United States v. Keith Studhorse, II , 883 F.3d 1198 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30299
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00087-
TOR-1
KEITH BENNETT GORDON
STUDHORSE II, AKA Keith Bennett
Studd, AKA Keith Bennett OPINION
Studhorse,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Submitted February 7, 2018 *
Seattle, Washington
Filed March 2, 2018
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. STUDHORSE
Before: MILAN D. SMITH, JR. and MARY H.
MURGUIA, Circuit Judges, and EDUARDO C.
ROBRENO, ** District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY ***
Criminal Law
The panel affirmed (1) the district court’s denial of the
defendant’s motion to dismiss a count charging him with
possession of body armor by a violent felon in violation of
18 U.S.C. §§ 931(a)(1) and 924(a)(7), and (2) its
interpretation and application of the Sentencing Guidelines.
Section 931(a) prohibits a person from possessing body
armor if he or she has been convicted of a felony that is a
“crime of violence” as defined in 18 U.S.C. § 16. The panel
held that attempted first degree murder under Washington
law constitutes a “crime of violence” under 18 U.S.C.
§ 16(a) because it requires specific intent and has as an
element an intentional, threatened, attempted, or actual use
of force.
The panel held that, for the same reasons, attempted first
degree murder under Washington law is a “crime of
violence” under USSG § 4B1.2(a).
**
The Honorable Eduardo C. Robreno, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.
***
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. STUDHORSE 3
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
George J.C. Jacobs III, Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney’s Office, Spokane, Washington; or Plaintiff-
Appellee.
OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Keith Bennett Studhorse, II,
appeals (1) the district court’s denial of his motion to dismiss
Count 2 of the indictment, which charged him with
possession of body armor by a violent felon, and (2) the
district court’s interpretation and application of the United
States Sentencing Guidelines. He argues that the district
court erred in denying his motion to dismiss and in
calculating his sentence because it improperly determined
that Studhorse’s prior Washington State conviction for
attempted first degree murder qualified as a “crime of
violence.” We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C § 3742, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2016, a two-count indictment was filed
against Defendant-Appellant Keith Bennett Studhorse, II,
charging him in one count with a violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (felon in possession of a
firearm), and in a second count with a violation of 18 U.S.C.
4 UNITED STATES V. STUDHORSE
§§ 931(a)(1) and 924(a)(7) (violent felon in possession of
body armor). Studhorse moved to dismiss Count 2 on July
8, 2016. Studhorse argued that dismissal was required
because his three relevant prior convictions under
Washington state law (for attempted first degree murder,
second degree manslaughter, and riot with a deadly weapon)
did not constitute crimes of violence as defined in 18 U.S.C.
§ 16. In its response, the Government argued that attempted
first degree murder and riot constituted crimes of violence;
it declined to address whether second-degree manslaughter
was a “crime of violence” as well.
On July 28, 2016, the district court held a hearing on
Studhorse’s motion. The court denied the motion on August
2, 2016, on the basis that attempted first degree murder is a
“crime of violence.” Studhorse then entered a plea of guilty
pursuant to a conditional plea agreement that permitted him
to later challenge the denial of his motion and his sentence.
A presentence investigation report (PSR) was prepared
in advance of Studhorse’s sentencing. The PSR relied on the
district court’s determination that Studhorse’s prior
conviction for attempted first degree murder qualified as a
“crime of violence,” and calculated that Studhorse’s base
offense level was 20, total adjusted offense level was 17, and
criminal history category was IV. This resulted in an
advisory guideline range of 37–46 months imprisonment.
At sentencing on December 7, 2016, Studhorse objected
to the PSR’s categorization of his prior conviction for
attempted first degree murder as a “crime of violence.” The
Government also objected to the PSR, arguing that
Studhorse’s two other convictions for second-degree
manslaughter and riot should be counted as crimes of
violence. Studhorse disputed this, and the district court
overruled the Government’s objections, but affirmed its
UNITED STATES V. STUDHORSE 5
holding with regard to Studhorse’s attempted first degree
murder conviction. The district court adopted the PSR’s
sentencing calculations, 1 though it ultimately varied upward
to sentence Studhorse to 84 months’ incarceration.
Studhorse timely appealed.
STANDARD OF REVIEW
We review de novo both the district court’s denial of
Studhorse’s motion to dismiss Count 2 of the indictment, see
United States v. Gomez-Rodriguez, 96 F.3d 1262, 1264 (9th
Cir. 1996) (en banc), and its interpretation and application of
the Sentencing Guidelines, e.g., United States v. Calderon
Espinosa, 569 F.3d 1005, 1007 (9th Cir. 2009).
