United States v. Robert Vederoff

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30096

Plaintiff-Appellee,

D.C. No.

v. 2:16-cr-00325-

RSL-1

ROBERT LAWRENCE VEDEROFF,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted November 6, 2018

Seattle, Washington

Filed February 1, 2019

Before: M. Margaret McKeown and Michelle T. Friedland,

Circuit Judges, and Fernando J. Gaitan, Jr., * District Judge

Opinion by Judge Gaitan

*

The Honorable Fernando J. Gaitan, Jr., United States District Judge

for the Western District of Missouri, sitting by designation.

2 UNITED STATES V. VEDEROFF

SUMMARY **

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which the defendant pleaded guilty

to being a felon in possession of a firearm.

The panel held that second-degree assault under Wash.

Rev. Code § 9A.36.021(1) is overbroad when compared to

the generic definition of aggravated assault because only the

former encompasses assault with intent to commit a felony.

Because Washington’s second-degree assault statute is

indivisible, the panel could not apply the modified

categorical approach, and therefore concluded that

Washington second-degree assault does not qualify as a

“crime of violence” under the enumerated clause of U.S.S.G.

§ 4B1.2.

The panel held that second-degree murder under Wash.

Rev. Code § 9A.32.050 (2003) is overbroad when compared

to the generic definition of murder because only the former

covers felony murder. Because Washington’s second-

degree murder statute is indivisible, the panel could not

apply the modified categorical approach, and therefore

concluded that Washington second-degree murder is not a

“crime of violence” under the enumerated clause of § 4B1.2.

The panel held that second-degree murder under

§ 9A.32.050 (2003) is overbroad as compared to a generic

**

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. VEDEROFF 3

crime of violence because the former imposes liability for

negligent or even accidental felony murder. Because the

Washington statute is indivisible, the panel could not apply

the modified categorical approach, and therefore concluded

that Washington second-degree murder is not a “crime of

violence” under the force/elements clause of § 4B1.2(a)(2).

The panel held that the district court’s sentencing errors

were not harmless.

COUNSEL

Alan Zarky (argued), Staff Attorney; Mohammad Ali

Hamoudi, Assistant Federal Public Defender; Office of the

Federal Public Defender, Seattle, Washington; for

Defendant-Appellant.

Helen J. Brunner (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney; United States

Attorney’s Office, Seattle, Washington; for Plaintiff-

Appellee.

OPINION

GAITAN, District Judge:

Robert Vederoff appeals the sentence imposed following

his guilty plea to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He challenges the district

court’s findings that his prior convictions for second-degree

assault and second-degree murder under Washington law

qualify as “crimes of violence” under section 4B1.2(a) of the

United States Sentencing Guidelines (“U.S.S.G.”). For the

4 UNITED STATES V. VEDEROFF

following reasons, we vacate and remand for further

proceedings consistent with this Opinion.

I. BACKGROUND

Vederoff was charged with and pled guilty to being a

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

§ 922(g). 1 As part of his written plea agreement, Vederoff

acknowledged receiving each of the felony convictions

listed in the indictment, including one conviction for second-

degree assault and one conviction for second-degree murder,

both under Washington law.

Before sentencing, the United States Probation Office

issued a Presentence Report (“PSR”). The PSR set the base

offense level at 24, under U.S.S.G. § 2K2.1, concluding that

Vederoff’s prior convictions for second-degree assault and

second-degree murder qualified as “crimes of violence.”

After a three-level downward adjustment for acceptance of

responsibility, the PSR set Vederoff’s total offense level at

21. The PSR calculated Vederoff’s criminal history score as

13, and his criminal history category as VI. Accordingly,

Vederoff’s recommended Guidelines range was 77 to

96 months. The probation officer, however, recommended

a 60-month sentence, balancing mitigating and aggravating

factors in Vederoff’s history.

