United States District Court, D. Oregon, Portland Division
AMENDED OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
matter comes before the Court on Defendant's Motion to
Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255
. For the reasons set forth below, I DENY
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
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.
reasons below, I conclude that Defendant's Robbery II
conviction remains a qualifying predicate violent felony
under the ACCA.
Sentence Enhancements Under the ACCA
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”).
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). 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.
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.
Requirement of “Violent Force” Under the Force
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.
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). 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.
Determining Whether a Previous Conviction Constitutes a
Violent Felony Under the ACCA
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. ...