ANALYSIS
I. Attempted First Degree Murder Under Washington
Law Constitutes a “Crime of Violence” Under
18 U.S.C. § 16 2
1
The PSR and the district court used the 2015 Guidelines to
preclude a possible Ex Post Facto Clause challenge to its sentence. See
Beckles v. United States, 137 S. Ct. 886, 895 (2017) (affirming that an
ex post facto challenge could be brought if a retroactive change in the
Guidelines created a significant risk of a higher sentence).
2
On October 2, 2017, the Supreme Court heard argument in
Sessions v. Dimaya, No. 15-1498, which presents the question of
whether 18 U.S.C. § 16(b), as incorporated into the Immigration and
Nationality Act’s provisions governing an alien’s removal from the
United States, is unconstitutionally vague. See Lynch v. Dimaya, 137 S.
Ct. 31 (2016) (granting petition for writ of certiorari); Dimaya v. Lynch,
803 F.3d 1110, 1111 (9th Cir. 2015) (holding that § 16(b) is
unconstitutionally vague). Because the Court has not yet published an
opinion in Dimaya, and the constitutionality of § 16(b) is unresolved as
a result, we focus our attention on whether Washington’s attempted first
6 UNITED STATES V. STUDHORSE
18 U.S.C. § 931(a) prohibits a person from
“purchas[ing], own[ing], or possess[ing] body armor” if he
or she “has been convicted of a felony that is . . . a crime of
violence (as defined in section 16).” Id. In turn, 18 U.S.C.
§ 16 defines a “crime of violence” as
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that
physical force against the person or property
of another may be used in the course of
committing the offense.
Id. Thus, to be convicted under § 931, a person must have
previously been convicted of at least one felony that meets
§ 16’s “crime of violence” definition.
The felony at issue in this case is attempted first degree
murder. On August 11, 1994, Studhorse pleaded guilty in
Spokane County Superior Court to attempted first degree
murder. In Washington, “‘[a]ttempted murder’ is not a
crime listed in the statutes. Rather, criminal attempt and
murder combine to form attempted murder.” State v.
Mannering, 75 P.3d 961, 964 (Wash. 2003) (en banc).
Washington’s first degree murder statute, Revised Code of
Washington section 9A.32.030(1), dictates that a person
commits murder in the first degree when:
degree murder statute meets the definition in § 16(a), as did the district
court below.
UNITED STATES V. STUDHORSE 7
(a) With a premeditated intent to cause the
death of another person, he or she causes the
death of such person or of a third person; or
(b) Under circumstances manifesting an
extreme indifference to human life, he or she
engages in conduct which creates a grave risk
of death to any person, and thereby causes the
death of a person; or
(c) He or she commits or attempts to commit
the crime of either (1) robbery in the first or
second degree, (2) rape in the first or second
degree, (3) burglary in the first degree,
(4) arson in the first or second degree, or
(5) kidnapping in the first or second degree,
and in the course of or 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
....
Id. Washington’s criminal attempt statute, Revised Code of
Washington section 9A.28.020(1), specifies that “[a] person
is guilty of an attempt to commit a crime if, with intent to
commit a specific crime, he or she does any act which is a
substantial step toward the commission of that crime.” Id.
Thus, “attempted murder occurs when a person takes a
substantial step in causing another[] person’s death with the
intent to cause that person’s death.” State v. Mannering,
48 P.3d 367, 370 (Wash. Ct. App. 2002), aff’d, 75 P.3d 961(Wash. 2003).
To determine whether Studhorse’s conviction under
these statutes satisfies § 16, we first employ the familiar
8 UNITED STATES V. STUDHORSE
“‘categorical approach’ to determine whether the state
offense matches the ‘generic’ federal definition of . . . a
crime of violence under 18 U.S.C. § 16(a) or (b).” Ramirez
v. Lynch, 810 F.3d 1127, 1130–31 (9th Cir. 2016) (quoting
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). This
involves “comparing the elements of the statute of
conviction with a federal definition of the crime to determine
whether conduct proscribed by the statute is broader than the
generic federal definition.” Id. at 1131 (alteration omitted)
(quoting Rodriguez-Castellon v. Holder, 733 F.3d 847, 853
(9th Cir. 2013)). In other words, we ignore the facts of the
case and simply “line[] up [the] crime’s elements alongside
those of the generic offense and see[] if they match.” Mathis
v. United States, 136 S. Ct. 2243, 2248 (2016). In doing so,
“we must presume that the conviction ‘rested upon nothing
more than the least of the acts’ criminalized.” Moncrieffe,
569 U.S. 190–91 (alterations omitted) (quoting Johnson v.
United States, 559 U.S. 133, 137 (2010) [hereinafter
Johnson I]); see also United States v. Lopez-Solis, 447 F.3d
1201, 1206 (9th Cir. 2006) (holding that “even the least
egregious conduct the statute covers must qualify” for there
to be a categorical match). We will find a statute over-
inclusive where it “criminalizes both conduct that does and
conduct that does not qualify” as a “crime of violence.”
