United States v. Jonas

UNITED STATES OF AMERICA, Plaintiff, v. CODY JOE JONAS, Defendant.

No. 3:17-cr-00050-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 23, 2018

OPINION

Billy J. Williams

UNITED STATES ATTORNEY

Paul T. Maloney

ASSISTANT UNITED STATES ATTORNEY

1000 S.W. Third Avenue, Suite 600

Portland, Oregon 97204

Attorney for Plaintiff

Samuel C. Kauffman

KAUFFMAN KILBERG LLC

1001 S.W. Fifth Avenue, Suite 1414

Portland, Oregon 97204

Attorney for Defendant

HERNANDEZ, District Judge:

Defendant Cody Joe Jonas pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). ECF 19. The parties now dispute whether one of Defendant's prior convictions qualifies as a "crime of violence" under the career offender provision of the United States Sentencing Guidelines (USSG). After briefing and oral argument, I announced from the bench that I agreed with Defendant that his prior state robbery conviction was not a crime of violence under this section of the USSG. This Opinion explains my reasoning for that conclusion.

I. USSG

Under USSG § 4B1.1, a defendant is a career offender if, in addition to other requirements not challenged here, the defendant has at least two prior felony convictions of a crime of violence. USSG § 4B1.1(a)(2). The Government argues that Defendant has two such prior felony convictions: (1) robbery affecting interstate commerce in violation of 18 U.S.C. § 1951; and (2) robbery in the first degree under Washington law. Wash. Rev. Code § (RCW) 9A.56.200. Defendant does not contest that the prior federal conviction is a prior crime of violence. Defendant attacks only the Washington robbery conviction.

Under the November 2016 USSG¹, § 4B1.2 defines crime of violence, in relevant part, as:

(a) . . . . any 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 . . . robbery, . . . [or] extortion[.]

USSG § 4B1.2(a).

A prior conviction may be a crime of violence under subsection (a)(1), referred to as the "elements clause," or sometimes as the "force clause," or alternatively, it may qualify as a crime of violence under subsection (a)(2) by virtue of being one of several enumerated offenses. USSG §§ 4B1.2(a)(1), (2). United States v. Wicklund, No. 3:15-cr-00015-HZ, 2016 WL 6806341, at *1 (D. Or. Nov. 17, 2016) (explaining that "§ 4B1.2(a) contains two clauses - the 'elements clause,' § 4B1.2(a)(1); and the 'enumerated offenses clause,' § 4B1.2(a)(2).").

II. Analytical Framework

Courts use the "categorical approach to determine whether a state crime qualifies as a crime of violence for Guidelines purposes." United States v. Molinar, 881 F.3d 1064, 1067 (9th Cir. 2017), amended, (9th Cir. 2018). Under that approach, the court looks "only to the fact of conviction and the statutory definition of the prior offense, not to the defendant's actions underlying the conviction." Id. (internal quotation marks omitted). The court "presume[s] that the conviction rested upon nothing more than the least of the acts criminalized." Id. (internal quotation marks and brackets omitted).

"If the language of the state statute only reaches conduct that falls into the generic federal definition, a conviction under that law is categorically a crime of violence" and the court's inquiry ends. United States v. Werle, 877 F.3d 879, 881 (9th Cir. 2017). But, "if the language of the state statute sweeps more broadly than the generic federal definition, a conviction under that statute may only qualify as a crime of violence if the statute is 'divisible[.]'" Id. "Divisible" is used to describe a statute which "lists several alternative elements, really several different crimes,as opposed to various means of committing a single crime." Id. (citing Descamps v. United States, 570 U.S. 254 (2013)).

If the statute is divisible, the court may then rely on the "modified categorical approach" to discover which statutory elements "formed the basis of the defendant's prior conviction." Id. (internal quotation marks omitted). In that inquiry, the court may review a "limited class of extra-statutory documents such as indictments and jury instructions." Id. (brackets omitted). Once the court has "gathered the elements of the defendant's true crime of conviction," the court returns to the categorical approach and compares the elements to the generic federal definition of a crime of violence. Id.

