United States v. Raqwon Slade

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30150

Plaintiff-Appellee,

D.C. No.

v. 2:15-cr-00353-MJP-1

RAQWON SLADE,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted May 11, 2017

Seattle, Washington

Filed October 10, 2017

Before: M. Margaret McKeown, Carlos T. Bea,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Bea

2 UNITED STATES V. SLADE

SUMMARY *

Criminal Law

The panel vacated a sentence for being a felon in

possession of a firearm, and remanded for resentencing, in a

case in which the district court treated the defendant’s prior

conviction under Washington’s second-degree assault

statute, Revised Code of Washington section 9A.36.021, as

a “crime of violence” under the United States Sentencing

Guidelines.

The panel held that United States v. Jennen, 596 F.3d

594 (9th Cir. 2010), in which this court affirmed a sentence

when the district court had treated a prior conviction under

section 9A.36.021(1)(c) as a crime of violence, has been

effectively overruled by the Supreme Court’s decisions in

Descamps v. United States, 133 S. Ct. 2276 (2013), and

Mathis v. United States, 136 S. Ct. 2243 (2016). Applying

United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the

panel wrote that section 9A.36.021 criminalizes conduct that

does not meet the generic federal definition of crime of

violence and is not divisible. The panel concluded that the

district court therefore erred in applying the modified

categorical approach and in determining that the defendant’s

prior conviction constituted a crime of violence, which

caused the district court to miscalculate the defendant’s base

offense level and Guidelines range.

*

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. SLADE 3

COUNSEL

Vanessa Pai-Thompson (argued), Assistant Federal Public

Defender, Federal Public Defender’s Office, Seattle,

Washington, for Defendant-Appellant.

Michael Symington Morgan (argued), Assistant United

States Attorney; Annette L. Hayes, United States Attorney;

United States Attorney; United States Attorney’s Office,

Seattle, Washington; for Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

Raqwon Slade (“Slade”) appeals his sentence for being

a felon in possession of a firearm. Slade’s sentence was

enhanced because the district court treated his prior

conviction under Washington’s second-degree assault

statute, Revised Code of Washington section 9A.36.021

(“section 9A.36.021”), as a “crime of violence” under the

United States Sentencing Guidelines (“Guidelines”). State

court documents from the prior conviction demonstrated that

Slade had pleaded guilty to violating section

9A.36.021(1)(c), assault with a deadly weapon. We reverse.

This case is controlled by our recent decision in United

States v. Robinson, 869 F.3d 933 (9th Cir. 2017), in which

we held that section 9A.36.021 is not a crime of violence

under the Guidelines. 869 F.3d at 941. However, before we

can apply Robinson, we must first conclude that United

States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which we

affirmed a sentence when the district court had treated the

defendant’s prior conviction under section 9A.36.021(1)(c)

4 UNITED STATES V. SLADE

as a crime of violence, id. at 601–02, has been effectively

overruled by the Supreme Court’s subsequent decisions in

Descamps v. United States, 133 S. Ct. 2276 (2013), and

Mathis v. United States, 136 S. Ct. 2243 (2016).

I. Factual and Procedural Background

Slade had a seizure and was treated by firefighters. King

County Sheriff’s deputies that were dispatched to assist the

firefighters found a loaded pistol in Slade’s pocket. Slade, a

convicted felon, was subsequently charged with being a

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Slade pleaded guilty.

As noted above, Slade had previously been convicted

under section 9A.36.021. Before sentencing, the

Presentence Report (“PSR”) recommended that the prior

conviction be treated as a crime of violence and that Slade

be assigned a base offense level of 20 pursuant to section

2K2.1(a)(4)(A) of the Guidelines. 1 Section 2K2.1 defines a

“crime of violence,” in relevant part, as “any offense . . . that

. . . has as an element the use, attempted use, or threatened

use of physical force against the person of another.” See

Robinson, 869 F.3d at 937 (citing Application Note 1 to

U.S.S.G. § 2K2.1). In this context, physical force means

violent force, i.e., force that can cause physical pain or

injury. Id.

Washington’s second-degree assault statute lists

different methods of committing second-degree assault in

1

Guidelines section 2K2.1(a)(4)(A) provides for a base offense

level of 20 if the defendant unlawfully possessed a firearm subsequent

to sustaining a felony conviction for a crime of violence.