United States v. Werle, 815 F.3d 614, 618 (9th Cir. 2016).
We have previously determined that the near-identical
language of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B)(i), imposes two requirements for a
categorical match: “First, the ‘physical force’ used must be
‘violent force,’ or ‘force capable of causing physical pain or
injury to another person.’” United States v. Dixon, 805 F.3d
1193, 1197 (9th Cir. 2015) (quoting Johnson I, 559 U.S. at
140). “Second, the use of force must be intentional, not just
reckless or negligent.” Id.; see also Leocal v. Ashcroft,
UNITED STATES V. STUDHORSE 9
543 U.S. 1, 9–11 (2004) (explaining that § 16 encompassed
“a category of violent, active crimes” and thus required “a
higher degree of intent than negligent or merely accidental
conduct”). Here, Studhorse’s Washington conviction for
attempted first degree murder satisfies both requirements.
A. Attempted First Degree Murder Under
Washington Law Requires Specific Intent 3
Washington law is clear with regard to the two elements
of criminal attempt: “intent to commit the base crime and a
substantial step toward doing so.” E.g., State v. Johnson,
270 P.3d 591, 596 (Wash. 2012) (en banc). “It is not
necessary that the base crime contain the same mental state
element as the crime of attempt in order to prosecute the
attempt crime.” Id. Regardless of the intent required to
commit the underlying crime, “[t]he mental state required
for criminal attempt (specific intent) is the highest mental
state.” Id. Thus, Studhorse’s conviction for attempted first
degree murder had a mens rea requirement of specific intent.
3
Studhorse did not make an overbreadth argument before the district
court regarding the mens rea required for attempted first degree murder
under Washington law. When he appeared to raise the argument for the
first time on appeal, the Government responded with a claim that the new
argument was waived and beyond the court’s consideration because
Studhorse had not shown good cause for his failure to raise it earlier. We
disagree. Studhorse argued below that his attempted first degree murder
conviction was not a “crime of violence” as defined by § 16, and “it is
claims that are deemed waived or forfeited, not arguments.” United
States v. Walton, No. 15-50358, 2018 WL 650979, at *1 (9th Cir. Feb.
1, 2018) (quoting United States v. Pallares-Galan, 359 F.3d 1088, 1095
(9th Cir. 2004)). The Government argued this purely legal question
before the sentencing court as well as before this court on appeal. We
therefore review it de novo here. See id.10 UNITED STATES V. STUDHORSE
B. Attempted First Degree Murder Under
Washington Law Has as an Element an
Intentional Threatened, Attempted, or Actual Use
of Force
A Washington attempted first degree murder conviction
requires that a defendant have taken “a substantial step in
causing another’s person’s death with the intent to cause that
person’s death.” Mannering, 48 P.3d at 370. Studhorse
argues that section 9A.32.030 is overbroad with regard to its
actus reus requirement “because any slight act in furtherance
of the crime suffices.” However, this is no longer the law in
Washington. Before 1975, Washington law recognized that
“slight acts in furtherance of a scheme” could “establish the
necessary element of overtness” where intent was “clearly
shown.” State v. Goddard, 447 P.2d 180, 183 (Wash. 1968).
However, Washington changed its attempt statute in 1975,
replacing the prior statute’s “overt act” requirement with the
present statute’s “substantial step” requirement. State v.
Workman, 584 P.2d 382, 387 (Wash. 1978) (en banc). This
heightened Washington’s attempt requirements. Now,
though a “slight act” still could qualify as a sufficiently
substantial step, it can only meet this standard if it is
“strongly corroborative of the actor’s criminal purpose.” Id.
at 388; see also, e.g., In re Borrero, 167 P.3d 1106, 1109
(Wash. 2007) (en banc). “Mere preparation to commit a
crime” is not sufficient. E.g., State v. Townsend, 57 P.3d
255, 262 (Wash. 2002) (en banc).