Vederoff objected to either of these convictions counting

as “crimes of violence” under U.S.S.G. § 4B1.2(a). He

argued that, without the crimes of violence, the base offense

1

He was also charged with being a felon in possession of

ammunition, 18 U.S.C. § 922(g), but that charge was dropped pursuant

to the plea agreement.

UNITED STATES V. VEDEROFF 5

level should be 14, and after adjustment for acceptance of

responsibility, the Guidelines range would be 27 to

33 months. 2 Vederoff requested a sentence of 27 months of

imprisonment, the lowest end of his proposed range. The

government agreed with the PSR’s crime of violence

findings and recommended a sentence of 72 months of

imprisonment, five months below the low end of the

Guidelines range if both convictions counted as crimes of

violence.

On May 5, 2017, the district court sentenced Vederoff to

60 months in custody after concluding that both convictions

were crimes of violence. In explaining its decision, the

district court stated:

So on the, you know, the [United States v.

Johnson, 135 S. Ct. 2551 (2015),] issues —

and we’re still in a state of flux on this — it

drives me absolutely nuts as a trial judge to

think that things like murder and assault with

a deadly weapon could be conceived as not

being crimes of violence, but these are highly

technical rulings from courts that

predominantly don’t have people who have

ever been in a trial court, let alone been a

trial-court lawyer or trial-court judge.

But my analysis of this is that they are both

countable crimes of violence, and it is an

2

This calculation was incorrect: a three-level adjustment for

acceptance of responsibility is only available for base offenses of 16 or

greater. With a base offense level of 14, Vederoff would be entitled to a

two-level adjustment. See U.S.S.G. § 3E1.1(a). The resulting Guideline

range would be 30 to 37 months.

6 UNITED STATES V. VEDEROFF

offense level 21, Criminal History Category

VI, 77 to 96 range. If [defense counsel] is

correct, it would be a level 14, Criminal

History Category VI, with a 37 to 46 range.

Either way, looking at the factors, I really

believe the right sentence is a five-year prison

term. So I’m going to impose a 60-month

prison term. It’s either a departure downward

from a range that’s too high or a departure

upward from a range that’s too low. But the

murder and the assault two are, in the Court’s

opinion, countable under the analysis of

being a divisible crime in the assault two, and

that the ways to commit aiding and abetting

felony murder have to comport with the

national standard of doing something active

to join in a felony that’s a serious felony, not

some sort of hypothetical minor felony. It

has to be during the commission of a

dangerous felony or through conduct

evincing reckless or depraved indifference to

the serious dangers. But as I say, the range is

not as important to me as what is the right

sentence for this individual under these

circumstances, and I think for the deterrent

effect and the punishment effect, five years is

correct for the prison term.[ 3]

Vederoff timely appealed his sentence.

3

The calculation of a 37 to 46 month range was incorrect. As noted,

the correct Guideline range if neither conviction counted as a crime of

violence was 30 to 37 months. See supra note 2.

UNITED STATES V. VEDEROFF 7

II. JURISDICTION AND STANDARD OF REVIEW

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

review de novo whether a predicate state conviction

constitutes a crime of violence under the Guidelines. United

States v. Robinson, 869 F.3d. 933, 936 (9th Cir. 2017). We

apply a harmless error analysis to Guideline calculations.

United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th

Cir. 2011).

III. DISCUSSION

Under U.S.S.G. § 2K2.1, Vederoff had a base offense

level of 24 if he had two or more felony convictions that

qualify as a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). If

he had one, his base offense level would be 20, and if he had

none, his base offense level would be 14. U.S.S.G.

§ 2K2.1(a)(4), (6). “For the purposes of this guideline . . .

‘Crime of violence’ has the meaning given that term in

§ 4B1.2(a) and Application Note 1 of the Commentary to

§ 4B1.2.” U.S.S.G. § 2K2.1 cmt. n.1. At the time of

Vederoff’s offense and his sentencing, section 4B1.2(a), the

career offender guideline, defined “crime of violence” as:

any offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that –

(1) has as an element the use, attempted

use, or threatened use of physical force

against the person of another, or

(2) is murder, voluntary manslaughter,

kidnapping, aggravated assault, . . . .

