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United States v. Mendoza

United States District Court, D. Oregon, Eugene Division

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
EDUARDO MENDOZA, JR., Defendant/Petitioner.


          Michael J. McShane United States District Judge

         Petitioner Eduardo Mendoza, Jr. is currently serving a 180-month sentence imposed pursuant to the Armed Career Criminal Act (“ACCA”). He now moves to vacate or correct his sentence under 28 U.S.C. § 2255, arguing that, in light of the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), he no longer qualifies for the mandatory 180-month sentence under the ACCA. Because Mr. Mendoza's prior Oregon convictions for Assault in the Third Degree (“Assault III”) still qualify as violent felonies under the “force clause” of the ACCA, his motion is DENIED.


         In 2011, Mr. Mendoza pleaded guilty to, inter alia, being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g).[1] Plea Petition & Agreement 7-9, ECF 23. Generally, a violation of 18 U.S.C. § 922(g) carries with it a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). Under the ACCA, however, any person convicted of violating 18 U.S.C. § 922(g) is subject to a mandatory 180-month minimum sentence if they have three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). A prior conviction qualifies as a “violent felony” if it is punishable by a term of imprisonment exceeding one year and (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” (2) “is burglary, arson, . . . extortion, [or] involves the use of explosives, ” or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.”[2]18 U.S.C. § 924(e)(2)(B).

         In his plea agreement, Mr. Mendoza conceded that four of his prior convictions qualified as violent felonies or serious drug offenses and agreed to a 180-month ACCA sentence. Plea Petition & Agreement 2-3, 18. The agreement identified Mr. Mendoza's two Oregon convictions for Assault III, Or. Rev. Stat. § 163.165, as predicate violent felonies under the ACCA. Plea Petition & Agreement 2-3. The sentencing court accepted the plea agreement and, based in part upon its determination that Mr. Mendoza's Assault III convictions qualified as violent felonies, imposed an ACCA-enhanced sentence of 180 months. Judgement 1-2, ECF 33. The court, however, did not specify which particular statutory clause was applicable in qualifying either of Mr. Mendoza's Assault III convictions as a “violent felony.” On May 17, 2016, seizing on this ambiguity and the Supreme Court's recent narrowing of the ACCA's violent felony definition in Johnson, Mr. Mendoza moved the Court to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. After briefing and oral argument, his motion is now before the Court.


         Under 28 U.S.C. § 2255, a federal prisoner may move to have her sentence vacated or corrected if it was “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Following the Supreme Court's invalidation of the residual clause in Johnson, an ACCA-enhanced sentence is lawful only if the defendant's predicate convictions qualify as violent felonies under the remaining force or enumerated felonies clauses. See 135 S.Ct. at 2563. To determine whether a prior conviction qualifies as a predicate violent felony under either clause, courts employ the analytical approach outlined in Taylor v. United States, 495 U.S. 575 (1990), which requires that the statute of conviction be a “categorical” match with the definition contained in at least one of the two clauses. United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016). If a court concludes that the least of the acts criminalized by the state statute of conviction includes conduct falling outside of that identified in the force or enumerated felonies clauses, the statute is overbroad and the prior conviction cannot lawfully qualify as a predicate offense.[3] Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016).

         Mr. Mendoza argues that, without the residual clause, his Assault III convictions are no longer a categorical match with either of the violent felony definitions, meaning that he lacks the requisite predicates for an ACCA sentence. Since the Government concedes that assault is not an enumerated offense, the Court focuses its analysis on whether Assault III qualifies as a violent felony under the force clause. To fall within the force clause, an offense must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The physical force must be “violent force, ” or “force capable of causing physical pain or injury to another.” Johnson v. United States, 559 U.S. 133, 140 (2010). In addition, the use of force must be intentional or knowing, not just reckless or negligent. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006); cf. also United States v. Castelman, 135 S.Ct. 1405 (2014) (treating intentional and knowing interchangeably).

         In Oregon, Assault III covers a wide variety of transgressions, all involving the presence of some level of physical injury. Mr. Mendoza appears to have been charged with, and pleaded guilty to, conduct falling under Or. Rev. Stat. § 163.165(1)(e), in that he, “while being aided by another person actually present, intentionally or knowingly caus[ed] physical injury to another.” Or. Rev. Stat. § 163.165(1)(e); see also Umatilla 2004 Plea Petition 1, ECF 52-3; Umatilla 2000 Plea Petition 1, ECF 52-4. The term knowingly, “when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.” Or. Rev. Stat. § 161.085(8). Further, the phrase “physical injury” is defined as any “impairment of physical condition or substantial pain.” Id. § 161.015(7).