In light of this change in Washington’s law, we easily
conclude that Washington attempted first degree murder
falls within § 16(a)’s definition of a “crime of violence.” We
find this conclusion to be consistent with Washington case
law affirming convictions for attempted first degree murder
that were premised on the use, attempted use, or threatened
UNITED STATES V. STUDHORSE 11
use of physical force. See, e.g., State v. Vangerpen, 888 P.2d
1177, 1185 (Wash. 1995) (en banc) (affirming that “act of
reaching quickly toward the loaded, cocked, concealed gun
is strongly corroborative of an attempt to fire the gun with
an intent to end the officer’s life”); State v. Price, 14 P.3d
841, 845 (Wash. Ct. App. 2000) (affirming conviction for
two counts of attempted first degree murder—one as to each
of two victims—where defendant fired a single shot into a
car containing those victims). We note that Studhorse has
not cited any case indicating that a “slight act” could ever be
“strongly corroborative” of one person’s intent to murder
another person without also involving the use, attempted use,
or threatened use of physical force against the person of
another. 4
Our holding that there is no such case is also in keeping
with the Supreme Court’s reasoning in United States v.
Castleman, 134 S. Ct. 1405 (2014). There, the Court
considered the “crime of violence” definition of § 922(g)(9),
which required, in relevant part, that an offense have “as an
element, the use or attempted use of physical force.” Id. at
4
Studhorse relies exclusively on the three Washington state court
cases that the district court rejected below. See State v. Carter, 109 P.3d
823 (Wash. 2005) (en banc); State v. Leech, 790 P.2d 160 (Wash. 1990)
(en banc); State v. Dudrey, 635 P.2d 750 (Wash. Ct. App. 1981).
However, these cases lend no support to Studhorse’s claims. Because
they concern felony murder convictions, they are entirely inapposite
here. Studhorse was convicted of attempted first degree murder, which
cannot be premised on felony murder under Washington law. See In re
Richey, 175 P.3d 585, 587 (Wash. 2008) (en banc) (affirming that
Washington law recognizes no crime of attempted felony murder
because such a crime illogically would “burden[] the State with the
necessity of proving that the defendant intended to commit a crime that
does not have an element of intent”). The fact that Studhorse was
convicted of an intentional crime puts him in a different position from
the defendants in Carter, Leech, and Dudrey.
12 UNITED STATES V. STUDHORSE
1409 (quoting § 921(a)(33)(A)(ii)). The defendant had
moved to dismiss a charge brought under this provision,
arguing that his Tennessee conviction for “having
‘intentionally or knowingly caused bodily injury to’ the
mother of his child,” was overbroad because a person could
cause bodily injury without violent contact, such as by
tricking his victim into drinking poison. Id. (alterations
omitted) (quoting Tenn. Code Ann. § 39-13-111(b)).
The Court rejected this contention. The Court held first
that “the knowing or intentional causation of bodily injury
necessarily involves the use of physical force.” Id. at 1414.
In support of this holding, it reiterated its Johnson I
explanation that “‘physical force’ is simply ‘force exerted by
and through concrete bodies,’ as opposed to ‘intellectual
force or emotional force.’” Id. (quoting Johnson I, 559 U.S.
at 138). And it noted that “the common-law concept of
‘force’ encompasses even its indirect application.” Id. The
Court next held that “the knowing or intentional application
of force is a ‘use’ of force.” Id. at 1415. Using the example
of poison, the Court explained that “use of force” is not the
sprinkling of the poison onto a victim’s food, but rather “is
the act of employing poison knowingly as a device to cause
physical harm.” Id. The fact “[t]hat the harm occurs
indirectly, rather than directly (as with a kick or punch), does
not matter.” Id. After all, if the opposite were true, “one
could say that pulling the trigger on a gun is not a ‘use of
force’ because it is the bullet, not the trigger, that actually
strikes the victim.” Id.
Subsequently, our circuit has applied Castleman’s
reasoning in the context of 18 U.S.C. § 16(a). For example,
in Cornejo-Villagrana v. Sessions, 870 F.3d 1099 (9th Cir.
2017), we considered whether an Arizona class one
misdemeanor domestic violence assault conviction was a
UNITED STATES V. STUDHORSE 13
“crime of violence” under 18 U.S.C. § 16(a). Id. at 1101,
1105–06. We noted that the Castleman Court had
“determined that ‘physical force’ should be understood to
mean ‘violent force—that is, force capable of causing
physical pain or injury to another person,’” such that
“‘violent force’ is present when there is ‘physical injury’ for
purposes of a ‘crime of violence.’” Id. at 1105–06 (citations
omitted) (quoting Johnson I, 559 U.S. at 140). We then
found this determination to be in keeping with our
precedents finding threat and assault statutes to “‘necessarily
involve the use of violent, physical force,’ so long as they
are in the context of knowing and intentional behavior.” Id.
