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United States v. Willis

United States District Court, D. Oregon

March 14, 2017


          BILLY J. WILLIAMS United States Attorney Scott M. KERIN Assistant United States Attorney Attorneys for Plaintiff.

          TONIA L. MORO Attorney for Defendant.



         This 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.


         The 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 this matter.

         On May 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. 102nd Street.

         Morris 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.

         On June 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).

         On June 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.

         On May 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.

         On July 22, 2013, Defendant pled guilty at a change-of-plea hearing to the charge in Case No. 3:12-CR-00292-BR.

         On 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.

         Defendant 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 supervised-release violation.

         On July 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), 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}.

         In 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).

         Notwithstanding 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).

         To 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 release ...

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