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United States v. Shelby

United States Court of Appeals, Ninth Circuit

September 19, 2019

United States of America, Plaintiff-Appellee,
v.
Alan Lawrence Shelby, Defendant-Appellant.

          Argued and Submitted June 5, 2019 Portland, Oregon

          Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding D.C. Nos. 3:16-cv-01268-JO, 3:94-cr-00380-JO-1

          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 Plaintiff-Appellee.

          Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit Judges, and Jennifer G. Zipps, [*] District Judge.

         SUMMARY [**]

         28 U.S.C. § 2255

         The 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).

         The 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.

         The 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).

          OPINION

          HURWITZ, CIRCUIT JUDGE.

         The 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.

         I.

         Shelby 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. § 924(e)(2)(B)(ii).[1]

         In 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.

         In 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. ยง 2255 motion, challenging the ACCA enhancement because the residual clause no longer applied and ...


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