United States v. Kenneth Door , 917 F.3d 1146 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30165
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-05126-RBL-1
KENNETH RANDALE DOOR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 7, 2018
Seattle, Washington
Filed March 12, 2019
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 UNITED STATES V. DOOR
SUMMARY*
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
*
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. 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.
COUNSEL
Carlton Gunn (argued), Pasadena, California, for Defendant-
Appellant.
Helen J. Brunner (argued), First Assistant United States
Attorney; Annette L. Hayes, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
OPINION
CHRISTEN, Circuit Judge:
Defendant Kenneth Randale Door appeals the sentence
the district court imposed after he was convicted of several
offenses in 2014. At his 2017 sentencing hearing, the district
court determined that Door’s base offense level should be 24
pursuant to United States Sentencing Guideline (U.S.S.G.)
§ 2K2.1(a)(2) after concluding that Door’s prior Washington
state convictions for second-degree assault and felony
harassment qualify as crimes of violence. Door contends
these offenses do not constitute crimes of violence and that
his offense level was thus calculated incorrectly. Consistent
4 UNITED STATES V. DOOR
with United States v. Werle, 877 F.3d 879, 884 (9th Cir.
2017), we hold that Door’s 1997 conviction for felony
harassment, in violation of the Revised Code of Washington
(Wash. Rev. Code) §§ 9A.46.020(1)(a)(i) and (2)(b), qualifies
as a crime of violence. Door’s argument to the contrary
disregards that the framework for the “crime of violence”
analysis differs depending on whether the prior offense is
alleged to constitute a crime of violence pursuant to the force
clause, the enumerated offenses clause, or the residual clause
of U.S.S.G. § 4B1.2(a). The district court did err, however,
in concluding that Door’s 2002 conviction for second-degree
assault, in violation of Wash. Rev. Code. § 9A.36.021(1)(c),
qualifies as a crime of violence. See United States v.
Robinson, 869 F.3d 933, 941 (9th Cir. 2017); see also United
States v. Vederoff, 914 F.3d 1238, 1244–46 (9th Cir. 2019).
Accordingly, we vacate Door’s sentence and remand for
resentencing.1
FACTUAL AND PROCEDURAL BACKGROUND
A search of Door’s home in 2011 led to the discovery of
two handguns, some magazines loaded with ammunition, two
military grade ballistic vests (body armor), an explosive
device known as a “seal bomb,” two digital scales, drug
packaging materials, and two drug pipes containing
methamphetamine residue. These discoveries led to Door’s
indictment in 2012; he was charged with being a Felon in
1
Door also contends that he was improperly convicted of possessing
body armor, challenges the application of an enhancement for possessing
a firearm in connection with another felony, and argues that his case
should be reassigned if remanded. In a concurrently filed memorandum
disposition, we affirm the body armor conviction and sentencing
enhancement, and decline to reassign the case on remand.
UNITED STATES V. DOOR 5
Possession of a Firearm, a Violent Felon in Possession of
Body Armor, and a Felon in Possession of an Explosive. In
2014, a jury convicted Door of each count. Door received a
300-month sentence, but for reasons not pertinent to this
appeal, we vacated Door’s sentence and remanded for
resentencing.
On remand, the probation officer recommended a base
offense level of 24 because the officer concluded that Door’s
prior Washington state convictions for second-degree assault
and felony harassment constitute crimes of violence. See
U.S.S.G. § 2K2.1(a)(2) (providing that a base offense level of
24 applies “if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense”). A total offense level of 32 and Door’s
criminal history category of VI yielded a guideline
imprisonment range of 210 to 262 months. The probation
officer recommended 276 months of imprisonment due to
Door’s extensive criminal history. This represented the
maximum sentence for each count, served consecutively.
Door argued that his prior convictions for second-degree
assault and felony harassment were not “crime[s] of violence”
as defined in U.S.S.G. § 4B1.2, and thus his base offense
level should only be 14.
At the resentencing hearing held in 2017, the district court
ruled that Door’s prior convictions for second-degree assault
and felony harassment qualified as crimes of violence
pursuant to U.S.S.G. § 4B1.2. The court concluded that Door
had a total offense level of 32 and imposed a sentence of
276 months.
