Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding D.C. No. 2:08-cr-00084-MJP.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
Argued and Submitted July 6, 2009-Seattle, Washington.
Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges.
This is a sentence appeal, with two issues. We hold that the first degree theft crime under Washington law of which Alderman was convicted is a "crime of violence" for purposes of the guidelines enhancement, and that the shooting in this case was an assault under Washington law.
The district court and we have watched Alderman commit the crime on television. The events were recorded by a surveillance camera aimed at the Seattle apartment complex parking lot where they occurred. A man named Roosevelt Montgomery drove up and parked, approached Alderman, and they talked. Then Montgomery began punching Alderman. He got Alderman on the ground and landed numerous punches and a few kicks, while a woman apparently with Montgomery rifled Alderman's pockets. Then the beating ended, and Alderman backed away, hitching up his pants.
Alderman then drew a gun and started shooting toward Montgomery. The tables being turned by the gun, Alderman now chased Montgomery around Montgomery's car, shooting at him, as Montgomery tried to get into his car and drive away. Alderman fired eight shots at Montgomery as he chased him around his car and another car, then left, firing one additional parting shot. He never hit Montgomery, and Montgomery drove off. Montgomery later told police that he was grazed by one bullet, but he did not seek medical attention.
Alderman was a convicted felon, and the Glock nine millimeter pistol he had used to shoot at Montgomery was easily tied to him. He confessed and pleaded guilty to being a felon in possession.*fn1 In the plea agreement, he admitted that he had previously been convicted of second degree robbery and, in another case, first degree theft.
His guidelines calculation was adjusted upward for the prior felonies, on the theory that they were "crimes of violence."*fn2
An additional upward adjustment in his offense level was imposed on the theory that he had used the unlawfully possessed pistol "in connection with another felony," shooting at Montgomery.
Alderman argues that his prior theft conviction could not properly be counted as a "crime of violence" under the guidelines, and that shooting at ...