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United States v. Herrera

United States District Court, D. Oregon, Eugene Division

January 3, 2019

EUGENE UNITED STATES OF AMERICA, Plaintiff,
v.
LEONIDES PATRICK HERRERA, JR., Defendant.

          OPINION AND ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.

         Leonides Patrick Herrera entered a plea before this court to felon in possession of a firearm, reserving his right to argue that he does not qualify for a fifteen year minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). At issue is whether Hererra's six prior convictions under Or. Rev. Stat. § 164.415 for Robbery in the First Degree (Robbery I) qualify as predicate offenses under the force clause of the ACCA and, if so, whether the criminal acts that gave rise to the convictions were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Because his six prior convictions for Robbery I are predicate offenses for purposes of the ACCA, and because the convictions constitute separate criminal episodes, Hererra is subject to the fifteen-year mandatory minimum sentence.

         BACKGROUND

         On February 9, 1993, Herrera entered guilty pleas in state court to six counts of Robbery I found in six separately pleaded indictments. ECF No. 31-1, Ex. 1-6. The six counts were as follows: (1) Robbery I of Lynn Morgan at the Lamplighter Motel on or about November 27, 1992; (2) Robbery I of Julie Napier at the Sunset Market on or about November 29, 1992; (3) Robbery I of Marshall Scott at a Chevron Station on or about November 27, 1992; (4) Robbery I of Bruce Read at a Plaid Pantry on or about November 29, 1992; (5) Robbery I of Kialeng Wang at the Satellite Motel on or about November 29, 1992; and (6) Robbery I of Kim Pardovick at a Best Western Motel on or about November 29, 1992. ECF No. 31-1, Ex. 1-6. Herrera acknowledged in the plea petitions that he would receive a concurrent 60-month sentence for the use or threatened use of a firearm for each count pursuant to Or. Rev. Stat. § 161.610(4)(a); i.e., Oregon's “gun minimum” statute. ECF No. 31-1, Ex. 1-6.

         On July 30, 2002, Herrera entered a guilty plea in federal court to violations of 18 U.S.C. § 922(g)(1) and the ACCA. ECF No. 31-1, Ex. 8. Herrera did not contest that his six Robbery I convictions were violent felonies under the residual clause of the ACCA. ECF No. 31-1, Ex. 8. Herrera ultimately received a 188-month sentence in October of 2002.

         In our present case, a federal grand jury returned a one-count indictment against Herrera on May 17, 2017. The indictment alleges that Herrera was in possession of a .22 caliber Beretta on September 16, 2016, and that he had the predicate Robbery I convictions to qualify him for an enhanced sentence under the ACCA. ECF No. 9. On April 18, 2018, Herrera pleaded guilty but reserved the right to argue, as he does now, that he does not qualify for an enhanced sentence under the ACCA. ECF No. 27.

         DISCUSSION

         The ACCA mandates a 15-year mandatory minimum sentence for one who possesses a firearm with, as relevant here, three prior “violent felony” convictions. 18 U.S.C. § 924(e). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]” 18 U.S.C. § 924(e)(2)(B) (emphasis added). The final clause, emphasized above, is the “residual clause, ” which Johnson v. United States (Johnson II), 135 S.Ct. 2251 (2015) held unconstitutional.

         Because robbery is not an enumerated offense, to qualify as a predicate offense Robbery I “must have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.'” United States v. Strickland, 860 F.3d 1224, 1226 (9th Cir. 2017) quoting 18 U.S.C. § 924(e)(2)(B)(i)). “Physical force” under § 924(e)(2)(B)(i) is “violent force-that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (“Johnson I”), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

         In determining whether a conviction involves violent force, courts look at the text of the statute and the state courts' interpretation of its terms. Strickland, 860 F.3d at 1226. “State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because ‘we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized.'” Id. at 1226-27 (alteration in original) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)).

         I. The Categorical Analysis

         Courts utilize a three-step “categorical approach” when determining whether a state conviction qualifies as a predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Mathis v. United States, -U.S.-, 136 S.Ct. 2243, 2248 (2016). During each step, the court must “look only to the fact of the conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. More specifically, at each step the “focus [is] solely on whether the elements of the crime of conviction sufficiently match the elements of [the generic offense or the force clause], while ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Ninth Circuit recently described this approach-where the court's ability to turn to documents such as a pre-sentence report is severely curtailed-as “counterintuitive.” See United States v. Walton, 881 F.3d 768, 771-72 (9th Cir. 2018) (“Counterintuitive though it may seem, to determine whether a defendant's conviction under a state criminal statute qualifies as a violent felony under the force clause, we do not look to the underlying facts of the defendant's actual conviction.”).

         “At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law.” Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015). Under the categorical approach, courts do not look beyond the elements of the statute of conviction and must presume that the conviction rests upon the least of the acts criminalized. Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016). If the state offense criminalizes conduct that falls outside the elements of the federal offense, the state statute is “overbroad.” Lopez-Valencia, 798 F.3d at 867-68. Unless the statute is divisible, a conviction under an overbroad statute will not qualify as a predicate offense. Ramirez, 810 F.3d at 1131.

         If the court determines the statute to be overbroad, then the analysis turns to step two, which is to determine if the statute is “divisible.” A statute is “divisible” if it “comprises multiple, alternative versions of the crime.” Descamps, 570 U.S. at 262. “The critical distinction [between indivisible and divisible statutes] is that while indivisible statutes may contain multiple, alternative means of committing the crime, only divisible statutes contain multiple, alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute's divisibility is whether a jury would have to be unanimous in finding separate elements. Ramirez, 810 F.3d at 1134. State court decisions will typically illuminate the divisibility question. United States v. Ankeny, No. 3:04-cr-00005-MO, 2017 WL 722580, at *4 (D. Or. Feb. 23, 2017) (“To determine whether the elevating conditions are separate elements as opposed to separate means, I must look to Oregon state law.”). If the overbroad statute is indivisible, it is not a predicate offense under the ACCA. Lopez-Valencia, 798 F.3d at 868.

         However, if the statute is overbroad and divisible, courts proceed to step three, the “modified categorical approach.” Id. Under the modified categorical approach, a court may look at a limited range of documents to determine what formed the basis of the defendant's conviction. Descamps, 570 U.S. at 277-78; Lopez-Valencia, 798 F.3d at 868. Courts look to those documents to ascertain whether the defendant was convicted of a set of elements qualifying as a predicate offense under the ACCA. Mathis, 136 S.Ct. at 2249; Ramirez 810 F.3d at 1131. The documents subject to review, i.e., the Shepard documents, are limited to the “terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 ...


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