         Mr. Mendoza first contends that Or. Rev. Stat. § 163.165(1)(e) is not a categorical match with the force clause because conviction as a principal requires less than the knowing or intentional use of physical force.[4] Petitioner is correct that Oregon applies a “unique judicial gloss” to its “knowingly” mens rea. Under Oregon law, a knowing assault requires awareness only of the “assaultive nature” of the conduct, but no mens rea as to the resulting physical injury. State v. Barnes, 986 P.2d 1160, 1167 (Or. 1999); see also United States v. Crews, 621 F.3d 849, 855 (9th Cir. 2010) (“[T]o act knowingly in Oregon does not require knowledge that physical injury could possibly occur as a result of particular conduct, or conscious disregard of the risks associated with that conduct.”). This produces a bifurcated mens rea element, wherein a person must be aware that they are using assaultive force, but not that their conduct will, or even could, cause injury. According to Mr. Mendoza, this knowingly standard, as applied to subsection (1)(e) of the Assault III statute, defines an overall mens rea of less than recklessness.[5]

         The Ninth Circuit has considered and rejected this argument. United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), abrogated on other grounds by United States v. Robinson, 869 F.3d 933 (9th Cir. 2017). In Lawrence, the court examined whether a bifurcated mens rea element in Washington's second-degree assault statute, Wash. Rev. Code § 9A.36.021(1)(a), allowed for a conviction based on less than a knowing or intentional use of force. As in Oregon, Washington courts interpret their assault statute as having two elements: “an act (an intentional assault) and a result (reckless infliction of substantial bodily harm).” 627 F.3d at 1285 (internal citation omitted). Mr. Lawrence argued that, because a conviction only required the reckless infliction of injury, the statute criminalized less than the knowing or intentional use of force. Id. The court rejected this argument, holding that, “because Section 9A.36.021(1)(a) requires an intentional assault, it is of no matter that . . . substantial bodily harm can be inflicted only with recklessness.” Id. at 1288. The requirement of “intentional criminal assault, ” it concluded, “coupled with a requirement of substantial bodily harm, ” was sufficient to render the conviction a violent felony. Id. at 1286; accord United States v. Werle, 877 F.3d 879, 883 (9th Cir. 2017) (holding the same for knowing conduct coupled with negligent infliction of harm).

         Contrary to Mr. Mendoza's suggestion, Elonis v. United States, 135 S.Ct. 2001 (2015) does nothing to undermine Lawrence. In Elonis, the Supreme Court considered the mental state required for a conviction under 18 U.S.C. § 875(c). 135 S.Ct. at 2007. That statute, which omits an express scienter requirement, makes it a crime to “transmit[ ] . . . any communication containing a[ ] threat to . . . injure the person of another.” 18 U.S.C. § 875(c). Although the case was one of statutory interpretation and turned on the basic principle that “wrongdoing must be conscious to be criminal, ” it also shed light on the circumstances under which a bifurcated mens rea element may amount to a negligence standard. Id. at 2009. Specifically, the Court rejected prosecutors' argument that the law punishes statements which a reasonable person would regard as threatening, so long as a defendant knows that he is “transmitting a communication.” Id. at 2011. That bifurcated mens rea element, the Court explained, would amount to a negligence standard because it criminalizes conduct which a defendant need not know is wrongful. Id. at 2012. Stated differently, the Court held that a defendant who knowingly engages in a prohibited act is still only negligent if he does not “know the [wrongful] character” of that act. Id.

         Elonis is distinguishable because it arose outside of the ACCA context and, unlike Lawrence, involved a communication-based threat statute, rather than a violent assault statute. More fundamentally, however, its reasoning merely reaffirms that, to move beyond a negligence standard, a statute must require a defendant to know the nature of his conduct. That is entirely consistent with the holding in Lawrence and precisely what Or. Rev. Stat. § 163.165(1)(e) requires of defendants. Under subsection (1)(e), a defendant must know the character of his conduct-he must be “aware of [its] assaultive nature.” Barnes, 986 P.2d at 1167. That phrase is undefined, but, unlike the proposed standard in Elonis, requires more than a naked awareness that one is undertaking a specific act (e.g., sending the contents of a communication or striking someone's face); it also demands subjective knowledge that the conduct is “assaultive.” That fact alone distinguishes subsection (1)(e) from the prosecution's proposed negligence standard in Elonis. In turn, because Lawrence still dictates that a sufficient mens rea as to conduct-with less than a knowing infliction of bodily harm-satisfies the force clause, Mr. Mendoza's Assault III convictions remain predicate ACCA offenses.[6]

         In a supplemental memorandum, Mr. Mendoza argues in the alternative that Or. Rev. Stat. § 163.165(1)(e) is not a categorical match with the force clause because, at the time of his conviction, Oregon law allowed accomplice-liability convictions based on negligent conduct. In support of his argument, Mr. Mendoza cites the Ninth Circuit's recent decision in United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017). In Valdivia-Flores, the Ninth Circuit examined whether Washington's drug-trafficking statute, Wash. Rev. Code § 69.50.401, was categorically an “aggregated felony” under the Immigration and Nationality Act (“INA”). 876 F.3d at 1206. To qualify as an “aggravated felony” under the INA, a state's drug-trafficking law must sweep no broader than its federal analogue, in this instance 21 U.S.C. § 841(a)(1). Id. at 1207. In a novel application of the categorical approach, the Ninth Circuit held that, because an accomplice-liability conviction under Wash. Rev. Code § 69.50.401 was easier to obtain than such a conviction under 21 U.S.C. § 841(a)(1), the state's drug-trafficking law forbid more conduct than its federal analogue. Id. at 1207-09. The panel reasoned that aiding and abetting liability is “implicit . . . in every criminal charge.” Id. at 1207 (citation omitted). It further noted that, under the Washington law in effect at the time, accomplice liability included any act done “with the knowledge that it will promote or facilitate the commission of a crime, ...

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