United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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)).
The Categorical Analysis
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
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.
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
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 ...