United States v. Door, No. 17-30165 (9th Cir. 2019)
Annotate this CaseThe Ninth Circuit held that defendant's prior conviction for felony harassment in violation of Washington law qualified as a crime of violence pursuant to the force clause. However, the panel held that the district court erred in concluding that defendant's prior conviction for second degree assault in violation of Washington law did not qualify as a crime of violence, because the offense, in the ordinary case, did not present a serious potential risk of physical injury to another. The assault statute encompassed assault with intent to commit a felony, which included the intent to commit any non-violent felony offense. Furthermore, the assault statute was not similar in kind to the crimes listed in the enumerated offenses clause. Because the assault statute was indivisible, the modified categorical approach was inapplicable. The panel remanded for resentencing.
Court Description: Criminal Law. Vacating a sentence and remanding for resentencing, the panel held that, in setting the defendant’s base offense level under U.S.S.G. § 2K2.1(a)(2), his prior Washington State conviction for felony harassment qualified as a crime of violence but his prior conviction for second degree assault did not. Consistent with United States v. Werle, 877 F.3d 879 (9th Cir. 2017), the panel held that the defendant’s 1997 conviction for felony harassment, in violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) and (2)(B), qualified as a crime of violence, as defined in U.S.S.G. § 4B1.2. Applying the categorical approach, the panel held that the conviction qualified as a crime of violence under § 4B1.2(a)’s force clause because it necessarily entailed the threatened use of violent physical force. The panel held that the district court erred in concluding that the defendant’s 2002 conviction for second degree assault, in violation of Wash. Rev. Code § 9A.36.021(1)(c), qualified as a crime of violence. Under United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the conviction did not qualify under the force clause of § 4B1.2(a). The panel held that second degree assault also did not qualify as a crime of violence under § 4B1.2(a)’s residual clause because the offense, in the ordinary case, does not present a serious UNITED STATES V. DOOR 3 potential risk of physical injury to another, and it is not similar in kind to the crimes listed in the enumerated offenses clause. The panel therefore vacated the sentence and remanded for resentencing. The panel addressed other issues in a concurrently-filed memorandum disposition.
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