8 UNITED STATES V. VEDEROFF

U.S.S.G. § 4B1.2(a). The first part of this definition is the

“force/elements clause,” and the second is the “enumerated

clause.” The commentary clarified that “crime[s] of

violence . . . include the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.”

U.S.S.G. § 4B1.2 cmt. n.1.

To determine whether a prior state conviction qualifies

as a crime of violence, we apply the “categorical approach.”

Robinson, 869 F.3d at 936; see also Taylor v. United States,

495 U.S. 575, 600 (1990) (first articulating the approach in

the context of the Armed Career Criminal Act’s (“ACCA”)

“violent felony” provision). Under this approach, we define

the scope of the generic federal offense at issue, and then

compare its elements to the elements of the state criminal

statute. United States v. Arriaga-Pinon, 852 F.3d 1195,

1198–99 (9th Cir. 2017). If the state statute is identical to or

narrower than the generic federal offense, then the predicate

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

If the state statute is overbroad (i.e., criminalizes any

conduct not covered by the generic offense), we must

determine whether the statute is divisible (i.e., whether it has

alternative elements). Arriaga-Pinon, 852 F.3d at 1199. If

it is indivisible, the inquiry ends: the predicate conviction is

not a crime of violence. If the state statute is divisible, then

we apply the “modified categorical approach,” which

permits examination of the indictment, jury instructions,

and/or plea agreements to determine which of the alternative

elements were the basis of the conviction. Id. at 1199–1200.

The state conviction is a crime of violence if those elements

serving as the basis of the conviction are identical to or

narrower than the elements of the generic federal offense.

Throughout, “we must presume that the conviction rested

upon [nothing] more than the least of th[e] acts criminalized”

UNITED STATES V. VEDEROFF 9

by the state statute. Moncrieffe v. Holder, 569 U.S. 184,

191–92 (2013) (alterations in original) (citation omitted).

A. The Washington crime of second-degree assault does

not qualify as a “crime of violence” under U.S.S.G.

§ 4B1.2.

Under Washington law,

[a] person is guilty of assault in the second

degree if he or she, under circumstances not

amounting to assault in the first degree:

(a) Intentionally assaults another and

thereby recklessly inflicts substantial

bodily harm; or

(b) Intentionally and unlawfully causes

substantial bodily harm to an unborn

quick child by intentionally and

unlawfully inflicting any injury upon the

mother of such child; or

(c) Assaults another with a deadly

weapon; or

(d) With intent to inflict bodily harm,

administers to or causes to be taken by

another, poison or any other destructive

or noxious substance; or

(e) With intent to commit a felony,

assaults another; or

(f) Knowingly inflicts bodily harm which

by design causes such pain or agony as to

10 UNITED STATES V. VEDEROFF

be the equivalent of that produced by

torture; or

(g) Assaults another by strangulation or

suffocation.

Wash. Rev. Code § 9A.36.021(1). In Robinson, we held that

second-degree assault in Washington is not a crime of

violence under the force/elements clause. 869 F.3d at 937–

41. However, Robinson did not decide whether it is a crime

of violence under the enumerated clause. 4 We must do so

here.

For the purposes of defining federal assault, the

government urges us to adopt the following definition of

“aggravated assault” found in an unrelated section of the

Guidelines:

a felonious assault that involved (A) a

dangerous weapon with intent to cause bodily

injury (i.e., not merely to frighten) with that

weapon; (B) serious bodily injury;

(C) strangling, suffocating, or attempting to

strangle or suffocate; or (D) an intent to

commit another felony.

U.S.S.G. § 2A2.2, cmt. n.1 (emphasis added). We decline to

do so. The introductory provisions of the Guidelines warn

that, while definitions “also may appear in other sections,”

those definitions “are not designed for general applicability.”

