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United States v. Jonas

United States District Court, D. Oregon

March 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CODY JOE JONAS, Defendant.

          BILLY J. WILLIAMS UNITED STATES ATTORNEY

          PAUL T. MALONEY ASSISTANT UNITED STATES ATTORNEY, ATTORNEY FOR PLAINTIFF

          SAMUEL C. KAUFFMAN KAUFFMAN KILBERG LLC ATTORNEY FOR DEFENDANT

          OPINION

          Marco A. Hernandez, United States District Judge

         Defendant Cody Joe Jonas pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). ECF 19. The parties now dispute whether one of Defendant's prior convictions qualifies as a "crime of violence" under the career offender provision of the United States Sentencing Guidelines (USSG). After briefing and oral argument, I announced from the bench that I agreed with Defendant that his prior state robbery conviction was not a crime of violence under this section of the USSG. This Opinion explains my reasoning for that conclusion.

         I. USSG

         Under USSG § 4B1.1, a defendant is a career offender if, in addition to other requirements not challenged here, the defendant has at least two prior felony convictions of a crime of violence. USSG § 4B1.1(a)(2). The Government argues that Defendant has two such prior felony convictions: (1) robbery affecting interstate commerce in violation of 18 U.S.C. § 1951; and (2) robbery in the first degree under Washington law. Wash. Rev. Code § (RCW) 9A.56.200. Defendant does not contest that the prior federal conviction is a prior crime of violence. Defendant attacks only the Washington robbery conviction.

         Under the November 2016 USSG[1], § 4B1.2 defines crime of violence, in relevant part, as:

(a) . . . . any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is . . . robbery, . . . [or] extortion[.]

USSG § 4B1.2(a).

         A prior conviction may be a crime of violence under subsection (a)(1), referred to as the "elements clause, " or sometimes as the "force clause, " or alternatively, it may qualify as a crime of violence under subsection (a)(2) by virtue of being one of several enumerated offenses. USSG §§ 4B1.2(a)(1), (2). United States v. Wicklund, No. 3:15-cr-00015-HZ, 2016 WL 6806341, at *1 (D. Or. Nov. 17, 2016) (explaining that "§ 4B1.2(a) contains two clauses - the 'elements clause, ' § 4B1.2(a)(1); and the 'enumerated offenses clause, ' § 4B1.2(a)(2).").

         II. Analytical Framework

         Courts use the "categorical approach to determine whether a state crime qualifies as a crime of violence for Guidelines purposes." United States v. Molinar, 881 F.3d 1064, 1067 (9th Cir. 2017), amended, (9th Cir. 2018). Under that approach, the court looks "only to the fact of conviction and the statutory definition of the prior offense, not to the defendant's actions underlying the conviction." Id. (internal quotation marks omitted). The court "presume[s] that the conviction rested upon nothing more than the least of the acts criminalized." Id. (internal quotation marks and brackets omitted).

         "If the language of the state statute only reaches conduct that falls into the generic federal definition, a conviction under that law is categorically a crime of violence" and the court's inquiry ends. United States v. Werle, 877 F.3d 879, 881 (9th Cir. 2017). But, "if the language of the state statute sweeps more broadly than the generic federal definition, a conviction under that statute may only qualify as a crime of violence if the statute is 'divisible[.]'" Id. "Divisible" is used to describe a statute which "lists several alternative elements, really several different crimes, as opposed to various means of committing a single crime." Id. (citing Descamps v. United States, 570 U.S. 254 (2013)).

         If the statute is divisible, the court may then rely on the "modified categorical approach" to discover which statutory elements "formed the basis of the defendant's prior conviction." Id. (internal quotation marks omitted). In that inquiry, the court may review a "limited class of extra-statutory documents such as indictments and jury instructions." Id. (brackets omitted). Once the court has "gathered the elements of the defendant's true crime of conviction, " the court returns to the categorical approach and compares the elements to the generic federal definition of a crime of violence. Id.

         III. Washington Robbery Statute

         At the time of Defendant's state conviction, which was in June 2000[2], the Washington statute for robbery in the first degree provided:

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly ...

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