UNITED STATES V. SLADE 5

the seven subsections of section 9A.36.021(1). The PSR

noted that, during Slade’s prior conviction, he pleaded guilty

to violating section 9A.36.021(1)(c), assault with a deadly

weapon. 2 The PSR concluded this prior conviction was for

a crime of violence.

Additionally, the PSR recommended a three-level

downward adjustment for acceptance of responsibility. The

PSR assigned three criminal history points for Slade’s prior

conviction, which established a criminal history category of

II. Based on a total offense level of 17 and a criminal history

category of II, the PSR concluded that Slade’s Guidelines

sentencing range was twenty-seven to thirty-three months’

imprisonment.

At sentencing, the district court applied the modified

categorical approach 3 and concluded that Slade’s prior

conviction constituted a crime of violence. The court then

sentenced Slade to twenty-four months’ imprisonment,

followed by three years of supervised release.

Slade appeals his sentence. He contends that the district

court erred by using the modified categorical approach and

that his previous conviction does not constitute a crime of

violence under the Guidelines.

2

According to the judgment and the information in this case, during

an argument that led to a physical fight, Slade produced a gun and shot

a man.

3

Under the modified categorical approach, a sentencing court

examines “a limited class of documents” from a defendant’s prior

conviction to determine whether the defendant’s prior crime qualifies as

a crime of violence under the Guidelines. Robinson, 869 F.3d at 936

(quoting United States v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir.

2017)).

6 UNITED STATES V. SLADE

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo whether a state crime qualifies as a crime of

violence under the Guidelines. United States v. Crews,

621 F.3d 849, 851 (9th Cir. 2010).

III. Discussion

We apply the categorical approach described in the

Supreme Court’s decisions in Taylor v. United States,

495 U.S. 575 (1990), Descamps, and Mathis to decide

whether a defendant’s prior conviction qualifies as a crime

of violence under the Guidelines. See Robinson, 869 F.3d at

936. First, we decide whether the elements of the prior crime

match the elements of the generic federal definition of a

crime of violence. Id. If the statute of conviction is

overbroad and not a categorical match, we then ask whether

the statute is divisible into separate crimes with unique

elements. Id. If the statute is divisible, only then may a court

use the modified categorical approach. Id.

On appeal, Slade contends that his prior conviction for

second-degree assault does not constitute a crime of violence

because section 9A.36.021 is categorically overbroad and

not divisible. In response, the government contends that this

case is controlled by Jennen.

A. United States v. Jennen has been effectively

overruled.

Slade contends that Jennen is no longer good law in light

of the Supreme Court’s subsequent decisions in Descamps

and Mathis. We agree. “[W]here the reasoning or theory of

our prior circuit authority is clearly irreconcilable with the

reasoning or theory of intervening higher authority, a three-

UNITED STATES V. SLADE 7

judge panel should consider itself bound by the latter and

controlling authority, and should reject the prior circuit

opinion as having been effectively overruled.” Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

In Jennen, the defendant was convicted of being a felon

in possession of a firearm and ammunition. 596 F.3d at 596.

Previously, the defendant had been convicted of section

9A.36.021, in particular, section 9A.36.021(1)(c), assault

with a deadly weapon. See id. at 600. At sentencing, the

district court held that this prior conviction constituted a

crime of violence under the Guidelines. Id. We affirmed the

sentence imposed by the district court, and concluded that

the defendant’s prior conviction for second-degree assault

with a deadly weapon constituted a crime of violence. Id. at

600–02.

In so doing, the Jennen court failed to consider whether

section 9A.36.021 itself was divisible, no doubt because

Descamps and Mathis had not yet clarified that particular

analytical step. See Jennen, 596 F.3d at 600–02. As a result,

the Jennen court implicitly assumed that section 9A.36.021

was divisible into separate crimes based on the listed

subsections in 9A.36.021(1). See id. at 601. The court then

proceeded to apply the categorical overbreadth analysis to

only a particular subsection of section 9A.36.021(1), section

9A.36.021(1)(c). Id. at 601–02. If section 9A.36.021 were

divisible (as defined in Descamps and Mathis), such an

approach would be a proper application of the modified

categorical approach. See Mathis, 136 S. Ct. at 2249.

