United States v. Christopher Lawrence , 905 F.3d 653 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30061
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00001-SEH-1
CHRISTOPHER ROBERT
LAWRENCE,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-35138
Plaintiff-Appellee,
D.C. Nos.
v. 3:16-cv-01013-MO
3:04-cr-00005-MO-1
KELLY DAVID ANKENY, SR.,
Defendant-Appellant. CERTIFICATION
OF QUESTIONS OF
LAW
Filed September 18, 2018
2 UNITED STATES V. LAWRENCE
Before: Kim McLane Wardlaw and John B. Owens,
Circuit Judges, and Joan Lefkow, * District Judge.
Order
SUMMARY **
Criminal Law/28 U.S.C. § 2255In a direct criminal appeal and an appeal from the denial
of a motion to vacate a sentence, the panel certified to the
Oregon Supreme Court the following questions:
1. Is Oregon first-degree robbery, Or. Rev.
Stat. § 164.415, divisible?
2. Is Oregon second-degree robbery, id.§ 164.405, divisible?
3. Put another way, is jury unanimity (or
concurrence) required as to a particular
theory chosen from the listed subparagraphs
of each statute?
*
The Honorable Joan H. Lefkow, United States District Judge for
the Northern District of Illinois, sitting by designation.
**
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. LAWRENCE 3
COUNSEL
Michael Donahoe (argued), Deputy Federal Public
Defender; Anthony R. Gallagher, Federal Defender; Federal
Defenders of Montana, Helena, Montana; for Defendant-
Appellant Christopher Robert Lawrence.
Susan F. Wilk, Assistant Federal Public Defender, Portland,
Oregon, for Defendant-Appellant Kelly David Ankeny, Sr.
Timothy Tatarka (argued) and Jared C. Cobell, Assistant
United States Attorneys; Kurt G. Alme, United States
Attorney; United States Attorney’s Office, Billings,
Montana; Thomas H. Edmonds (argued), Assistant United
States Attorney; Kelly A. Zusman, Appellate Chief; Billy J.
Williams United States Attorney; United States Attorney’s
Office, Portland, Oregon; for Plaintiff-Appellee United
States.
4 UNITED STATES V. LAWRENCE
ORDER
The issue for decision in these consolidated cases is
whether Oregon first-degree robbery (Or. Rev. Stat.
§ 164.415) (Robbery I) and Oregon second-degree robbery
(id. § 164.405) (Robbery II) are “divisible” for purposes of
determining whether each is a “crime of violence” or
“violent felony” under provisions of federal sentencing law. 1
Resolution of the issue is determinative of the outcome in
the pending cases before this court, and we cannot discern
the answer to the question from the Oregon Supreme Court’s
precedent. Accordingly, we respectfully request that the
1
Oregon statutes provide an incrementally graded set of standards
for determining the seriousness of different forms of robbery. Third-
degree robbery (Robbery III) occurs “if in the course of committing or
attempting to commit theft . . . [a] 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 (b) [c]ompelling 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. Rev. Stat. § 164.395(1).
A person commits Robbery I if the person commits Robbery III and
(a) is armed with a deadly weapon; (b) uses or attempts to use a
dangerous weapon; or (c) causes or attempts to cause serious physical
injury to any person. Id. § 164.415(1). A person commits Robbery II if
the person commits Robbery III and (a) represents by word or conduct
that the person is armed with what purports to be a dangerous or deadly
weapon; or (b) is aided by another person actually present. Id.
§ 164.405(1).
In United States v. Strickland, we held that Robbery III does not
require “violent force” and is therefore not a “violent felony” under the
Armed Career Criminal Act (ACCA). 860 F.3d 1224, 1227–28 (9th Cir.
2017).
UNITED STATES V. LAWRENCE 5
Oregon Supreme Court determine whether, under Oregon
law, §§ 164.415 and 164.405 are divisible under the United
States Supreme Court doctrines discussed below.
I. Factual and Procedural Background
A. Christopher Robert Lawrence
Lawrence, pursuant to a plea agreement, pleaded guilty
to a charge of being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1). The district court, applying United
States Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(4)(A), 2
determined that a base offense level of 20 was appropriate
because Lawrence had a prior conviction for Oregon
Robbery I, which the court determined qualified as a “crime
of violence” as defined by U.S.S.G. § 4B1.2(a). 3 The court
came to this determination by looking to § 4B1.2(a)(1) (the
force clause) rather than analyzing the prior robbery
conviction under § 4B1.2(a)(2) (the enumerated felonies
clause). The court then adjusted the base level (for reasons
not relevant here), concluding that Lawrence’s adjusted
offense level was 19. With a level III criminal history
2
U.S.S.G. § 2K2.1(a)(4)(A) states that the base offense level is 20
if “the defendant committed any part of the instant offense subsequent to
sustaining one felony conviction of either a crime of violence or a
controlled substance offense.”
