United States District Court, D. Oregon
J. WILLIAMS United States Attorney Scott M. KERIN Assistant
United States Attorney Attorneys for Plaintiff.
L. MORO Attorney for Defendant.
OPINION AND ORDER
J. BROWN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on remand from the Ninth
Circuit. For the reasons that follow, the Court concludes it
does not need to conduct further sentencing proceedings and
declines to revise Defendant's existing sentence.
Court takes the underlying facts from evidence adduced at the
May 20, 2013, evidentiary hearing on Defendant Sid Edward
Willis's Motion to Suppress and from the case record in
24, 2012, Greg Morris and his girlfriend, Clarisse Smith,
drove to a Plaid Pantry market in Southeast Portland. Morris
went into the Plaid Pantry, and Smith remained in the car.
Several minutes later Smith went into the market and told
Morris that Defendant had made threatening statements to
Smith while displaying a handgun including that Willis asked
Smith why Morris was "mugging" him (i.e., giving
Defendant a "weird look"). When Morris exited the
Plaid Pantry, Defendant and another man approached Morris.
Defendant pulled a handgun from his side pocket and pointed
it at Morris's chest. Defendant asked Morris why he was
"mugging" him and stated "you can't be
mugging me. I'll kill you. I'm a gangsta."
Defendant then demanded Morris drive him to S.E.
and Smith, however, were able to get away from Defendant and
to call 911. When officers arrived, Defendant fled the Plaid
Pantry parking lot, but he was ultimately detained a short
distance away. A police officer then brought Morris to the
area where other officers had detained Defendant. Morris
positively identified Defendant as the man who threatened him
with a gun and stated: "I guarantee that's the
guy." In addition to Morris's identification of
Defendant an officer who reviewed the surveillance video
footage at the Plaid Pantry testified the video showed
Defendant pointing his gun at Morris.
5, 2012, Defendant was charged in an Indictment in Case No.
3:12-CR-00292-BR with one count of Felon in Possession of a
Firearm in violation of 18 U.S.C. § 922(g)(1).
5, 2012, Magistrate Judge John V. Acosta issued an Arrest
Warrant for Defendant based on a supervised-release violation
in a pre-existing matter, Case No. 3:02-CR-00120-BR, as a
result of the Indictment in Case No. 3:12-CR-00292-BR.
10, 2013, Defendant filed a Motion to Suppress Evidence in
Case No. 3:12-CR-00292-BR. On May 20, 2013, the Court
conducted an evidentiary hearing, heard oral argument on the
Motion to Suppress, and denied Defendant's Motion for the
reasons stated on the record.
22, 2013, Defendant pled guilty at a change-of-plea hearing
to the charge in Case No. 3:12-CR-00292-BR.
December 23, 2013, the Court held a sentencing hearing in
Case No. 3:12-CR-00292-BR and adjudicated the
supervised-release violation in this matter, Case No.
3:02-CR-00120-BR. Based on evidence adduced at the
suppression hearing, the Court found Defendant violated the
conditions of his supervised release when he committed the
state-law offense of unlawful use of a weapon in violation of
Oregon Revised Statute § 166.220(1)(a). The Court also
found Defendant's conduct constituted a "crime of
violence" pursuant to U.S.S.G. § 4B1.2 and,
therefore, that conduct qualified as a Grade A violation of
his supervised release pursuant to U.S.S.G. §
7Bl.l(a)(1). The Court sentenced Defendant to the statutory
maximum of 60 months and ordered that revocation sentence to
run consecutively to the 180-month sentence that the Court
imposed in Case No. 3:12-CR-00292-BR.
appealed the sentence for his supervised-release violation.
On appeal Defendant conceded his conduct on May 24, 2012,
constituted unlawful use of a weapon in violation of Oregon
Revised Statute § 166.220(1)(a), but he asserted
violation of that statute is not categorically a "crime
of violence" for purposes of U.S.S.G. § 7B1.1 and,
therefore, does not constitute a Grade A violation. According
to Defendant, therefore, the Court based its revocation
sentence on an erroneously calculated guideline range for his
29, 2015, the Ninth Circuit issued an Opinion on
Defendant's appeal in which it addressed as an issue of
first impression: "[H]ow to determine whether uncharged
conduct that comprises a criminal offense constitutes a crime
of violence for purposes of a supervised release
revocation." United States v. Willis, 795 F.3d
986, 992 (9th Cir. 2015). The court noted although
it has a "well-established" procedure to determine
whether a prior conviction constitutes a crime of violence
for purposes of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924, as set out in Taylor v. United
States, 495 O.S. 575 (1990), there.is a "critical
distinction" between the supervised-release context and
the ACCA context because in the ACCA context the court must
determine whether a prior conviction is a "crime of
violence." In making that determination the court must
"compare 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." Willis, 795 F.3d at 992
(quotation omitted). "The crime of conviction is
categorically a "'crime of violence' only if the
full range of conduct covered by the statute falls within the
meaning of that term." Id. (quotation omitted).
The court "may not look to the particular facts
underlying those convictions.'" Id.
(quoting Descamps, 133 S.Ct. at 2283}.
contrast, in the supervised-release context "there need
not be a prior conviction. Rather, after considering the
defendant's conduct, the court may revoke the
defendant's supervised release if the defendant's
conduct constituted ''another federal, state, or
local crime' while on supervised release,
''whether or not the defendant has been the subject
of a separate federal, state, or local prosecution for such
conduct.'" Willis, 795 at 992 (quoting
U.S.S.G. § 7B1.1 cmt. n.1)."[T]he grade of the
violation is to be based on the defendant's actual
conduct.'" Id. (quoting U.S.S.G. §
7B1.1 cmt. n.1).
this critical distinction, the court concluded the
Taylor categorical approach applies in the
supervised-release context. Id. at 992. The court
described the approach in the supervised-release context as
follows: "[T]he court must: (1) determine that the
defendant's conduct constituted a federal, state, or
local offense, and (2} determine if such an offense meets the
specified criteria. For [a Grade A violation] the applicable
criteria are that the offense is punishable by a term of
imprisonment exceeding one year and is a crime of
violence." Id. at 993 (quotations omitted).
evaluate the second part of the Taylor approach in
the supervised-release context "the court must determine
whether the applicable federal, state, or local offense (as
opposed to the defendant's conduct that constituted such
an offense) is a crime of violence" as defined in §
4Bl.2(a) of the Sentencing Guidelines. Id. The court
noted this evaluation was similar to the one performed in the
ACCA context although in the ACCA context the court
"identifies the statutory offense for which the
defendant was convicted, while in the supervised