However, if the statute is not divisible, then it would be

improper to apply the modified categorical approach to

determine whether only one part of Washington’s second-

degree assault statute constitutes a crime of violence under

the Guidelines. See id. at 2253–54.

8 UNITED STATES V. SLADE

Since Jennen failed to consider whether section

9A.36.021 is divisible—and it is not, per Robinson—the

decision’s reasoning is “clearly irreconcilable” with the

analytical process prescribed by Descamps and Mathis.

Gammie, 335 F.3d at 893. Therefore, we are bound by

Descamps and Mathis rather than Jennen. 4 See id.

B. As we held in Robinson, section 9A.36.021

does not constitute a crime of violence under

the Guidelines.

In Robinson, at sentencing, the district court treated the

defendant’s prior conviction under section 9A.36.021 as a

crime of violence when the court applied Guidelines section

2K2.1. 869 F.3d at 935–36. We reversed the sentence,

holding that section 9A.36.021 is not a crime of violence

under the Guidelines. Id. at 941. As Slade’s prior section

9A.36.021 conviction was also considered a crime of

violence at sentencing, we follow Robinson.

Following Mathis, we first must determine if some of the

conduct criminalized by section 9A.36.021 does not

constitute a crime of violence. Robinson, 869 F.3d at 936.

As in Robinson, the government does not dispute that section

9A.36.021 is categorically overbroad. We agreed and held

4

We reached an analogous conclusion in Robinson. In United States

v. Lawrence, 627 F.3d 1281 (9th Cir. 2010), we held that section

9A.36.021(1)(a), intentional assault in which the defendant recklessly

inflicts substantial bodily harm, is categorically a “violent felony” under

the Armed Career Criminal Act. Id. at 1288. We held in Robinson that

Lawrence is no longer good law because Lawrence is “clearly

irreconcilable” with the Supreme Court’s decisions in Descamps and

Mathis since the Lawrence court failed to consider whether section

9A.36.021 is divisible. See Robinson, 869 F.3d at 936–37 (citation

omitted).

UNITED STATES V. SLADE 9

that “subsection (1)(e) criminalizes conduct that is not

covered by section 2K2.1’s definition of ‘crime of

violence.’” Id. at 938.

Next, we must determine whether section 9A.36.021 is

divisible into separate crimes. See id. at 938–39. We held

in Robinson that section 9A.36.021 is not divisible because,

after reviewing decisions of the Washington Supreme Court

and Washington pattern jury instructions, we concluded that

“section 9A.36.021 defines a single crime—second-degree

assault—and provides seven different ‘means’ by which a

person can commit that crime.” Id. at 941.

Since section 9A.36.021 criminalizes conduct that does

not meet the generic federal definition of a crime of violence

and is not divisible, section 9A.36.021 is not a crime of

violence for purposes of applying Guidelines section 2K2.1.

Id. Therefore, the district court erred in sentencing Slade.

This error caused the district court to miscalculate Slade’s

base offense level and Guidelines range. 5 “A mistake in

calculating the recommended Guidelines range is a

significant procedural error that requires us to remand for

resentencing.” United States v. Lee, 821 F.3d 1124, 1226

5

As noted above, the district court calculated Slade’s base offense

level as 20 because it applied Guidelines section 2K2.1(a)(4), subtracted

three levels for acceptance of responsibility, which, combined with

Slade’s criminal history category II, yielded a sentencing range of

twenty-seven to thirty-three months. Since Slade’s prior conviction

cannot be treated as a conviction for a crime of violence, Slade’s base

offense level should have been fourteen. U.S.S.G. § 2K2.1(a)(6)(A).

With a two-level reduction for acceptance of responsibility, U.S.S.G.

§ 3E1.1, his Guidelines range would have been twelve-to-eighteen

months’ imprisonment. U.S.S.G. ch. 5, pt. A.

10 UNITED STATES V. SLADE

(9th Cir. 2016) (quoting United States v. Munoz-Camarena,

631 F.3d 1028, 1030 (9th Cir. 2011)).

IV. Conclusion

We VACATE Slade’s sentence and REMAND for

resentencing.