U.S.S.G. § 1B1.1, cmt. n.2. Instead, “their applicability to

4

While Robinson addressed an earlier version of the Guidelines, the

force/elements clause at issue there was same. 869 F.3d at 937–41.

“Aggravated assault” was not listed in the enumerated clause in the

earlier version of the Guidelines.

UNITED STATES V. VEDEROFF 11

sections other than those expressly referenced must be

determined on a case by case basis.” Id. In other cases,

when a section of the Sentencing Guidelines did not plainly

identify the elements of a federal offense, we looked to the

generic definition of that offense, rather than importing a

specific definition located in an unrelated section of the

Guidelines. See United States v. Gonzalez-Perez, 472 F.3d

1158, 1161 (9th Cir. 2007); see also United States v.

Esparza-Herrera, 557 F.3d 1019, 1022–25 (9th Cir. 2009)

(defining the generic offense of “aggravated assault” for the

purposes of U.S.S.G. § 2L1.2 by reference to the Model

Penal Code, treatises, and various state laws, rather than

using U.S.S.G. § 2A2.2); United States v. Garcia-Jimenez,

807 F.3d 1079, 1085–87 (9th Cir. 2015) (clarifying the

generic offense of “aggravated assault” for the purposes of

U.S.S.G. § 2L1.2 by reference to the criminal statutes of a

substantial majority of U.S. jurisdictions).

Accordingly, in this case we compare the definition of

“aggravated assault” under Washington law to the generic

definition of aggravated assault. The least culpable means

within the Washington statute is assault with intent to

commit a felony, Wash. Rev. Code § 9A.36.021(1)(e), so we

must determine whether the generic definition of aggravated

assault covers such conduct. Our review of the common

law, 5 the Model Penal Code, treatises, and the laws of the

other states, see Esparza-Herrera, 557 F.3d at 1022–25,

compels the conclusion that generic aggravated assault does

not include assault with intent to commit a felony. The

Model Penal Code defines aggravated assault as assault

causing or attempting to cause bodily injury “under

5

Common law does not aid our interpretation here because

“aggravated assault” is a statutory creation. See 2 Wayne R. LaFave,

Substantive Criminal Law § 16.1(b) (3d ed. 2018).

12 UNITED STATES V. VEDEROFF

circumstances manifesting extreme indifference to the value

of human life” or with a deadly weapon. Model Penal Code

§ 211.1(2). It does not include assault with intent to commit

another felony.

With respect to the laws of the states, only six states

(including Washington) and the District of Columbia include

assault with intent to commit any felony within their assault

statutes (whether titled “aggravated” assault or not). 6 In

11 states, aggravated assault includes assault with the intent

to commit a narrower set of specific felonies 7 or assault

committed during the commission of a felony. 8 In 33 states,

aggravated assault never includes assault with the intent to

commit a felony. 9 Second-degree assault under Washington

6

Fla. Stat. § 784.021; Kan. Stat. Ann. § 21-5412; Mass. Gen. Laws

ch. 265, § 29; Mich. Comp. Laws § 750.87; N.M. Stat. Ann. § 30-3-2;

Wash. Rev. Code § 9A.36.021; D.C. Code §§ 22-403, 22-404.01.

7

Cal. Penal Code §§ 220, 245; Ga. Code Ann. § 16-5-21; N.C. Gen.

Stat. § 14-32; 11 R.I. Gen. Laws §§ 11-5-1, 11-5-2; Va. Code Ann.

§ 18.2–51.2.

8

Ala. Code § 13A-6-20; Del. Code Ann. tit. 11, § 613; Iowa Code

§ 708.3; N.Y. Penal Law § 120.10; S.C. Code Ann. § 16-3-600; W. Va.

Code § 61-2-10.

9

Alaska Stat. § 11.41.200; Ariz. Rev. Stat. Ann. § 13-1204; Ark.

Code Ann. § 5-13-204; Colo. Rev. Stat. § 18-3-202; Conn. Gen. Stat.

