United States v. Studhorse

883 F.3d 1198

UNITED STATES of America, Plaintiff–Appellee,

v.Keith Bennett Gordon STUDHORSE II, AKA Keith Bennett Studd, AKA Keith Bennett Studhorse, Defendant–Appellant.

No. 16-30299

United States Court of Appeals, Ninth Circuit.

Submitted February 7, 2018^* Seattle, Washington

Filed March 2, 2018

Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant–Appellant.

George J.C. Jacobs III, Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Spokane, Washington; or Plaintiff–Appellee.

Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit Judges, and EDUARDO C. ROBRENO,^** District Judge.

M. SMITH, Circuit Judge:

Defendant–Appellant Keith Bennett Studhorse, II, appeals (1) the district court's denial of his motion to dismiss Count 2 of the indictment, which charged him with possession of body armor by a violent felon, and (2) the district court's interpretation and application of the United States Sentencing Guidelines. He argues that the district court erred in denying his motion to dismiss and in calculating his sentence because it improperly determined that Studhorse's prior Washington State conviction for attempted first degree murder qualified as a "crime of violence." We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C § 3742, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2016, a two-count indictment was filed against Defendant–Appellant Keith Bennett Studhorse, II, charging him in one count with a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm), and in a second count with a violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7) (violent felon in possession of body armor). Studhorse moved to dismiss Count 2 on July 8, 2016. Studhorse argued that dismissal was required because his three relevant prior convictions under Washington state law (for attempted first degree murder, second degree manslaughter, and riot with a deadly weapon) did not constitute crimes of violence as defined in 18 U.S.C. § 16. In its response, the Government argued that attempted first degree murder and riot constituted crimes of violence; it declined to address whether second-degree manslaughter was a "crime of violence" as well.

On July 28, 2016, the district court held a hearing on Studhorse's motion. The court denied the motion on August 2, 2016, on the basis that attempted first degree murder is a "crime of violence." Studhorse then entered a plea of guilty pursuant to a conditional plea agreement that permitted him to later challenge the denial of his motion and his sentence.

A presentence investigation report (PSR) was prepared in advance of Studhorse's sentencing. The PSR relied on the district court's determination that Studhorse's prior conviction for attempted first degree murder qualified as a "crime of violence," and calculated that Studhorse's base offense level was 20, total adjusted offense level was 17, and criminal history category was IV. This resulted in an advisory guideline range of 37–46 months’ imprisonment.

At sentencing on December 7, 2016, Studhorse objected to the PSR's categorization of his prior conviction for attempted first degree murder as a "crime of violence." The Government also objected to the PSR, arguing that Studhorse's two other convictions for second-degree manslaughter and riot should be counted as crimes of violence. Studhorse disputed this, and the district court overruled the Government's objections, but affirmed its holding with regard to Studhorse's attempted first degree murder conviction. The district court adopted the PSR's sentencing calculations,¹ though it ultimately varied upward to sentence Studhorse to 84 months' incarceration. Studhorse timely appealed.

STANDARD OF REVIEW

We review de novo both the district court's denial of Studhorse's motion to dismiss Count 2 of the indictment, see United States v. Gomez–Rodriguez , 96 F.3d 1262, 1264 (9th Cir. 1996) (en banc), and its interpretation and application of the Sentencing Guidelines, e.g. , United States v. Calderon Espinosa , 569 F.3d 1005, 1007 (9th Cir. 2009).

ANALYSIS

I. Attempted First Degree Murder Under Washington Law Constitutes a "Crime of Violence" Under 18 U.S.C. § 16²

18 U.S.C. § 931(a) prohibits a person from "purchas[ing], own[ing], or possess[ing] body armor" if he or she "has been convicted of a felony that is ... a crime of violence (as defined in section 16 )." Id. In turn, 18 U.S.C. § 16 defines a "crime of violence" as

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. Thus, to be convicted under § 931, a person must have previously been convicted of at least one felony that meets § 16's "crime of violence" definition.

The felony at issue in this case is attempted first degree murder. On August 11, 1994, Studhorse pleaded guilty in Spokane County Superior Court to attempted first degree murder. In Washington, " ‘[a]ttempted murder’ is not a crime listed in the statutes. Rather, criminal attempt and murder combine to form attempted murder." State v. Mannering , 150 Wash.2d 277, 75 P.3d 961, 964 (2003) (en banc). Washington's first degree murder statute, Revised Code of Washington section 9A.32.030(1), dictates that a person commits murder in the first degree when:

(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or

(b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants ....

Id. Washington's criminal attempt statute, Revised Code of Washington section 9A.28.020(1), specifies that "[a] person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." Id. Thus, "attempted murder occurs when a person takes a substantial step in causing another[ ] person's death with the intent to cause that person's death." State v. Mannering , 112 Wash.App. 268, 48 P.3d 367, 370 (2002), aff'd , 150 Wash.2d 277, 75 P.3d 961 (2003).

To determine whether Studhorse's conviction under these statutes satisfies § 16, we first employ the familiar " ‘categorical approach’ to determine whether the state offense matches the ‘generic’ federal definition of ... a crime of violence under 18 U.S.C. § 16(a) or (b)." Ramirez v. Lynch , 810 F.3d 1127, 1130–31 (9th Cir. 2016) (quoting Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). This involves "comparing the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition." Id. at 1131 (alteration omitted) (quoting Rodriguez–Castellon v. Holder , 733 F.3d 847, 853 (9th Cir. 2013) ). In other words, we ignore the facts of the case and simply "line[ ] up [the] crime's elements alongside those of the generic offense and see[ ] if they match." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). In doing so, "we must presume that the conviction ‘rested upon nothing more than the least of the acts’ criminalized." Moncrieffe , 569 U.S. at 190–91, 133 S.Ct. 1678 (alterations omitted) (quoting Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) [hereinafter Johnson I ] ); see also United States v. Lopez–Solis , 447 F.3d 1201, 1206 (9th Cir. 2006) (holding that "even the least egregious conduct the statute covers must qualify" for there to be a categorical match). We will find a statute over-inclusive where it "criminalizes both conduct that does and conduct that does not qualify" as a "crime of violence." United States v. Werle , 815 F.3d 614, 618 (9th Cir. 2016).

We have previously determined that the near-identical language of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), imposes two requirements for a categorical match: "First, the ‘physical force’ used must be ‘violent force,’ or ‘force capable of causing physical pain or injury to another person.’ " United States v. Dixon , 805 F.3d 1193, 1197 (9th Cir. 2015) (quoting Johnson I , 559 U.S. at 140, 130 S.Ct. 1265 ). "Second, the use of force must be intentional, not just reckless or negligent." Id. ; see also Leocal v. Ashcroft , 543 U.S. 1, 9–11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (explaining that § 16 encompassed "a category of violent, active crimes" and thus required "a higher degree of intent than negligent or merely accidental conduct"). Here, Studhorse's Washington conviction for attempted first degree murder satisfies both requirements.

A. Attempted First Degree Murder Under Washington Law Requires Specific Intent³

Washington law is clear with regard to the two elements of criminal attempt: "intent to commit the base crime and a substantial step toward doing so." E.g. , State v. Johnson , 173 Wash.2d 895, 270 P.3d 591, 596 (2012) (en banc). "It is not necessary that the base crime contain the same mental state element as the crime of attempt in order to prosecute the attempt...