and Submitted June 5, 2019 Portland, Oregon
from the United States District Court for the District of
Oregon Robert E. Jones, District Judge, Presiding D.C. Nos.
Elizabeth G. Daily (argued), Assistant Federal Public
Defender; Stephen R. Sady, Chief Deputy Federal Public
Defender; Office of the Federal Public Defender, Portland,
Oregon; for Defendant-Appellant.
Suzanne B. Miles (argued) and Benjamin Tolkoff, Assistant
United States Attorneys; Kelly A. Zusman, Appellate Chief;
Billy J. Williams United States Attorney; United States
Attorney's Office, Portland, Oregon; for
Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Jennifer G. Zipps, [*] District Judge.
U.S.C. § 2255
panel reversed the district court's denial of a 28 U.S.C.
§ 2255 motion, and remanded, in a case in which the
district court determined that the defendant's prior
conviction for armed robbery under Oregon Revised Statutes
§ 164.415 qualified as a "violent felony"
under the Armed Career Criminal Act (ACCA).
panel held that United States v. Strickland, 860
F.3d 1224 (9th Cir. 2017), which held that Oregon
third-degree robbery is not a violent felony under the ACCA
force clause because it "doesn't require physically
violent force," is not clearly irreconcilable with
Stokeling v. United States, 139 S.Ct. 544 (2019),
which addressed a Florida robbery statute that requires
resistance by the victim that is overcome by the physical
force of the offender.
panel agreed with the district court that first-degree
robbery in violation of Or. Rev. Stat. § 164.415(1)(a),
which occurs if the perpetrator is merely "armed with a
deadly weapon," is not a categorically violent offense.
But the panel disagreed with the district court's
conclusion, under the modified categorical approach, that the
defendant's prior convictions were under Or. Rev. Stat.
§ 164.415(1)(b), which requires the use or attempted use
of a dangerous weapon, and therefore were violent ACCA
offenses. The panel wrote that the Shepard documents
do not establish that the defendant was charged or convicted
under § 164.415(1)(b), and therefore even assuming
§ 164.415(1) is divisible, the district court erred in
finding that the defendant had been convicted of armed
robbery under subsection (b).
HURWITZ, CIRCUIT JUDGE.
issue for decision is whether first-degree armed robbery in
violation of Oregon Revised Statutes § 164.415 is a
"violent" felony under the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e). As a matter
of common understanding, appellant Alan Shelby, who has been
convicted of armed robbery three times in Oregon state court,
is the paradigm of an armed career criminal. But we are
mandated by the Supreme Court to analyze this case not
through common understanding, but rather by comparing the
elements of the state crime to the requirements of the
federal statute. And, faithfully applying that approach, we
conclude that the Oregon convictions before us do not qualify
as violent felonies under the ACCA.
pleaded guilty in district court to one count of escape in
violation of 18 U.S.C. § 751(a), and one count of
unlawfully possessing a firearm after a felony conviction in
violation 18 U.S.C. § 922(g). The ACCA mandates a
15-year minimum sentence for a person convicted under §
922(g) with "three previous convictions . . . for a
violent felony or a serious drug offense, or both." 18
U.S.C. § 924(e)(1). A violent felony is defined under
the ACCA "force clause" as one that "has 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). The ACCA "residual clause" also
defines a violent felony as a crime that "involves
conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. §
seeking an ACCA enhancement to Shelby's § 922(g)
sentence, the government offered proof of: (1) three prior
convictions for Oregon first-degree robbery; (2) one prior
conviction for Oregon second-degree robbery; and (3) one
prior federal conviction for "Conspiracy to Manufacture,
Possess With Intent to Distribute and Distribute
Methamphetamine and Use Of a Firearm During a Drug
Crime." The sentencing judge imposed the ACCA
enhancement; Shelby received a sentence of 180 months on the
felon in possession count. The sentencing judge did not
indicate which clause of the ACCA he relied upon, but because
ACCA requires three prior qualifying convictions, the
sentence necessarily rests on the conclusion that Oregon
first-degree robbery is a violent felony.
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), the Supreme Court held the ACCA residual clause to be
unconstitutionally vague, and in Welch v. United
States, 136 S.Ct. 1257, 1268 (2016), it applied the rule
in Johnson retroactively. After Welch was
decided, Shelby timely filed a 28 U.S.C. § 2255 motion,
challenging the ACCA enhancement because the residual clause
no longer applied and ...