III. Washington Robbery Statute

At the time of Defendant's state conviction, which was in June 2000², the Washington statute for robbery in the first degree provided:

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

(a) Is armed with a deadly weapon; or

(b) Displays what appears to be a firearm or other deadly weapon; or

(c) Inflicts bodily injury.

RCW 9A.56.200 (2000).³

At the time of Defendant's conviction, the statute for robbery under Washington law provided:

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property, or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

RCW 9A.56.190.

IV. Discussion

A. The Elements Clause

Several recent decisions from the federal district courts in Washington have concluded that Washington's first-degree robbery statute is not a "violent felony" under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). E.g., Lee v. United States, No. C16-0949JLR, 2017 WL 387391, at *6 (W.D. Wash. Jan. 27, 2017) (concluding that first-degree robbery under Washington law did not qualify as an ACCA predicate felony under the elements clause because "[n]either the core definition of robbery (shared by first- and second-degreerobbery) nor the aggravating factors specific to Washington first-degree robbery match the definition of a violent felony under the ACCA's elements clause"); United States v. Navarro, No. 2:10-cr-2104-RMP, 2016 WL 1253830, at *5 (E.D. Wash. Mar. 10, 2016) (concluding that the 1998 definition of first-degree robbery in Washington was not a categorical match for the ACCA's requirement of physical force because it criminalized physical force against property); United States v. Packer, No. 2:04-cr-0263-WFN-1, 2016 WL 1253870, at *4 (E.D. Wash. Mar. 8, 2016) (prior first-degree robbery conviction under Washington law was not a violent felony under the ACCA based on any of three reasons put forth by the defendant: (1) degree of force includes de minimis, and thus, not violent, force; (2) force allowed included constructive force - fear of possible force; and (3) the statute criminalizes force against property).

These ACCA cases are relevant because the ACCA's definition of "violent felony" is identical to the definition of "crime of violence" under USSG § 4B1.2(a)(1). Compare 18 U.S.C. § 924(e)(2)(B)(i) with USSG § 4B1.2(a)(1); see Wicklund, 2016 WL 6806341, at *2 n.2 (relying on ACCA cases in analyzing "crime of violence" issue under § 4B1.2(a)(1) and noting that the ACCA analysis is "equally applicable here" because the terms "violent felony" in the ACCA and "crime of violence" in the USSG are "interpreted according to the same precedent[.]").

Lee and Navarro both explained that under Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), Washington's robbery statute does not meet the ACCA violent felony conviction under the elements clause. Lee, 2017 WL 387391, at *6-7 (under Johnson I, "physical force" as used in the ACCA definition of "violent crime" means "'force capable of causing physical pain or injury to another person'" and because physical force against a person is not a necessary element of robbery under Washington law, the statute was overbroad) (quotingJohnson I, 559 U.S. at 140) (citing Lilley v. United States, No C16-0410JLR, 2016 WL 6997037, at *17-20 (W.D. Wash. Nov. 30, 2016) (core definition of robbery does not qualify as a violent offense under the elements clause because physical force against a person is not a necessary element of that offense); Dietrick v. United States, No. C16-0705 MJP, 2016 WL 4399589, at *4 (W.D. Wash. Aug. 18, 2016) (same)); Navarro, 2016 WL 1253830, at *5 (because Johnson I requires force directed against a person, Washington robbery statute which criminalizes threats against property is overbroad).

These cases went on to conclude that the aggravating factors in the first-degree robbery statute did not save it from being overbroad. Lee, 2017 WL 387391, at *7; Navarro, 2016 WL 1253830, at *5. As Lee explained, at least one of the aggravating factors, being armed with a deadly weapon, does not require the use of violent force. Lee, 2017 WL 387391, at *7 ("'The fact that an individual is armed does not necessarily mean that he or she has used the weapon in any way'") (quoting United States v. Werle, 815 F.3d 614, 621 (9th Cir. 2016) (brackets omitted)); see also Navarro, 2016 WL 1253830, at *5 (explaining that a first-degree robbery conviction under Washington law for "unlawfully taking personal property from the person of another against his will by the use or threatened use of immediate force to that person or his property" by "display[ing] what appears to be a firearm or other deadly weapon," allows a conviction for physical force against property and is overbroad); Packer, 2016 WL 1253870, at *4 (by criminalizing force against...