§ 53A-59; Haw. Rev. Stat. § 707-711; Idaho Code § 18-905; 720 Ill.

Comp. Stat. 5/12-2; Ind. Code § 35-42-2-1.5; Ky. Rev. Stat. Ann.

§ 508.010; La. Stat. Ann. §§ 14:34, 14:34.7; Me. Rev. Stat. Ann. tit. 17-

A, § 208; Md. Code Ann., Crim. Law § 3-202; Minn. Stat. §§ 609.02,

609.221, 609.222, 609.223, 609.2233; Miss. Code Ann. § 97-3-7; Mo.

Rev. Stat. § 565.050; Mont. Code Ann. § 45-5-202; Neb. Rev. Stat.

§§ 28-308, 28-309; Nev. Rev. Stat. § 200.471; N.H. Rev. Stat. Ann.

§ 631:1, 631:2; N.J. Stat. Ann. § 2C:12-1; N.D. Cent. Code § 12.1-17-

02; Ohio Rev. Code Ann. § 2903.12; Okla. Stat. tit. 21, § 646; Or. Rev.

UNITED STATES V. VEDEROFF 13

law clearly covers a broader range of conduct than generic

aggravated assault. We have previously concluded that

Washington’s second-degree assault statute is indivisible,

Robinson, 869 F.3d at 941, so we cannot apply the modified

categorical approach here. Contrary to the conclusion

reached by the district court, second-degree assault under

Washington law is not a “crime of violence” under U.S.S.G.

§ 4B1.2.

B. The Washington crime of second-degree murder does

not qualify as a “crime of violence” under U.S.S.G.

§ 4B1.2.

At the time of Vederoff’s offense, Washington law

defined second-degree murder as when:

(a) With intent to cause the death of another

person but without premeditation, he or she

causes the death of such person or of a third

person; or

(b) He or she commits or attempts to commit

any felony, including assault, other than

those enumerated in RCW 9A.32.030(1)(c)

[Washington’s first-degree murder statute],

and, in the course of and in furtherance of

such crime or in immediate flight therefrom,

he or she, or another participant, causes the

death of a person other than one of the

participants; except that in any prosecution

Stat. §§ 163.175, 163.185; 18 Pa. Cons. Stat. § 2702; S.D. Codified Laws

§ 22-18-1.1; Tenn. Code Ann. § 39-13-102; Tex. Penal Code Ann.

§ 22.02; Utah Code Ann. § 76-5-103; Vt. Stat. Ann. tit. 13, § 1024; Wis.

Stat. § 940.19; Wyo. Stat. Ann. § 6-2-502.

14 UNITED STATES V. VEDEROFF

under this subdivision (1)(b) in which the

defendant was not the only participant in the

underlying crime, if established by the

defendant by a preponderance of the

evidence, it is a defense that the defendant:

(i) Did not commit the homicidal act or in

any way solicit, request, command,

importune, cause, or aid the commission

thereof; and

(ii) Was not armed with a deadly weapon,

or any instrument, article, or substance

readily capable of causing death or

serious physical injury; and

(iii) Had no reasonable grounds to believe

that any other participant was armed with

such a weapon, instrument, article, or

substance; and

(iv) Had no reasonable grounds to believe

that any other participant intended to

engage in conduct likely to result in death

or serious physical injury.

Wash. Rev. Code § 9A.32.050 (2003). We must now

determine whether a conviction under this statute is a crime

of violence under either the enumerated clause or

force/elements clause of U.S.S.G. § 4B1.2.

1. Enumerated clause

We have not adopted a definition for generic murder.

After surveying the Model Penal Code, dictionary

definitions, and state laws, the Third Circuit defined generic

UNITED STATES V. VEDEROFF 15

murder as “causing the death of another person either

intentionally, during the commission of a dangerous felony,

or through conduct evincing reckless and depraved

indifference to serious dangers posed to human life.” United

States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014),

abrogated on other grounds by Johnson v. United States,

135 S. Ct. 2551 (2015); see also United States v. Castro-

Gomez, 792 F.3d 1216, 1217 (10th Cir. 2015) (citing

approvingly to Marrero). We adopt that definition here.

