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United States v. Ankeny

United States District Court, D. Oregon, Portland Division

February 23, 2017

UNITED STATES OF AMERICA,
v.
KELLY DAVID ANKENY, SR., Defendant.

          AMENDED OPINION AND ORDER

          MICHAEL W. MOSMAN Chief United States District Judge.

         This matter comes before the Court on Defendant's Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255 [103]. For the reasons set forth below, I DENY Defendant's Motion.

         BACKGROUND

         In 2005, Defendant entered a conditional guilty plea to four counts of being a felon in possession of a firearm and one count of possession of an unregistered sawed-off shotgun. Defendant appealed his convictions, arguing that three out of the four counts of being a felon in possession of a firearm were “multiplicitous.” The Ninth Circuit agreed but also rejected Defendant's argument that his Oregon Robbery in the Second Degree (“Robbery II”) conviction was not a predicate “violent felony” under the Armed Career Criminal Act (“ACCA”). On remand, this Court modified Defendant's sentence to 188 months in prison on the remaining felon in possession of a firearm count (“Count 3”) and 120 months on the possession of an unregistered firearm count (“Count 4”).

         In light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), Defendant filed the present motion on June 6, 2016. Defendant's core argument is that his Robbery II conviction does not qualify as a violent felony under the ACCA without the application of the statute's residual clause, which was found to be unconstitutional in Johnson II. Id. at 2561. In response, the Government argues that, even without the residual clause, the Robbery II conviction constitutes a predicate violent felony because it satisfies the force clause of the ACCA (18 U.S.C. § 924(e)(2)(B)(i)). I held oral argument on the present motion on October 31, 2016.

         DISCUSSION

         For the reasons below, I conclude that Defendant's Robbery II conviction remains a qualifying predicate violent felony under the ACCA.

         I. Sentence Enhancements Under the ACCA

         18 U.S.C. § 922(g) makes it unlawful for anyone who has previously been convicted of “a crime punishable for a term exceeding one year” to possess or receive any firearm or ammunition, “which has been shipped or transported in interstate or foreign commerce.” A person who violates § 922(g) and has three qualifying prior convictions for a violent felony or serious drug offense is subject to imprisonment of not less than 15 years, regardless of the statutory maximum for the offense. § 924(e)(1). Under the statute, a violent felony is one that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

§ 924(e)(2)(B). In Johnson II, the Supreme Court held that the last portion of § 924(e)(2), commonly referred to as the residual clause, is unconstitutionally vague. 135 S.Ct. at 2557 (referring to “otherwise involves conduct that presents a serious potential risk of physical injury to another”). Thus, in order for a person to be subject to a sentence enhancement under § 924(e) based on a prior violent felony conviction, the felony must be one of those enumerated in § 924(e)(2) (“enumerated list”) or an element of the felony must include the use or threatened use of force (“force clause”).

         In this case, Defendant was convicted of being a felon in possession of a firearm (Count Three) and possession of an unregistered sawed-off shotgun (Count Four).[1] Because he had three predicate offenses, his sentence on Count Three was enhanced to a total of 188 months imprisonment. Two of the previous offenses were convictions for controlled substance charges, and they remain valid predicate offenses under § 924(e). The third offense was a conviction for Robbery II, and it is the subject of the current motion.

         Defendant argues that Robbery II does not constitute a violent felony under the statute and thus cannot serve as a valid predicate offense. The parties agree that Robbery II is not an offense included in the enumerated list. Therefore, in light of the Supreme Court's ruling in Johnson II, the only way Robbery II can qualify as a violent felony is if it contains as an element the use or threatened use of force.

         II. Requirement of “Violent Force” Under the Force Clause

         At first glance, it may appear that the Ninth Circuit has already determined that Defendant's Robbery II conviction qualifies as a violent felony under the force clause. Indeed, on the previous appeal, the Ninth Circuit found that Robbery II by statute “contains the required element of use, attempted use or threatened use of physical violence, ” and thus “constitutes a violent felony for purposes of [the] ACCA.” United States v. Ankeny, 502 F.3d 829, 840 (9th Cir. 2007). The Ninth Circuit's decision, however, came before the Supreme Court determined that the phrase “physical force” actually means “violent force, ” or “force capable of causing physical pain or injury to another person. Johnson v. United States, 130 S.Ct. 1265, 1271 (2010) (“Johnson I”). The force must also “be inflicted intentionally, as opposed to recklessly or negligently.” United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir. 2010). As such, the fact that a criminal statute contains an element of force is insufficient, by itself, to satisfy the force clause under the ACCA. Therefore, the Ninth Circuit's earlier decision in Ankeny is no longer conclusive. I must determine the level of force required to be convicted under Robbery II, and whether that level of force satisfies the requirements of the ACCA's force clause.

         The fact that an element of force, by itself, does not satisfy the force clause is further demonstrated in the recent case of United States v. Dunlap, 162 F.Supp.3d 1106 (D. Or. 2016). In Dunlap, this Court held that Robbery in the Third Degree (“Robbery III”) was overbroad and could not serve as a predicate violent felony conviction for purposes of the ACCA. Id. at 1116. In reaching this conclusion, this Court reasoned that even though Robbery III “includes the use or threatened use of physical force as an element, ” court decisions interpreting the relevant state statute prove that only “minimal force” is required. Id. at 1114-15. The decision in Dunlap is important because although a distinct crime, Robbery II incorporates and adopts the force element from Robbery III. See Or. Rev. Stat. Ann. § 164.405 (West 2016).[2] Thus, the only remaining question is whether the addition of the elevating conditions under Robbery II converts the force required under the offense to violent force, thereby qualifying Robbery II as a violent felony for purposes of the ACCA.

         III. Determining Whether a Previous Conviction Constitutes a Violent Felony Under the ACCA

         In deciding whether a previous conviction qualifies as a violent felony under the ACCA, a court engages in a process that involves up to three steps. United States v. Cisneros, 826 F.3d 1190, 1193 (9th Cir. ...


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