3 U.S.S.G. § 4B1.2(a) defines a crime of violence as “any offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that—(1) has as an element the use, attempted use,
or threatened use of physical force against the person of another, [known
as the force clause or the elements clause] or (2) is murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex offense,
robbery, arson, extortion, or the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive material as defined in
18 U.S.C. § 841(c) [known as the enumerated felonies clause].”
6 UNITED STATES V. LAWRENCE
category, the guidelines sentencing range was 37–46 months
of imprisonment, and the district court sentenced Lawrence
to 46 months in prison to be followed by three years of
supervised release. This appeal followed.
The Robbery I conviction underlying the “crime of
violence” finding arose from a multi-count information
charging, based on a single incident, “robbery in the first
degree with a firearm” (“used and threatened the use of a
firearm”) and acting with a codefendant to commit “robbery
in the first degree” (“armed with a deadly weapon, to wit: a
handgun”). For sentencing, the court merged the two
convictions to robbery in the first degree with a firearm.
B. Kelly David Ankeny
Ankeny was sentenced under the Armed Career Criminal
Act (ACCA) 4 to 188 months’ imprisonment on a felon-in-
possession conviction and 120 months’ imprisonment for
possession of an unregistered sawed-off shotgun count, to
run concurrently.
Ankeny moved to vacate his sentence after the United
States Supreme Court held in Johnson v. United States,
135 S. Ct. 2551, 2563 (2015), that ACCA’s “residual clause”
is unconstitutionally vague. The district court denied the
motion, ruling that, even without the residual clause,
4
18 U.S.C. § 924(e) provides: “In the case of a person who violates
section 922(g) of this title and has three previous convictions by any
court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen years.”
UNITED STATES V. LAWRENCE 7
Ankeny’s prior Robbery II conviction was a “violent felony”
under ACCA’s “force clause.” 5 This appeal followed.
II. Governing Federal Law
To determine whether a defendant’s prior conviction is a
“violent felony” under ACCA’s force clause or a “crime of
violence” under the U.S.S.G.’s force clause, we apply the
“categorical approach” first outlined in Taylor v. United
States, 495 U.S. 575 (1990), and later clarified in Descamps
v. United States, 570 U.S. 254 (2013), and Mathis v. United
States, 136 S. Ct. 2243 (2016). Under this approach, we first
ask “whether the elements of the crime of conviction
sufficiently match the elements of [the generic crime].”
Mathis, 136 S. Ct. at 2248. In other words, we ask whether
the elements of Oregon Robbery I (or II) match the elements
of robbery in “the generic sense in which the term is now
used in the criminal codes of most States.” Taylor, 495 U.S.
at 598. In doing so, we look “only to the fact of conviction
and the statutory definition of the prior offense,” not to the
defendant’s actions underlying the conviction. United States
v. Gomez-Hernandez, 680 F.3d 1171, 1174 (9th Cir. 2012)
5
ACCA defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such
term if committed by an adult, that—(i) has as an element the use,
attempted use, or threatened use of physical force against the person of
another [known as the force clause or the elements clause]; or (ii) is
burglary, arson, or extortion, involves use of explosives [known as the
enumerated felonies clause], or otherwise involves conduct that presents
a serious potential risk of physical injury to another [known as the
residual clause].” 18 U.S.C. § 924(e)(2)(B).
8 UNITED STATES V. LAWRENCE
(quoting United States v. Espinoza-Cano, 456 F.3d 1126,
1131 (9th Cir. 2006)).
If the statute punishes a broader range of conduct than
the generic offense (is “overbroad”), 6 and is “thus not a
categorical match, we next ask whether the statute’s
elements are also an indivisible set,” United States v.
Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017), or are
divisible. “To be divisible, a state statute must contain
‘multiple, alternative elements of functionally separate
crimes.’” United States v. Dixon, 805 F.3d 1193, 1196 (9th
Cir. 2015) (emphasis omitted) (quoting Rendon v. Holder,
764 F.3d 1077, 1085 (9th Cir. 2014)). A statute is not
divisible simply because it is worded in the disjunctive;
rather, we “must determine whether a disjunctively worded
phrase supplies ‘alternative elements,’ which are essential to
a jury’s finding of guilt, or ‘alternative means,’ which are
not.” Id. at 1198. If a statute contains alternative elements (is
divisible), a prosecutor “must generally select the relevant
element from its list of alternatives. And the jury, as
instructions in the case will make clear, must then find that
element, unanimously and beyond a reasonable doubt.” Id.(quoting Descamps, 133 S. Ct. at 2290). 7 “But if a statute
6
For purposes of this analysis, we assume that Oregon’s Robbery I
statute criminalizes conduct that is broader than that covered by the force
clause, making the statute overbroad.
7
In Descamps, for example, where California burglary included
entry into a building or an automobile, the Court explained, “In a typical
case brought under the statute, the prosecutor charges one of those two
alternatives, and the judge instructs the jury accordingly.” 570 U.S. at
261–62. In contrast, in United States v. Cisneros, 826 F.3d 1190, 1195
(9th Cir. 2016), we held that the Oregon burglary statute is indivisible in
reference to the element of unlawful entry into a “building” because
“[t]he text of the statute does not suggest that a trier of fact must specify
which alternative applies for any given conviction.”
UNITED STATES V. LAWRENCE 9
contains only alternative means [(is indivisible)], a jury need
not agree as to how the statute was violated, only that it was.”
Id. If “‘a state court decision definitively answers the
question,’ or if ‘the statute on its face . . . resolve[s] the
issue,’” our analysis ends. United States v. Martinez-Lopez,
864 F.3d 1034, 1046 (9th Cir. 2017) (quoting Mathis, 136 S.
Ct. at 2256).
Where the statute is indivisible, it is not possible to
identify the crime of conviction, so the court cannot compare
the crime of conviction to the generic offense, and the
conviction cannot serve as an ACCA predicate. Descamps,
570 U.S. at 264–65. If the statute is divisible, however, “then
the modified categorical approach applies and ‘a sentencing
court looks to a limited class of documents . . . to determine
what crime, with what elements, a defendant was convicted
of.’” Arriaga-Pinon, 852 F.3d at 1199 (quoting Mathis,
136 S. Ct. at 2249). If that crime falls within the generic
federal definition, then the defendant’s conviction qualifies
as a violent felony or a crime of violence. United States v.
Robinson, 869 F.3d 933, 936 (9th Cir. 2017). “State cases
that examine the outer contours of the conduct criminalized
by the state statute are particularly important because we
“must presume that the [offense] rest[s] upon nothing more
than the least of the acts criminalized” and then determine
whether even those acts are encompassed by the generic
federal offense. United States v. Strickland, 860 F.3d 1224,
1226–27 (9th Cir. 2017) (citation omitted).
This case turns on the second step of our analysis,
namely whether §§ 164.415 and 164.405 are divisible and
thereby susceptible to the modified categorical approach.
We are not able to discern guidance from Oregon case law
sufficient to resolve the issue.
10 UNITED STATES V. LAWRENCE
III. Parties’ Arguments
Lawrence argues that Robbery I is indivisible such that
the modified categorical approach is not applicable, and,
therefore, Robbery I is not a crime of violence. He relies on
State v. Edwards, 281 P.3d 675 (Or. Ct. App. 2012), as
establishing that Robbery I is indivisible. 8 At issue in
Edwards was whether the trial court erred by not merging
four counts of Robbery I into two counts of Robbery I for
sentencing purposes. Id. at 677. The court held that, where
the defendant was convicted of third-degree robbery plus
alternatives (a) and (c), he committed but one crime of first-
degree robbery, and the counts charging (a) and (c)
separately should have been merged for sentencing.
In reaching its conclusion, the court relied on State v.
White, 211 P.3d 248, 257 (Or. 2009), which held that a
defendant who committed both enhancing elements of
second-degree robbery in a single incident violated a single
statutory provision for purposes of Oregon’s anti-merger
statute, Or. Rev. Stat. § 161.067(1). In White, the court
looked at whether the state legislature intended to define a
single crime of second-degree robbery—a crime with two
enhancing conditions—or two separate crimes for purposes
of deciding whether to merge two guilty verdicts, one for
each enhancing condition, and concluded that one was
intended. 211 P.3d at 253–57.