6 UNITED STATES V. DOOR
ANALYSIS
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review de novo whether a state-law crime constitutes a crime
of violence under the [Federal Sentencing] Guidelines.”
Robinson, 869 F.3d at 936.
To determine whether a prior conviction qualifies as a
crime of violence, we apply the categorical approach first
outlined in Taylor v. United States, 495 U.S. 575 (1990). The
categorical approach requires courts to compare the elements
of the statute of conviction with the federal definition of
“crime of violence” to determine whether the statute of
conviction criminalizes a broader range of conduct than the
federal definition captures. United States v. Edling, 895 F.3d
1153, 1155 (9th Cir. 2018). The 2013 Sentencing Guidelines
define the term “crime of violence” as follows:
[A]ny 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
[known as the force clause or the
elements clause], or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives
[known as the enumerated offenses
clause], or otherwise involves conduct
that presents a serious potential risk of
UNITED STATES V. DOOR 7
physical injury to another [known as
the residual clause].
U.S.S.G. § 4B1.2(a) (2013).2
When determining whether a prior conviction constitutes
a crime of violence, the precise inquiry differs depending on
whether the offense is alleged to qualify as a crime of
violence pursuant to the force clause, the enumerated offenses
clause, or the residual clause. See, e.g., Edling, 895 F.3d at
1156–58 (determining whether prior convictions qualified as
crimes of violence pursuant to the force clause and the
enumerated offenses clause); United States v. Adkins,
883 F.3d 1207, 1213–15 (9th Cir. 2018) (determining
whether prior convictions qualified as crimes of violence
pursuant to the residual clause). An offense constitutes a
“crime of violence” if it qualifies under any one of the three
clauses. See Edling, 895 F.3d at 1155. Throughout this
analysis, we “presume that the conviction ‘rested upon
[nothing] more than the least of th[e] acts’ criminalized” by
the statute of conviction. Moncrieffe v. Holder, 569 U.S. 184,
191–92 (2013) (alterations in original) (quoting Johnson v.
United States, 559 U.S. 133, 137 (2010)).
2
The relevant Sentencing Guidelines are those in effect on the date
of the defendant’s first sentencing hearing. See 18 U.S.C. § 3742(g)(1).
Door’s first sentencing hearing occurred when the 2013 Guidelines were
in effect. Although the residual clause was later omitted from the
Guidelines’ definition of a crime of violence, we do not apply the
amendment retroactively because it substantively changed the Guidelines.
United States v. Adkins, 883 F.3d 1207, 1211–12 (9th Cir. 2018).
8 UNITED STATES V. DOOR
A. Applying the Categorical Analysis to the
Sentencing Guidelines’ Force Clause, Enumerated
Offenses Clause, and Residual Clause
To determine whether a prior conviction qualifies
pursuant to the force clause, the question is whether the crime
of conviction “has as an element the use or threatened use of
physical force against the person of another, with ‘physical
force’ understood to mean in this context ‘violent force—that
is, force capable of causing physical pain or injury to another
person.’” Edling, 895 F.3d at 1156 (quoting Johnson,
559 U.S. at 140). If the crime of conviction necessarily
entails the use or threatened use of violent physical force, it
is considered a categorical match for a crime of violence
pursuant to the force clause of § 4B1.2(a)(1), and the inquiry
ends. See id.; see also Stokeling v. United States, 139 S. Ct.
544, 554–55 (2019).
A prior offense constitutes a crime of violence pursuant
to the enumerated offenses clause if the elements of one of
the generic federal crimes listed in that clause fully subsume
the elements of the crime of conviction. See Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016); United States v.
Peterson, 902 F.3d 1016, 1021–22 (9th Cir. 2018). A generic
federal crime is defined by looking to the common law, the
Model Penal Code, treatises, and the laws of other states. See
Vederoff, 914 F.3d at 1245; United States v. Esparza-
Herrera, 557 F.3d 1019, 1022–23 (9th Cir. 2009). If the
crime of conviction falls within the generic federal
definition—meaning it does not punish a broader range of
conduct than the generic offense—the conviction qualifies as
a crime of violence. See, e.g., Mathis, 136 S. Ct. at 2248.
