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United States v. Willis

United States Court of Appeals, Ninth Circuit

July 29, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
SID EDWARD WILLIS, JR., Defendant-Appellant

Argued and Submitted, Portland, Oregon March 4, 2015

Appeal from the United States District Court for the District of Oregon. D.C. No. 3:12-cr-00292-BR-1. D.C. No. 3:02-cr-00120-BR-1. Anna J. Brown, District Judge, Presiding.

SUMMARY [*]

Criminal Law

The panel vacated a sentence for a violation of supervised release, and remanded for further proceedings, in a case in which the defendant, who admitted that his conduct constituted the state felony offense of unlawful use of a weapon under section 166.220(1)(a) of the Oregon Revised Statutes, argued that a violation of § 166.220(1)(a) is not categorically a " crime of violence," for purposes of U.S.S.G. § 7B1.1, and therefore not a Grade A violation.

The panel held that before a district court concludes that a defendant committed a Grade A violation of supervised release by engaging in conduct constituting a felony offense that is a crime of violence, it must take the following steps. First, it must determine by a preponderance of the evidence that the defendant's conduct constituted a federal, state, or local offense. It must then use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether that offense is a categorical match to the federal generic offense of a " crime of violence." If the federal, state, or local statute criminalizes more conduct than the federal generic offense, the court may consider whether the statute is divisible, Descamps v. United States, 133 S.Ct. 2276, 2283-85, 186 L.Ed.2d 438 (2013), and whether the offense the defendant committed qualifies as a crime of violence. If the defendant's conduct constitutes an offense that is a crime of violence, then the court may conclude that the defendant committed a Grade A violation of supervised release. See U.S.S.G. § 7B1.1(a)(1)(A)(i) & cmt. n.1.

Because the district court in this case did not specify which of two offenses -- attempt or possession -- in a divisible statute, § 166.220(1)(a), the defendant's conduct constituted, and one of the two offenses -- possession -- may not be a crime of violence in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (U.S. 2015), the panel vacated his sentence and remanded for further proceedings.

The panel noted that because resolution of the issue may prove unnecessary to the ultimate disposition of the case, it need not resolve whether the due process concerns that led Johnson to invalidate the residual clause in the Armed Career Criminal Act are equally applicable to the residual clause in U.S.S.G. § 4B1.2(a).

Tonia L. Moro (argued), Medford, Oregon, for Defendant-Appellant.

Kelly A. Zusman (argued), Appellate Chief, Assistant United States Attorney; S. Amanda Marshall, United States Attorney, Portland, Oregon, for Plaintiff-Appellee.

Before: Raymond C. Fisher, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta.

OPINION

IKUTA, Circuit Judge

Sid Willis, Jr. challenges his 60-month sentence for violating the conditions of his supervised release. See 18 U.S.C. § 3583(e)(3). Specifically, he argues that the district court plainly erred in calculating the Sentencing Guidelines range by determining that Willis committed a Grade A violation of his supervised release because his conduct did not constitute a felony offense that is a " crime of violence." See U.S.S.G. § 7B1.1(a)(1). We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We hold that before a district court concludes that a defendant committed a Grade A violation of supervised release by engaging in conduct constituting a felony offense that is a crime of violence, it must take the following steps. First, it must determine by a preponderance of the evidence that the defendant's conduct constituted a federal, state, or local offense. See 18 U.S.C. § 3583(d), (e)(3). It must then use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether that offense is a categorical match to the federal generic offense of a " crime of violence." If the federal, state, or local statute criminalizes more conduct than the federal generic offense, the court may consider whether the statute is divisible, Descamps v. United States, 133 S.Ct. 2276, 2283-85, 186 L.Ed.2d 438 (2013), and whether the offense the defendant committed qualifies as a crime of violence. If the defendant's conduct constitutes an offense that is a crime of violence, then the court may conclude that the defendant committed a Grade A violation of supervised release. See U.S.S.G. ...


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