United States v. Eddie Strickland, Jr. , 860 F.3d 1224 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30168
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-00310-MO-1
EDDIE RAY STRICKLAND, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Argued and Submission Deferred November 4, 2015
Submitted June 26, 2017
Portland, Oregon
Filed June 26, 2017
Before: Alex Kozinski, Raymond C. Fisher
and Paul J. Watford, Circuit Judges.
Opinion by Judge Kozinski
2 UNITED STATES V. STRICKLAND
SUMMARY*
Criminal Law
Vacating a sentence and remanding, the panel held that
third degree robbery under Oregon law is not a violent felony
for purposes of the Armed Career Criminal Act because the
term “physical force” as used in the Oregon statute is not
coextensive with the term’s use in the ACCA.
COUNSEL
Kevin W. Bons (argued) and Kelly R. Beckley, Beckley &
Bons P.C., Eugene, Oregon, for Defendant-Appellant.
Amy Potter (argued), Assistant United States Attorney; Kelly
A. Zusman, Appellate Chief; Billy J. Williams, United States
Attorney; United States Attorney’s Office, Eugene, Oregon;
for Plaintiff-Appellee.
Elizabeth G. Daily, Research & Writing Attorney; Stephen R.
Sady, Chief Deputy Federal Public Defender; Office of the
Federal Public Defender, Portland, Oregon; as and for
Amicus Curiae Federal Public Defender.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. STRICKLAND 3
OPINION
KOZINSKI, Circuit Judge:
We consider whether a conviction for third degree
robbery under Oregon law is a violent felony for purposes of
the Armed Career Criminal Act (ACCA).
BACKGROUND
Defendant Eddie Ray Strickland pleaded guilty to being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and was sentenced to fifteen years in prison. This
was the mandatory minimum sentence under the ACCA. Id.
§ 924(e)(1). The district court found that the ACCA applied
because Strickland had three prior violent felony convictions.
Strickland objected to the district court’s determination that
his Oregon conviction for third degree robbery was a violent
felony and thus an ACCA predicate offense. He appeals,
arguing that he should be resentenced.
ANALYSIS
The ACCA sets a mandatory minimum sentence of fifteen
years for violations of section 922(g) when the defendant has
three prior convictions “for a violent felony or a serious drug
offense.” Id. § 924(e)(1). The statute defines a “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
4 UNITED STATES V. STRICKLAND
against the person of another [force
clause]; or
(ii) is burglary, arson, or extortion,
involves use of explosives [enumerated
felonies clause], or otherwise involves
conduct that presents a serious potential
risk of physical injury to another [residual
clause] . . . .
Id. § 924(e)(2)(B) (emphasis added). The three clauses in the
statute provide independent ways for a prior conviction to
qualify as a violent felony. The district court determined that
Strickland’s third degree robbery conviction satisfied only the
residual clause; it expressly rejected the government’s
argument based on the force clause, and robbery isn’t an
enumerated felony. After Strickland was sentenced, however,
the Supreme Court held in Johnson v. United States that the
residual clause of the ACCA was unconstitutionally vague.
135 S. Ct. 2551, 2563 (2015). Therefore, it cannot serve as
the predicate for Strickland’s sentence.
The government argues that we should nevertheless
affirm Strickland’s sentence because his third degree robbery
conviction is a predicate offense under the force clause. We
thus examine whether the state offense satisfies the force
clause’s requirements.
We use the categorical approach announced by the
Supreme Court in Taylor v. United States, 495 U.S. 575,
588–89 (1990), to determine whether a prior conviction is a
predicate offense under the ACCA. United States v. Parnell,
818 F.3d 974, 978 (9th Cir. 2016). We “compare the
elements of the statute forming the basis of the defendant’s
UNITED STATES V. STRICKLAND 5
conviction with the elements of the ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). “The prior conviction
qualifies as an ACCA predicate only if the statute’s elements
are the same as, or narrower than, those of the generic
offense.” Id.
To qualify as a predicate offense under the force clause,
the state statute 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)(i). When determining
whether the state statute has such an element, we look at both
the text of the state statute and “the state courts’
interpretations” of the statute’s terms. United States v.
Flores-Cordero, 723 F.3d 1085, 1087 (9th Cir. 2013) (citing
Johnson v. United States, 559 U.S. 133, 138 (2010)). 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.”
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)
(alteration in original) (internal quotation marks and citation
omitted).
Oregon’s third degree robbery statute provides:
A person commits the crime of robbery in the
third degree if . . . the person uses or threatens
the immediate use of physical force upon
another person with the intent of:
(a) Preventing or overcoming resistance to
the taking of the property or to retention
thereof immediately after the taking; or
6 UNITED STATES V. STRICKLAND
(b) Compelling the owner of such
property or another person to deliver the
property or to engage in other conduct
which might aid in the commission of the
theft or unauthorized use of a vehicle.
Or. Rev. Stat. § 164.395(1). The state statute requires the use
or threatened use of “physical force upon another person.”
Id. (emphasis added). The ACCA’s force clause also requires
“physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). The Supreme Court held that “physical
force” in the ACCA means “violent force—that is, force
capable of causing physical pain or injury to another person.”
Johnson, 559 U.S. at 140. Our question is whether the term
“physical force” as used in the Oregon statute is coextensive
with the term’s use in the ACCA. We hold that it is not, so
a conviction for third degree robbery under Oregon law is not
a predicate offense under the ACCA.
State cases show that Oregon doesn’t require physically
violent force. For example, in State v. Johnson, the Oregon
Court of Appeals affirmed a conviction for third degree
robbery where a thief snatched a purse from an elderly
woman’s shoulder. 168 P.3d 312, 313 (Or. Ct. App. 2007).
The woman didn’t notice the theft until after the thief had run
away; “she did not feel a tug or ‘much of anything.’” Id. The
court found that this satisfied the state statute because the
thief used physical force to snatch the purse so as to prevent
any possible resistance. Id. at 314. The court explained that
“the statute does not focus on the extent to which the victim
may or may not have felt the force, but rather on the
perpetrator’s intent, while using force on the victim, that any
resistance that the victim might offer be prevented or
overcome.” Id.; see also Pereida-Alba v. Coursey, 342 P.3d
UNITED STATES V. STRICKLAND 7
70, 76–77 (Or. 2015) (en banc) (explaining that it was
possible for a third degree robbery charge to apply to a
shoplifter who attempted to pull away from a security guard);
State v. Williams, 648 P.2d 1354, 1355, 1357 (Or. Ct. App.
1982) (finding that an attempted purse snatching satisfied the
statute when the victim and the thief had a tug-of-war over
the purse). These cases demonstrate that state courts don’t
interpret the Oregon statute as requiring the use or threatened
use of violent force. Therefore, Oregon’s third degree
robbery statute is not a categorical match to the force clause.
The government concedes that cases like Johnson and
Williams “did not involve any actual force” and thus don’t
meet the requirements of the force clause. But it argues that
a subsequent case from Oregon’s Supreme Court, State v.
Hamilton, 233 P.3d 432 (Or. 2010), clarified that the statute
does require violent force. According to the government, the
Oregon Court of Appeals cases are just “outlier decision[s] by
a lower state court” that shouldn’t control the outcome of this
case.
But Hamilton did not clarify the physical force
requirement in the third degree robbery statute; it didn’t even
consider that question. Rather, it defined who could be a
“victim” of robbery and held that charges related to multiple
victims don’t merge. Id. at 436. Hamilton doesn’t vitiate the
lower courts’ holdings that demonstrate Oregon’s third
degree robbery statute isn’t a violent felony under the ACCA.
VACATED AND REMANDED.