The government, for its argument that the statute is
divisible, relies on State v. Boots, 780 P.2d 725, 728–29 (Or.
1989) and State v. Pipkin, 316 P.3d 255, 259 (Or. 2013).
8
Unlike the parties in Lawrence, the parties in Ankeny concede that
Robbery II is divisible. The Ankeny parties offer no substantive
discussion of whether Robbery II is divisible.
UNITED STATES V. LAWRENCE 11
Boots held that an instruction that did not require the jury to
unanimously agree on one of two alternative elements (or
both) of aggravated murder was contrary to the unanimous
verdict requirement of Oregon law. See 780 P.2d at 728–29.
Pipkin interpreted Boots as holding that “each aggravating
circumstance is a separate element and, as such, requires jury
unanimity.” 316 P.3d at 259. As such, the government
argues Oregon law is clear that Robbery I is divisible
because the jury must be unanimous in finding that the
defendant committed a specific aggravating element of the
statute (or more than one). The government reinforces its
argument with Oregon’s Uniform Criminal Jury Instructions
for robbery, noting that while the instructions contain an
intent element (element 4) that is formulated in the
disjunctive (intent of preventing/overcoming resistance or
compelling to deliver), the aggravating element (element 5),
contains no such disjunctive. From this, the government
concludes that a jury must find the chosen aggravating
element unanimously and beyond a reasonable doubt, and
thus Robbery I is divisible.
In our view, White leaves ambiguous the question of
whether the robbery statute is divisible or indivisible. White
first refers to the enhancing conditions of Robbery II as
separate “elements” but later determines that the two
elevating conditions constitute “a single crime.” 211 P.3d at
254, 257. Edwards, White, Boots, and Oregon’s Uniform
Criminal Jury Instructions for robbery seemingly stand in
conflict when considering whether Robbery I and Robbery
II are divisible. Without further guidance, we cannot say
with confidence that Oregon precedent definitively answers
the question whether Robbery I and II are divisible. See also
State v. Martinez, Jr., 348 P.3d 285, 289 n.4 (Or. Ct. App.
2015) (acknowledging “some tension in the [Oregon]
12 UNITED STATES V. LAWRENCE
Supreme Court’s case law” as set out in Boots, Pipkin, and
State v. Barrett, 10 P.3d 901 (Or. 2000)).
IV. Certified Questions and Further Proceedings
When engaging in a divisibility inquiry, we look to
authoritative sources such as state court decisions and the
wording of the relevant state statute. See Mathis, 136 S. Ct.
at 2256. With these principles in mind, we respectfully
certify the following questions to the Oregon Supreme
Court:
1. Is Oregon first-degree robbery, Or. Rev.
Stat. § 164.415, divisible?
2. Is Oregon second-degree robbery, id.§ 164.405, divisible?
3. Put another way, is jury unanimity (or
concurrence) required as to a particular
theory chosen from the listed
subparagraphs of each statute?
We respectfully ask the Oregon Supreme Court to exercise
its discretionary authority under Oregon’s Uniform
Certification of Questions of Law Act to accept and decide
these questions. See Or. Rev. Stat. §§ 28.200–28.255. “Our
phrasing of the questions should not restrict the Court’s
consideration of the issues involved. We acknowledge that
the Court may reformulate the relevant state law questions
as it perceives them to be, in light of the contentions of the
parties,” Raynor v. United of Omaha Life Ins. Co., 858 F.3d
1268, 1273 (9th Cir. 2017), and “[w]e agree to abide by the
decision of the Oregon Supreme Court,” Doyle v. City of
Medford, 565 F.3d 536, 544 (9th Cir. 2009). If the court
determines that the questions presented in this case are
UNITED STATES V. LAWRENCE 13
inappropriate for certification, or if it declines the
certification for any other reason, we will resolve the
questions according to our best understanding of Oregon
law.
The Clerk will file a certified copy of this order with the
Oregon Supreme Court pursuant to Or. Rev. Stat. § 28.215.
This appeal is withdrawn from submission and will be
resubmitted following the conclusion of proceedings in the
Oregon Supreme Court. The Clerk is directed to
administratively close this docket, pending further order. We
retain jurisdiction over any further proceedings in this court.
The parties will notify the Clerk within one week after the
Oregon Supreme Court accepts or rejects certification and
again within one week after that court renders an Opinion.
____________________________________________
Kim McLane Wardlaw, Circuit Judge