UNITED STATES V. DOOR 9
We use a two-part test to assess whether an offense is
categorically a crime of violence pursuant to the residual
clause in § 4B1.2(a)(2). Adkins, 883 F.3d at 1213. “First, the
‘conduct encompassed by the elements of the offense, in the
ordinary case, must present a serious potential risk of
physical injury to another.’” Id. (quoting United States v.
Park, 649 F.3d 1175, 1177–78 (9th Cir. 2011)). “Second, the
prior offense must be ‘roughly similar, in kind as well as in
degree of risk posed’” to the crimes listed in the enumerated
offenses clause. Id. (quoting Park, 649 F.3d at 1178). To
determine whether the offense is “similar in kind” to the
listed crimes, we consider “whether the predicate offense
involves ‘purposeful, violent, and aggressive conduct.’” Id.(quoting Begay v. United States, 553 U.S. 137, 145 (2008)).
Both criteria must be satisfied for a prior offense to constitute
a crime of violence pursuant to the residual clause of
§ 4B1.2(a)(2). Id.
If the statute of conviction does not qualify as a
categorical match pursuant to the force clause, the
enumerated offenses clause, or the residual clause, the court
considers whether the statute of conviction’s elements are
divisible. See, e.g., Edling, 895 F.3d at 1156, 1159; Adkins,
883 F.3d at 1215; Robinson, 869 F.3d at 938. A statute is
divisible if it “list[s] elements in the alternative, and thereby
define[s] multiple crimes.” Mathis, 136 S. Ct. at 2249. If the
statute of conviction is not a categorical match and is
indivisible, it is not a crime of violence. See id. at 2248–49.
If the statute of conviction is not a categorical match and is
divisible, then the court applies the modified categorical
approach and “looks to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements,
a defendant was convicted of.” Id. at 2249 (citing Shepard v.
10 UNITED STATES V. DOOR
United States, 544 U.S. 13, 26 (2005)). We then apply the
force clause, the enumerated offenses clause, or the residual
clause analysis to the specific crime of conviction to
determine whether it is a crime of violence. See id.B. Door’s Prior Conviction for the Washington
Crime of Felony Harassment Qualifies as a Crime
of Violence Pursuant to the Force Clause.
Door was convicted in 1997 of felony harassment in
violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) and
(2)(b) for “threatening to kill” a person.3 We previously
3
At the time of Door’s conviction in 1997, the Washington
harassment statute provided the following:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly
threatens:
(i) To cause bodily injury in the future to the
person threatened or to any other person; or
(ii) To cause physical damage to the property
of a person other than the actor; or
(iii) To subject the person threatened or any
other person to physical confinement or
restraint; or
(iv) Maliciously to do any other act which is
intended to substantially harm the person
threatened or another with respect to his or her
physical or mental health or safety; and
UNITED STATES V. DOOR 11
analyzed this statute in Werle, and held that a conviction
pursuant to the “threat to kill” subsection of the statute
constitutes a crime of violence pursuant to the force clause of
§ 4B1.2(a)(1).4 Werle, 877 F.3d at 883–84. Because a
conviction pursuant to Wash. Rev. Code § 9A.46.020(2)(b)
requires that a defendant be found guilty of knowingly
threatening to kill a person, this offense necessarily entails
the threatened use of violent physical force against another
person, as required by § 4B1.2(a)(1). Id. Thus, Door’s
(b) The person by words or conduct places the
person threatened in reasonable fear that the threat
will be carried out.
(2) A person who harasses another is guilty of a gross
misdemeanor punishable under chapter 9A.20 RCW,
except that the person is guilty of a class C felony if
either of the following applies:
(a) The person has previously been convicted in
this or any other state of any crime of harassment,
as defined in RCW 9A.46.060, of the same victim
or members of the victim’s family or household or
any person specifically named in a no-contact or
no-harassment order; or
(b) the person harasses another person under subsection
(1)(a)(i) of this section by threatening to kill the
person threatened or any other person.
Wash. Rev. Code § 9A.46.020.
4
In Werle, we assessed the amended version of Wash. Rev. Code
§ 9A.46.020. 877 F.3d at 882. Although Door’s conviction occurred prior
to the statutory amendment, the relevant language in the earlier version of
the felony harassment statute is substantially the same as the amended
version reviewed in Werle.