at 1106 (quoting United States v. Calvillo-Palacios,
860 F.3d 1285, 1290 (9th Cir. 2017)); see also Calvillo-
Palacios, 860 F.3d at 1290–91 (collecting cases); United
States v. De La Fuente, 353 F.3d 766, 770–71 (9th Cir. 2003)
(concluding that a threat of anthrax poisoning constituted a
“threatened use of physical force” because the defendant’s
“letters clearly threatened death by way of physical contact
with anthrax spores” and anthrax’s “physical effect on the
body is no less violently forceful than the effect of a kick or
blow”). Thus, we held that “the ‘use of physical force’ may
not be dissociated from intentionally or knowingly causing
physical injury.” Cornejo-Villagrana, 870 F.3d at 1106.
Studhorse has given us no reason to depart from these
precedents here. Studhorse was convicted of having taken a
substantial step toward causing the death of another with the
specific intent to cause that person’s death. Castleman and
its progeny make clear that such an intentional act, “strongly
corroborative” as it must have been of Studhorse’s purpose
to cause death, necessarily involved the use, attempted use,
or threatened use of force. Even if Studhorse took only a
slight, nonviolent act with the intent to cause another’s
death, that act would pose a threat of violent force sufficient
14 UNITED STATES V. STUDHORSE
to satisfy § 16(a). See Cornejo-Villagrana, 870 F.3d at
1105–06; De La Fuente, 353 F.3d at 770–71; see also James
v. United States, 550 U.S. 192, 208 (2007) (noting in the
ACCA context that attempted murder is a “prototypically
violent crime”), overruled on other grounds by Johnson v.
United States, 135 S. Ct. 2251 (2015). Thus, Studhorse’s
attempted first degree murder conviction had as an element
the intentional use, threatened use, or attempted use of
physical force against a person, and qualifies as a “crime of
violence” under § 16(a).
II. Attempted First Degree Murder Under Washington
Law Is a “Crime of Violence” Under United States
Sentencing Guidelines § 4B1.2(a)
Section 2K2.1 of the United States Sentencing
Guidelines applies to Studhorse’s conviction for a violation
of 18 U.S.C. § 922(g)(1). This guideline mandates that
Studhorse’s base offense level was 20 because he was
previously convicted of one prior felony conviction for a
“crime of violence.” See U.S. Sentencing Comm’n,
Guidelines Manual, § 2K2.1(a)(4)(A) (Nov. 2015).
The commentary to § 2K2.1 indicates that the term
“‘crime of violence’ has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2.” USSG § 2K2.1, comment. (n.1).
Section 4B1.2(a) defines the term 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
UNITED STATES V. STUDHORSE 15
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
Id. § 4B1.2(a). Application Note 1 of the Commentary to
§ 4B1.2 elaborates that the category of offenses qualifying
for the “crime of violence” designation includes “the
offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” Id. § 4B1.2, comment. (n.1). It
also specifies that the “crime of violence” category “includes
murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling.” Id.
This commentary plainly undercuts Studhorse’s
challenge to his sentence. However, Studhorse argues we
should give it no weight. In a convoluted argument based in
administrative law and reliant upon pre-Beckles, out-of-
circuit cases, Studhorse asserts that the commentary is not
authoritative because it “does not interpret an intelligible
textual provision” of USSG § 4B1.2 itself and thus, “under
the governing principles of administrative law, . . . is not
controlling.”
This argument is a nonstarter. The Supreme Court has
held “that commentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
For the reasons outlined in Section I above, defining a
“crime of violence” to include attempted first degree murder
is not inconsistent with the guideline’s text, which requires
16 UNITED STATES V. STUDHORSE
a “crime of violence” to have as an element the use,
attempted use, or threatened use of physical force against the
person of another. Studhorse’s argument focuses on the
inscrutability of § 4B1.2(a)(2), but that focus is misplaced.
The commentary is authoritative and clarifies that
Studhorse’s Washington attempted first degree murder
conviction is a “crime of violence” pursuant to § 4B1.2(a).
Indeed, even if the commentary were not controlling, our
conclusion would be the same. An attempted first degree
murder conviction under Washington law has as an element
the use, attempted use, or threatened use of physical force
against the person of another. Thus, for the reasons outlined
in Section I above, it qualifies as a “crime of violence”
according to § 4B1.2(a)(1)’s plain text.
CONCLUSION
For the forgoing reasons, we affirm the district court’s
denial of Studhorse’s motion to dismiss Count 2 of the
indictment and its interpretation and application of the
United States Sentencing Guidelines.
AFFIRMED.