The least culpable means of committing second-degree

murder in Washington is under the felony murder provision,

so we must determine whether generic murder also covers

such conduct. Under Washington law, the underlying felony

can be any felony—unlike felony murder in the Third

Circuit’s definition of generic murder, it is not limited to

dangerous felonies. Washington’s felony murder provision

is an outlier among the states: seven do not impose felony

murder liability at all. Guyora Binder, Making the Best of

Felony Murder, 91 B.U. L. Rev. 403, 440 (2011) (citing to

Arkansas, Hawaii, Kentucky, Michigan, New Hampshire,

New Mexico, and Vermont). In the jurisdictions that do

impose felony murder liability, unlike Washington, a

majority enumerate the predicate felonies in their statute.

See id. at 450 n.262 (citing to 18 U.S.C. § 1111 and Alaska,

Arizona, Colorado, Connecticut, District of Columbia,

Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Nebraska,

New Jersey, New York, North Dakota, Ohio, Oregon,

Pennsylvania, South Dakota, Tennessee, Utah, West

Virginia, Wisconsin, and Wyoming). In the jurisdictions

without exhaustively enumerated predicate felonies, almost

all require that the predicate offense be a dangerous felony.

See id. at 466–82 (discussing Alabama, California,

Delaware, Georgia, Illinois, Maryland, Massachusetts,

Minnesota, Missouri, Montana, Nevada, North Carolina,

16 UNITED STATES V. VEDEROFF

Oklahoma, Rhode Island, South Carolina, Texas, and

Virginia). Only three states (including Washington) allow

felony murder to be predicated on non-enumerated offenses

lacking a dangerousness requirement. See id. at 478

(explaining that Florida and Mississippi are the two other

jurisdictions). Furthermore, the Model Penal Code limits

felony murder to deaths resulting from conduct involving

certain specified dangerous offenses. Model Penal Code

§ 210.2(1)(b).

The government insists that any concerns regarding the

breadth of the statute are hypothetical. See Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring “a

realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside the

generic definition of a crime”). Facial overbreadth like that

here, however, is a basis for finding a statute overbroad. See

United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)

(en banc) (holding that where “a state statute explicitly

defines a crime more broadly than the generic definition, no

‘legal imagination,’ is required to hold that a realistic

probability exists that the state will apply its statute to

conduct that falls outside the generic definition of the crime”

(citing Duenas-Alvarez, 549 U.S. at 193)).

Washington’s second-degree murder statute is therefore

overbroad when compared with the definition of generic

murder, as well as the Model Penal Code and the laws of

other jurisdictions. We next turn to whether this statute is

divisible. Because the plain language of the statute does not

resolve this question, we look to state decisional law.

Robinson, 869 F.3d at 938. Washington courts have

concluded that the statute is indivisible, and we adopt their

interpretation here. See, e.g., State v. Berlin, 947 P.2d 700,

705–06 (Wash. 1997) (holding that this statute defines a

UNITED STATES V. VEDEROFF 17

“single crime, which can be committed by alternative

means” and therefore, “the State is not required to elect

between the alternative means of committing second degree

murder”); see also State v. Lizarraga, 364 P.3d 810, 828

(Wash. Ct. App. 2015) (concluding that this statute contains

alternative means, not alternative elements). As above, we

cannot apply the modified categorical approach. Contrary to

the conclusion reached by the district court, second-degree

murder under Washington law is not a crime of violence

under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).

2. Force/elements clause

The government argues for the first time on appeal that

second-degree murder qualifies as a crime of violence under

the force/elements clause. We need not determine whether

it has waived or forfeited this claim, because it is apparent

that the argument fails on the merits. The generic “crime of

violence” includes the following elements: (i) the crime has

“as an element the use, attempted use, or threatened use of

physical force against [a] person,” (ii) the “physical force”

must be “violent” or otherwise “capable of causing physical

pain or injury to another person,” and (iii) the “use of force

must be intentional, not just reckless or negligent.” U.S.S.G.