12 UNITED STATES V. DOOR
conviction for the Washington crime of felony harassment
qualifies as a crime of violence for sentencing purposes.
Door contends that we are not bound by Werle’s holding,
observing that in Werle, the defendant never argued his prior
Washington felony harassment conviction failed to qualify as
a crime of violence on account of Washington’s version of
aiding and abetting, which is broader than the federal
definition of aiding and abetting. As Door’s argument goes,
because every Washington criminal statute incorporates
aiding and abetting, all Washington criminal statutes are
overbroad, and therefore all Washington state convictions fail
to qualify as crimes of violence—an argument inspired by
United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir.
2017). Door’s argument, however, overlooks the analytical
difference between the force clause and the enumerated
offenses clause of U.S.S.G. § 4B1.2(a).
In Valdivia-Flores, this court assessed whether a
conviction for violating a Washington drug-trafficking law,
Wash. Rev. Code § 69.50.401, constituted an “aggravated
felony” for purposes of the Immigration and Nationality Act
(INA). Valdivia-Flores, 876 F.3d at 1206. Applying
Taylor’s categorical approach, we considered “whether the
state statute defining the crime of conviction categorically
fit[] within the generic federal definition of a corresponding
aggravated felony.” Id. (quoting Roman-Suaste v. Holder,
766 F.3d 1035, 1038 (9th Cir. 2014)). Valdivia-Flores’s
crime of conviction was overbroad because: (1) aiding and
abetting is included in every Washington criminal statute;
(2) Washington defines aiding and abetting more broadly than
federal law because it merely requires knowledge, whereas
federal law requires a mens rea of specific intent; and
(3) accomplice and principal liability are indivisible under
UNITED STATES V. DOOR 13
Washington law. Id. at 1207–10. Concluding that Valdivia-
Flores’s prior offense did not qualify as an “aggravated
felony,” we observed that it may be that “no Washington state
conviction can serve as an aggravated felony at all.” Id. at
1209–10.
Door’s reliance on Valdivia-Flores is misplaced. The
categorical analysis in Valdivia-Flores involved comparing
the elements of the Washington drug trafficking crime with
the generic federal offense of drug trafficking because “drug
trafficking” is listed in the INA as an “aggravated felony.”
See id. at 1206–07. In other words, the categorical analysis
employed in Valdivia-Flores mirrors the inquiry under the
enumerated offenses clause of U.S.S.G. § 4B1.2(a)(2).
Werle, on the other hand, held that a prior conviction for
Washington felony harassment constitutes a crime of violence
pursuant to the force clause of § 4B1.2(a)(1). Because a
conviction for violating Wash. Rev. Code § 9A.46.020(2)(b)
necessarily entails the threatened use of violent physical
force, it qualifies as a crime of violence pursuant to the force
clause, and our inquiry ends there. We need not compare the
elements of the crime of conviction with the elements of the
generic federal crime when analyzing whether an offense
qualifies as a crime of violence pursuant to the force clause
of § 4B1.2(a). Compare Peterson, 902 F.3d at 1016,
1021–22, with Edling, 895 F.3d at 1156–58. Valdivia-Flores
is consistent with Werle.
14 UNITED STATES V. DOOR
C. Door’s Prior Conviction for the Washington
Crime of Second-Degree Assault Does Not Qualify
as a Crime of Violence.
Door was convicted in 2002 of second-degree assault in
violation of Wash. Rev. Code § 9A.36.021(1)(c).5 In
Robinson, we held that Washington’s crime of second-degree
assault did not qualify as a crime of violence pursuant to the
5
At the time of Door’s conviction in 2002, the Washington second-
degree assault statute provided the following:
(1) 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 be the
equivalent of that produced by torture.
Wash. Rev. Code § 9A.36.021(1).
UNITED STATES V. DOOR 15
force clause of U.S.S.G. § 4B1.2(a)(1).6 869 F.3d at 937–38.
