Memorandum that “post-Kimbrough [Defendant's] conviction for attempted assault I qualifies as a crime of violence.” Gov't Memo., ECF 33, at 5. In its Supplemental Sentencing Memorandum the government asserts Defendant “sidetracks [the attempt analysis] by comparing Oregon's attempt statute . . . and the federal attempt statute.” Gov't. Suppl. Memo., ECF 34, at 4 (citing United States v. Door, 917 F.3d 1146 (9th Cir. 2019)). The government asserts this is the wrong categorial approach for a force clause analysis, rather the state crime need only “necessarily entail” the use, threatened use, or attempted use of force, which, according to the government, Oregon attempted assault I does.

According to the government, therefore, Defendant's attempted assault I conviction is a qualifying crime of violence under USSG § 2K2.1(a)(1).

I. USSG Crime of Violence

USSG § 2K2.1(a)(1) provides in relevant part that the Court should apply base offense level 26 when: “ (A) the offense involved a . . . semiautomatic firearm that is capable of accepting a large capacity magazine^[2] . . . and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of . . . a crime of violence.” Crime of violence in the context of § 2K2.1(a)(1) “has the meaning given that term in § 4B1.2(a)(1) and Application Note 1 of the Commentary to § 4B1.2.” USSG § 2K2.1 cmt. n.1.

USSG § 4B1.2(a) defines crime of violence as:

[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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

§ 4B1.2(a)(1) is generally referred to as the “force” or “elements” clause^[3] and § 4B1.2(a)(2) is often called the “enumerated offenses” clause. United States v. Castro, 71 F.4th 735, 738 (9th Cir. 2023). It is undisputed that attempted assault I is not one of the enumerated offenses set out in § 4B1.2(a)(2). The crime of violence analysis here, therefore, proceeds under the force clause.

II. Categorial Approach

“To determine whether a felony is a crime of violence, [the Ninth Circuit] appl[ies] the categorical approach” set out in Taylor v. United States, 495 U.S. 575, (1990). Castro, 71 F.4th at 738 (citing United States v. Prigan, 8 F.4th 1115, 1118-19 (9th Cir. 2021)).

Relying on Door the government asserts that the approach proposed by Defendant is not the correct categorial approach for a force clause analysis. In Door the court affirmed that to “determine whether a prior conviction qualifies as a crime of violence, we apply the categorical approach first outlined in Taylor,” which “requires courts to compare the elements of the statute of conviction with the federal definition of ‘crime of violence' to determine whether the statute of conviction criminalizes a broader range of conduct than the federal definition captures.” Door, 917 F.3d at 1150 (citing United States v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018)). “[T]he precise inquiry differs depending on whether the offense is alleged to qualify as a crime of violence pursuant to the force clause [or] the enumerated offenses clause.” Id. To determine whether a prior conviction qualifies under the force clause,

the question is whether the crime of conviction “has as an element the use or threatened use of physical force against the person of another, with ‘physical force' understood to mean in this context ‘violent force - that is, force capable of causing physical pain or injury to another person.'” Edling, 895 F.3d at 1156 (quoting Johnson, 559 U.S. at 140). If the crime of conviction necessarily entails the use or threatened use of violent physical force, it is considered a categorical match for a crime of violence pursuant to the force clause of § 4B1.2(a)(1), and the inquiry ends.

Id. at 1151. In contrast, a prior conviction qualifies under the enumerated offenses clause “if the elements of one of the generic federal crimes listed in that clause fully subsume the elements of the crime of conviction.” Id. (citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)). “If the crime of conviction falls within the generic federal definition - meaning it does not punish a broader range of conduct than the generic offense - the conviction qualifies as a crime of violence.” Id. (citation omitted). Because the inquiry here proceeds under the force clause the government asserts the Court need only inquire whether attempted assault I “has as an element the use or threatened use of physical force against the person of another.”

In Door, however, the defendant's prior convictions were for second degree assault and felony harassment. That case did not involve analysis of prior convictions for an attempt offense. The Ninth Circuit has made clear that courts must engage in “two related . . . analyses . . . to determine whether a prior conviction for an attempt offense qualifies as a crime of violence”: “whether the defendant's conviction establishes that he committed the elements of the generic definition of ‘attempt' and that the underlying offense he attempted meets the generic definition of that offense.” United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012)(citing United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106-07 (9th Cir. 2009); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2008))(emphasis in Gomez-Hernandez). Accordingly, in the context of an attempt offense, such as the one here, courts must not only evaluate whether the crime of conviction has as an element the use or threatened use of physical force, but they must also determine whether the defendant's conviction establishes that he committed the elements of the federal generic definition of assault. “This requires, for better or worse, that we ignore what actually occurred during the defendant's prior felony; instead, we consider only whether the prior felony's elements cover conduct that ‘sweeps more broadly than the conduct covered by § 4B1.2(a)'s crime-of-violence definitions.'” Castro, 71 F.4th at 738 (quoting Prigan, 8 F.4th 1119). If the prior felony's elements cover conduct that sweep more broadly “then the prior felony is not categorically a crime of under § 2K2.1(a).” Id.

Accordingly, the disputed question here is whether Oregon attempt under § 161.405 sweeps more broadly than the federal generic definition of attempt.

III. Authorities

A. Pre-Kimbrough Decisions

In 2017 this Court held that a conviction for Oregon attempted assault II did not qualify as a...