USA V. ALLEN TAGATAC, No. 21-10133 (9th Cir. 2022)
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Defendant argued that Hawai’i’s second-degree robbery statute, Haw. Rev. Stat. Section 708-841 (1986), is not divisible and sweeps too broadly to be a crime of violence because Section 708-841(1)(c) criminalizes reckless conduct. He conceded that, if the statute is divisible, his conviction under Section 708-841(1)(b) (in the course of committing theft, threatening the imminent use of force with intent to compel acquiescence) is a crime of violence.
Noting that the Supreme Court of Hawai’i has weighed in on the question, the Ninth Circuit held that the subsections in the statute describe unique elements of separate offenses, not alternative means of committing the same offense, and that the statute is therefore divisible. The court wrote that this conclusion is confirmed by the jury instructions for Defendant’s offense, and therefore rejected Defendant’s contention that because Hawai’i requires jury unanimity for various reasons, unanimity cannot establish divisibility. The court explained that even if there are some instances when unanimity may be required for other reasons, the Hawai’i courts use unique jury instructions for each subsection of the second-robbery statute, such that the jury cannot disagree on whether a defendant charged with violating subsection (b) threatened the imminent use of force with intent to compel acquiescence.
Court Description: Criminal Law. The panel affirmed a sentence in a case in which the defendant challenged his designation as a career offender under U.S.S.G.§ 4B1.1(a)(3), arguing that an earlier Hawai’i state conviction for second-degree robbery does not qualify as a crime of violence under the categorical approach in Taylor v. United States, 495 U.S. 575 (1990). The defendant argued that Hawai’i’s second-degree robbery statute, Haw. Rev. Stat. § 708-841 (1986), is not divisible and sweeps too broadly to be a crime of violence because § 708-841(1)(c) criminalizes reckless conduct. He conceded that, if the statute is divisible, his conviction under § 708-841(1)(b) (in the course of committing theft, threatening the imminent use of force with intent to compel acquiescence) is a crime of violence. Noting that the Supreme Court of Hawai’i has weighed in on the question, the panel held that the subsections in the statute describe unique elements of separate offenses, not alternative means of committing the same offense, and that the statute is therefore divisible. The panel wrote that this conclusion is confirmed by the jury instructions for the defendant’s offense, and therefore rejected the defendant’s contention that because Hawai’i requires jury unanimity for various reasons, unanimity cannot establish divisibility. The panel explained that even if there are some instances when unanimity may be required for other reasons, the Hawai’i courts use unique jury instructions for each subsection of the UNITED STATES V. TAGATAC 3 second-robbery statute, such that the jury cannot disagree on whether a defendant charged with violating subsection (b) threatened the imminent use of force with intent to compel acquiescence.
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