However, Robinson did not address whether second-degree
assault constitutes a crime of violence pursuant to the residual
clause of § 4B1.2(a)(2).7
Applying the two-part residual clause test, we hold that
Wash. Rev. Code § 9A.36.021(1) is not a crime of violence
because the offense, in the ordinary case, does not “present a
serious potential risk of physical injury to another.” Adkins,
883 F.3d at 1213 (quoting Park, 649 F.3d at 1177–78). The
Washington second-degree assault statute encompasses
assault with intent to commit a felony. Wash. Rev. Code
§ 9A.36.021(1)(e). This includes the intent to commit any
non-violent felony offense. The “assault” may also be non-
violent because Washington defines assault broadly to
include “an intentional touching . . . that is harmful or
offensive regardless of whether any physical injury is done to
the person.” State v. Smith, 154 P.3d 873, 875 (Wash. 2007)
(en banc); see also Robinson, 869 F.3d at 938 n.7. Thus, a
defendant may violate Wash. Rev. Code § 9A.36.021(1)(e) in
6
In Robinson, we assessed the amended version of Wash. Rev. Code
§ 9A.36.021(1). 869 F.3d at 937 n.6. The statute was amended after
Door’s conviction to include a seventh subsection, (1)(g) which prohibits
“[a]ssaults . . . by strangulation or suffocation.” Id.
7
Robinson also did not address the enumerated offenses clause. To
the extent the government argues that second-degree assault qualifies as
a crime of violence pursuant to the enumerated offenses clause, we decline
to address this argument, raised for the first time on appeal. See United
States v. Fomichev, 899 F.3d 766, 770 (9th Cir. 2018), as amended by
909 F.3d 1078 (9th Cir. 2018). Further, the argument is foreclosed by
Vederoff. See Vederoff, 914 F.3d at 1246.
16 UNITED STATES V. DOOR
a way that poses no serious risk of physical injury to others.8
Because Door “could have been convicted on the basis of
conduct that did not present a serious risk of physical injury
to another,” a prior conviction for Washington second-degree
assault does not qualify as a crime of violence. See United
States v. Simmons, 782 F.3d 510, 519 (9th Cir. 2015) (quoting
United States v. Kelly, 422 F.3d 889, 893 (9th Cir. 2005)); see
also United States v. Lee, 821 F.3d 1124, 1128–29 (9th Cir.
2016) (holding that California’s crime of battery committed
against a custodial officer does not qualify as a crime of
violence pursuant to the residual clause because “the least
touching may constitute battery” (quoting People v. Mesce,
60 Cal. Rptr. 2d 745, 756 (Cal. Ct. App. 1997)).
Wash. Rev. Code § 9A.36.021(1) also fails to satisfy the
second part of the residual clause test because it is not
“similar in kind” to the crimes listed in the enumerated
offenses clause, which typically involve “purposeful, violent,
and aggressive conduct.” Adkins, 883 F.3d at 1213 (quoting
Begay, 553 U.S. at 145). As discussed, the Washington crime
of second-degree assault can be committed by offensive
touching, see Smith, 154 P.3d at 875, which would not
involve “violent” or “aggressive” conduct.
The Washington second-degree assault statute is
indivisible, thus the modified categorical approach is
inapplicable. Robinson, 869 F.3d at 941. The district court
erred by concluding that Door’s prior second-degree assault
conviction qualifies as a crime of violence pursuant to the
residual clause.
8
For example, a defendant may be convicted of assault with intent to
commit a felony for touching a minor’s body in a sexual manner. See
Robinson, 869 F.3d at 938 n.7.
UNITED STATES V. DOOR 17
D. Remand is Required
The Sentencing Guidelines direct that a base offense level
of 24 applies if the defendant has two or more felony
convictions that qualify as a “crime of violence.” U.S.S.G.
§ 2K2.1(a)(2). A mistake in calculating the Guidelines
sentencing range generally requires us to remand for
resentencing. United States v. Bankston, 901 F.3d 1100, 1107
(9th Cir. 2018). Door’s conviction for the Washington crime
of felony harassment qualifies as a crime of violence, but the
district court erred in holding that Door’s conviction for the
Washington crime of second-degree assault constitutes a
crime of violence. Because Door only had one conviction
that qualified as a crime of violence, his base offense level
should have been 20. See U.S.S.G. § 2K2.1(a)(4). The
district court therefore erred in calculating Door’s base
offense level and remand is required.
Sentence VACATED; REMANDED for resentencing.