§ 4B1.2(a)(1); United States v. Dixon, 805 F.3d 1193, 1197

(9th Cir. 2015) (defining “violent felony” under ACCA’s

force/elements clause); United States v. Ladwig, 432 F.3d

1001, 1005 n.9 (9th Cir. 2005) (noting that requirements for

the ACCA’s “violent felony” and the Guidelines’ “crime of

violence” are “identical”). On the other hand, Washington

law imposes liability for negligent or even accidental felony

murder. See, e.g., State v. Leech, 790 P.2d 160, 164 (Wash.

1990) (“The purpose of the felony murder rule is to deter

felons from killing negligently or accidentally by holding

them strictly responsible for killings they commit.”). The

18 UNITED STATES V. VEDEROFF

statute is therefore overbroad as compared to a generic crime

of violence. As noted above, we cannot apply the modified

categorical approach because this statute is indivisible.

Second-degree murder under Washington law is not a crime

of violence under the force/elements clause of U.S.S.G.

§ 4B1.2(a)(2). 10

C. The sentencing errors were not harmless.

Even when the district court indicates it would impose

the same sentence regardless of the proper Guidelines range,

we have held that “[a] mistake in calculating the

recommended Guidelines sentencing range is a significant

procedural error that requires us to remand for

resentencing.” Munoz-Camarena, 631 F.3d at 1030. “[T]he

district court must correctly calculate the recommended

Guidelines sentence and use that recommendation as the

‘starting point and the initial benchmark.’ . . . [T]he

recommended Guidelines range must ‘be kept in mind

throughout the process.’” Id. (citations omitted). We

require that the “district court [ ] start with the recommended

Guidelines sentence, adjust upward or downward from that

point, and justify the extent of the departure from the

Guidelines sentence.” Id. (citation omitted). “A district

court’s mere statement that it would impose the same above-

Guidelines sentence no matter what the correct calculation

cannot, without more, insulate the sentence from remand,

10

Because we conclude that Vederoff’s convictions for second-

degree murder and second-degree assault do not constitute crimes of

violence, we need not determine whether accomplice liability under

Washington law is categorically broader than federal aiding and abetting

liability, under the reasoning in United States v. Valdivia-Flores,

876 F.3d 1201, 1207-09 (9th Cir. 2017), such that no Washington

conviction qualifies as a crime of violence.

UNITED STATES V. VEDEROFF 19

because the court’s analysis did not flow from an initial

determination of the correct Guidelines range.” Id. at 1031.

Here, it appears that the district court started with the

presumption that a 60-month sentence was the correct one,

and it attempted to justify it as either a downward departure

from the Guidelines calculation he accepted at sentencing or

an upward departure from the Guidelines calculation

advocated by defense counsel. Having now determined that

the proper Guideline range would be 30 to 37 months, we

cannot say that the district court’s incorrect calculation of the

proper Guideline range was harmless. The explanation

given by the district court does not explain why the court

imposed a sentence nearly double the Guideline range. Nor

does it demonstrate that the district court would impose the

same sentence if the correct Guidelines range were “kept in

mind throughout the process.” Id. at 1030 (citation omitted).

Moreover, the explanation provided by the district court

does not account for the amount or direction of the departure;

the mitigating factors discussed by the district court could

also have warranted a downward variance from the proper

Guideline range. This case must therefore be remanded for

resentencing with the correct Guidelines range in mind.

United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018)

(“The use of an incorrect starting point and the failure to

keep the proper Sentencing Guidelines range in mind as the

sentencing decision was made constituted ‘a significant

procedural error,’ and the case must be remanded for

resentencing.” (quoting Munoz-Camarena, 631 F.3d at

1030)).

SENTENCE VACATED, REMANDED FOR

RESENTENCING.