United States District Court, D. Oregon
J. WILLIAMS UNITED STATES ATTORNEY
T. MALONEY ASSISTANT UNITED STATES ATTORNEY, ATTORNEY FOR
C. KAUFFMAN KAUFFMAN KILBERG LLC ATTORNEY FOR DEFENDANT
A. Hernandez, United States District Judge
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
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.
the November 2016 USSG, § 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,
(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).
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, '
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).
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" 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)).
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.
Washington Robbery Statute
time of Defendant's state conviction, which was in June
2000, 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,
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly