United States v. Sid Willis, Jr. , 795 F.3d 986 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30376
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00292-BR-1
SID EDWARD WILLIS, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 13-30377
Plaintiff-Appellee,
D.C. No.
v. 3:02-cr-00120-BR-1
SID EDWARD WILLIS, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
March 4, 2015—Portland, Oregon
Filed July 29, 2015
2 UNITED STATES V. WILLIS
Before: Raymond C. Fisher, Richard A. Paez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Criminal Law
The panel vacated a sentence for a violation of supervised
release, and remanded for further proceedings, in a case in
which the defendant, who admitted that his conduct
constituted the state felony offense of unlawful use of a
weapon under section 166.220(1)(a) of the Oregon Revised
Statutes, argued that a violation of § 166.220(1)(a) is not
categorically a “crime of violence,” for purposes of U.S.S.G.
§ 7B1.1, and therefore not a Grade A violation.
The panel held that before a district court concludes that
a defendant committed a Grade A violation of supervised
release by engaging in conduct constituting a felony offense
that is a crime of violence, it must take the following steps.
First, it must determine by a preponderance of the evidence
that the defendant’s conduct constituted a federal, state, or
local offense. It must then use the categorical approach set
forth in Taylor v. United States, 495 U.S. 575, 600–02 (1990),
to determine whether that offense is a categorical match to
the federal generic offense of a “crime of violence.” If the
federal, state, or local statute criminalizes more conduct than
*
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. WILLIS 3
the federal generic offense, the court may consider whether
the statute is divisible, Descamps v. United States, 133 S. Ct.
2276, 2283–85 (2013), and whether the offense the defendant
committed qualifies as a crime of violence. If the defendant’s
conduct constitutes an offense that is a crime of violence,
then the court may conclude that the defendant committed a
Grade A violation of supervised release. See U.S.S.G.
§ 7B1.1(a)(1)(A)(i) & cmt. n.1.
Because the district court in this case did not specify
which of two offenses – attempt or possession – in a divisible
statute, § 166.220(1)(a), the defendant’s conduct constituted,
and one of the two offenses – possession – may not be a
crime of violence in light of the Supreme Court’s decision in
Johnson v. United States, No. 13-7120 (U.S. June 26, 2015),
the panel vacated his sentence and remanded for further
proceedings.
The panel noted that because resolution of the issue may
prove unnecessary to the ultimate disposition of the case, it
need not resolve whether the due process concerns that led
Johnson to invalidate the residual clause in the Armed Career
Criminal Act are equally applicable to the residual clause in
U.S.S.G. § 4B1.2(a).
COUNSEL
Tonia L. Moro (argued), Medford, Oregon, for Defendant-
Appellant.
Kelly A. Zusman (argued), Appellate Chief, Assistant United
States Attorney; S. Amanda Marshall, United States Attorney,
Portland, Oregon, for Plaintiff-Appellee.
4 UNITED STATES V. WILLIS
OPINION
IKUTA, Circuit Judge:
Sid Willis, Jr. challenges his 60-month sentence for
violating the conditions of his supervised release. See
18 U.S.C. § 3583(e)(3). Specifically, he argues that the
district court plainly erred in calculating the Sentencing
Guidelines range by determining that Willis committed a
Grade A violation of his supervised release because his
conduct did not constitute a felony offense that is a “crime of
violence.” See U.S.S.G. § 7B1.1(a)(1). We have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We
hold that before a district court concludes that a defendant
committed a Grade A violation of supervised release by
engaging in conduct constituting a felony offense that is a
crime of violence, it must take the following steps. First, it
must determine by a preponderance of the evidence that the
defendant’s conduct constituted a federal, state, or local
offense. See 18 U.S.C. § 3583(d), (e)(3). It must then use the
categorical approach set forth in Taylor v. United States,
495 U.S. 575, 600–02 (1990), to determine whether that
offense is a categorical match to the federal generic offense
of a “crime of violence.” If the federal, state, or local statute
criminalizes more conduct than the federal generic offense,
the court may consider whether the statute is divisible,
Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013),
and whether the offense the defendant committed qualifies as
a crime of violence. If the defendant’s conduct constitutes an
offense that is a crime of violence, then the court may
conclude that the defendant committed a Grade A violation
of supervised release. See U.S.S.G. § 7B1.1(a)(1)(A)(i) &
cmt. n.1. Because the district court in this case did not
specify which of two offenses in a divisible statute Willis’s
UNITED STATES V. WILLIS 5
conduct constituted, and one of the two offenses may not be
a crime of violence in light of the Supreme Court’s recent
decision in Johnson v. United States, No. 13-7120 (U.S. June
26, 2015), we vacate his sentence and remand for further
proceedings.1
I
Before discussing Willis’s challenge to the district court’s
ruling, it is necessary to understand the federal framework for
calculating a sentence for a violation of supervised release
conditions.
A court may “revoke a term of supervised release, and
require the defendant to serve in prison all or part of the term
of supervised release” if the court “finds by a preponderance
of the evidence that the defendant violated a condition” of
release. 18 U.S.C. § 3583(e)(3). A court must order, as a
condition of supervised release, “that the defendant not
commit another Federal, State, or local crime during the term
of supervision.” Id. § 3583(d). “A violation of this condition
may be charged whether or not the defendant has been the
subject of a separate federal, state, or local prosecution for
such conduct.” U.S.S.G. § 7B1.1 cmt. n.1.
When sentencing a defendant for violating a condition of
supervised release, the district court “must determine the
applicable advisory sentencing range under the Guidelines.”
United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010).
1
In light of this conclusion, we need not resolve Willis’s remaining
challenges to his sentence. We resolve his challenge to his felon-in-
possession-of-a-firearm conviction in a concurrently filed memorandum
disposition. United States v. Willis, __ F. App’x __ (9th Cir. 2015).
6 UNITED STATES V. WILLIS
“[F]ailure to calculate the correct advisory range constitutes
procedural error.” Id. There are three grades of supervised
release violations: A, B, and C. U.S.S.G. § 7B1.1(a). A
Grade A violation is defined in part as “conduct constituting
(A) a federal, state, or local offense punishable by a term of
imprisonment exceeding one year that (i) is a crime of
violence . . . .”2 Id. § 7B1.1(a)(1)(A)(i). A “crime of
violence” is defined as any state or federal felony offense that
“(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (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); see also id. § 7B1.1 cmt. n.2 (stating that “[c]rime
of violence” is defined in § 4B1.2(a) of the Guidelines). The
grade of a supervised release violation “is to be based on the
defendant’s actual conduct,” rather than “the conduct that is
the subject of criminal charges or of which the defendant is
convicted in a criminal proceeding.” Id. § 7B1.1 cmt. n.1.
A court must revoke a defendant’s term of supervised
release if it finds a Grade A or B violation. Id. § 7B1.3(a)(1).
The Guidelines provide for a range of 51 to 63 months of
imprisonment upon revocation of supervised release if the
2
In full, § 7B1.1(a)(1) defines a Grade A violation as follows:
[C]onduct constituting (A) a federal, state, or local
offense punishable by a term of imprisonment
exceeding one year that (i) is a crime of violence, (ii) is
a controlled substance offense, or (iii) involves
possession of a firearm or destructive device of a type
described in 26 U.S.C. § 5845(a); or (B) any other
federal, state, or local offense punishable by a term of
imprisonment exceeding twenty years.
UNITED STATES V. WILLIS 7
defendant (1) committed a Grade A violation, (2) was on
supervised release as a result of a sentence for a Class A
felony, and (3) had a criminal history category of VI. Id.
§ 7B1.4(a). The Guidelines provide a range of 21 to 27
months for a Grade B violation by a defendant with a
criminal history category of VI. Id. Notwithstanding the
Guidelines, a defendant whose term of supervised release is
revoked “may not be required to serve on any such revocation
more than 5 years in prison if the offense that resulted in the
term of supervised release is a class A felony.” 18 U.S.C.
§ 3583(e)(3).
II
We now turn to the facts of this case. According to the
evidence introduced at a suppression hearing, Greg Morris
and his girlfriend drove to the Plaid Pantry market on the
night of May 24, 2012. When Morris left the store, he was
approached by two men. One man, wearing a black hoodie,
pulled a handgun from his side pocket and pointed it at
Morris’s chest. He asked Morris why he was “mugging” him
(i.e., giving him a strange look), and threatened him with the
gun. The armed man told Morris: “You can’t be mugging
me. I’ll kill you. I’m a gangsta.” After threatening to kill
Morris, the man demanded that Morris drive him to Southeast
102nd Street. Morris was able to get away with his girlfriend,
and called 911.3 When officers arrived on the scene, Willis
attempted to escape, but he was ultimately detained. After
locating Morris about a block from where Willis was
detained, a police officer drove Morris closer to the area
3
We grant Willis’s unopposed motion to supplement the record on
appeal with a transcript of the 911 dispatch audio recording played at the
suppression hearing.
8 UNITED STATES V. WILLIS
where other officers had detained Willis. Morris positively
identified Willis as the man who threatened him with a gun,
saying “I guarantee that’s the guy.” An officer who reviewed
the surveillance video footage at the Plaid Pantry testified that
the video showed Willis pointing his gun at Morris, as Morris
had reported.
Based on Willis’s conduct at the Plaid Pantry, he was
indicted for being a felon in possession of a firearm under
18 U.S.C. § 922(g)(1) (case number 3:12-cr-00292). Because
Willis was on federal supervised release due to a previous
conviction for possession with intent to distribute five grams
or more of cocaine base (case number 3:02-cr-00120), he also
faced revocation of his supervised release.
In the felon-in-possession case, Willis moved to suppress
all evidence against him. After holding an evidentiary
hearing, the district court denied the motion. Willis then
pleaded guilty to the charge of felon in possession of a
firearm, and admitted that the criminal firearm conduct also
constituted a violation of his federal supervised release. In
the plea agreement, the government calculated that Willis’s
base offense level under § 4B1.4(b)(3)(A) of the Sentencing
Guidelines was 34, based on the government’s belief that
Willis had committed a state crime of violence, “to-wit: the
state crime of Unlawful Use of a Weapon, in violation of
ORS 166.220.” During the plea colloquy, the district court
advised Willis that the government believed that he had
committed a crime of violence under state law and that he had
a right to challenge the government’s position at sentencing.
On December 23, 2013, the district court held a combined
change of plea and sentencing hearing on the supervised
release violation, as well as a sentencing hearing on the felon-
UNITED STATES V. WILLIS 9
in-possession conviction. The court sentenced Willis to the
mandatory minimum of 180 months of imprisonment for his
felon-in-possession-of-a-firearm conviction. For the
supervised release violation, the district court found, by a
preponderance of the evidence, that Willis had violated his
supervised release by committing several state law offenses,
including “the state law offense of unlawful use of a
weapon.” Accordingly, the court adopted the probation
office’s recommendation that Willis’s criminal firearm
conduct was a Grade A violation under § 7B1.1(a)(1) of the
Sentencing Guidelines, and sentenced Willis to the statutory
maximum of 60 months of imprisonment. Willis did not
object to the sentences imposed. As a result, the district court
had no occasion to explain the reasoning behind its
determination that Willis’s conduct constituted a Grade A
violation of his supervised release.
III
On appeal, Willis argues that the district court
procedurally erred in imposing a 60-month sentence for the
supervised release violation. Willis admits that his conduct
constituted the state felony offense of unlawful use of a
weapon under section 166.220(1)(a) of the Oregon Revised
Statutes.4 But Willis argues that a violation of section
4
Section 166.220 of the Oregon Revised Statutes provides:
Unlawful use of weapon
(1) A person commits the crime of unlawful use of a
weapon if the person:
(a) Attempts to use unlawfully against another, or
carries or possesses with intent to use unlawfully
10 UNITED STATES V. WILLIS
166.220(1)(a) is not categorically a “crime of violence,” for
purposes of § 7B1.1 of the Sentencing Guidelines, and
therefore not a Grade A violation. See U.S.S.G.
§ 7B1.1(a)(1). Accordingly, he argues, the district court’s
calculation of the Guidelines range was incorrect because it
was based on the erroneous determination that his criminal
firearm conduct constituted a Grade A violation of supervised
release.
A
Willis’s argument raises a question of first impression in
our circuit: how to determine whether uncharged conduct that
comprises a criminal offense constitutes a “crime of
violence” for purposes of a supervised release revocation.
We have a well-established procedure for determining
whether a prior conviction constitutes a crime of violence for
purposes of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924, and the Immigration and Nationality Act
(INA), see 8 U.S.C. § 1101(a)(43)(F). In making these
determinations, we use the categorical approach set forth in
Taylor, 495 U.S. at 600–02. See, e.g., Rodriguez-Castellon
against another, any dangerous or deadly weapon as
defined in ORS 161.015 (General definitions); or
(b) Intentionally discharges a firearm, blowgun, bow
and arrow, crossbow or explosive device within the city
limits of any city or within residential areas within
urban growth boundaries at or in the direction of any
person, building, structure or vehicle within the range
of the weapon without having legal authority for such
discharge. . . .
(3) Unlawful use of a weapon is a Class C felony.
UNITED STATES V. WILLIS 11
v. Holder, 733 F.3d 847, 852–53 (9th Cir. 2013); United
States v. Mayer, 560 F.3d 948, 958–59 (9th Cir. 2009).
But there is a critical distinction between the supervised
release context and the ACCA or INA context. Under ACCA
and INA, a court is to determine whether a prior conviction is
a “crime of violence.” See Descamps, 133 S. Ct. at 2283;
Rodriguez-Castellon, 733 F.3d at 852–53. In making that
determination, a court must “compare 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.” Rodriguez-
Castellon, 733 F.3d at 853 (internal quotation marks omitted).
The crime of conviction is categorically a “crime of violence”
only if “the full range of conduct covered by the statute falls
within the meaning of that term.” United States v. Espinoza-
Morales, 621 F.3d 1141, 1144 (9th Cir. 2010) (internal
quotation marks omitted). We may not look “to the particular
facts underlying those convictions.” Descamps, 133 S. Ct. at
2283 (internal quotation marks omitted).
In the supervised release context, by contrast, there need
not be a prior conviction. Rather, after considering the
defendant’s conduct, the court may revoke the defendant’s
supervised release if the defendant’s conduct constituted
“another federal, state, or local crime” while on supervised
release, “whether or not the defendant has been the subject of
a separate federal, state, or local prosecution for such
conduct.” U.S.S.G. § 7B1.1 cmt. n.1. Further, “the grade of
the violation is to be based on the defendant’s actual
conduct.” Id.
Nevertheless, we conclude that the Taylor categorical
approach applies in the supervised release context. In the
12 UNITED STATES V. WILLIS
supervised release context, a court must find by a
preponderance of the evidence that the defendant’s conduct
violated a condition of supervised release, 18 U.S.C.
§ 3583(e)(3), whether or not the defendant has been
separately prosecuted for the conduct, U.S.S.G. § 7B1.1 cmt.
n.1. “[A] mandatory condition of . . . supervised release is
that the defendant not commit another federal, state, or local
crime.” Id. When the defendant is charged with violating
that mandatory condition, the court must therefore take the
following steps: (1) identify the “federal, state, or local
crime” at issue, and (2) find by a preponderance of the
evidence that the defendant’s conduct constituted such an
offense. See, e.g., United States v. Daniel, 209 F.3d 1091,
1094 (9th Cir. 2000).
The same two steps are involved in determining whether
the defendant’s conduct amounted to a Grade A violation.
Because a Grade A violation is defined as “conduct
constituting a federal, state, or local offense” that meets
certain criteria, U.S.S.G. § 7B1.1(a)(1), the court must:
(1) determine that the defendant’s conduct constituted “a
federal, state, or local offense,” and (2) determine if such an
offense meets the specified criteria. For § 7B1.1(a)(1)(A)(i),
the applicable criteria are that the offense is “punishable by
a term of imprisonment exceeding one year” and “is a crime
of violence.”
As part of its analysis of the second prong, as defined in
§ 7B1.1(a)(1)(A)(i), the court must determine whether the
applicable federal, state, or local offense (as opposed to the
defendant’s conduct that constituted such an offense) is a
crime of violence. This determination is substantially similar
to the determination a court must make under the ACCA and
INA in analyzing whether a prior offense constitutes a
UNITED STATES V. WILLIS 13
generic federal crime of violence. Although in the ACCA
and INA contexts, the court identifies the statutory offense for
which the defendant was convicted, while in the supervised
release context, the court may need to identify a statutory
offense for which the defendant could have been convicted,
the analysis required to determine whether the offense at
issue qualifies as a federal generic crime of violence is the
same. Because we use the Taylor approach to make this
determination in the ACCA and INA contexts, and there is no
material distinction between those contexts and the
supervised release context for purposes of determining
whether the offense is a crime of violence, we conclude that
the familiar Taylor approach applies in this context as well.5
5
We disagree, at least in part, with both the Third and Second Circuits,
which have taken different approaches to this issue. See United States v.
Carter, 730 F.3d 187 (3d Cir. 2013); United States v. Cawley, 48 F.3d 90
(2d Cir. 1995). The Second Circuit’s approach, which requires a court to
compare the defendant’s actual conduct to the federal definition of the
crime, rather than compare the elements of the offense the defendant
committed to the federal definition, see Cawley, 48 F.3d at 93, is contrary
to the Guidelines’ requirement that the defendant’s conduct constitute a
federal, state, or local offense that is a crime of violence, see U.S.S.G.
§ 7B1.1(a)(1)(A)(i); see also Taylor, 495 U.S. at 600–02. We find more
agreement with the Third Circuit. See Carter, 730 F.3d at 192. We agree
that in determining whether the defendant has committed a crime of
violence for purposes of § 7B1.1(a)(1)(A)(i), a court must identify the
particular crime for which the defendant was responsible, and determine
whether that crime, rather than the defendant’s conduct, contains an
“element of force.” Id. at 192–93. We also agree that in the supervised
release context, a court must look at “a defendant’s actual conduct in
determining whether they have broken the law and thus the terms of their
supervised release.” Id. at 192. But we disagree with the Third Circuit’s
broad statement that “the categorical approach is necessarily not
applicable in the revocation context.” Id. In our view, a court must use
this approach to determine if the particular crime identified by the court
qualifies as a “crime of violence.” See Taylor, 495 U.S. at 600–02;
14 UNITED STATES V. WILLIS
There is, however, another important distinction between
the supervised release context and the ACCA and INA
contexts. In the supervised release context, the court is
responsible for determining whether the defendant’s
uncharged conduct constitutes a particular statutory offense,
and only then applying the separate Taylor analysis. See
18 U.S.C. § 3583(e)(3). Accordingly, where a statute is
divisible and “lists multiple, alternative elements, and so
effectively creates several different . . . crimes,” Descamps,
133 S. Ct. at 2285 (alteration in original) (internal quotation
marks omitted), the court may determine that the defendant’s
uncharged conduct constitutes one of those multiple crimes.
In other words, a court may determine whether the
defendant’s conduct constituted “a particular substantive
offense contained within the disjunctively worded statute,”
see Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014),
that constitutes a crime of violence. In the ACCA and INA
contexts, by contrast, a court cannot consider a defendant’s
conduct in order to determine whether the defendant was
convicted of an alternate crime that constitutes a crime of
violence. Descamps, 133 S. Ct. at 2283. Instead, a court
must look to “certain judicial records to determine whether
the defendant was necessarily convicted of the elements of a
crime listed in a divisible statute that is a federal generic
offense.” Rodriguez-Castellon, 733 F.3d at 853.
In sum, in a supervised release revocation case, a district
court must determine by a preponderance of the evidence that
the defendant’s conduct constituted a federal, state, or local
offense. See U.S.S.G. § 7B1.1(a)(1). After identifying the
statutory offense, the court should use the Taylor categorical
approach to determine whether that offense criminalizes the
U.S.S.G. § 7B1.1(a)(1)(A)(i).
UNITED STATES V. WILLIS 15
same or less conduct than the federal generic offense of a
“crime of violence,” and is therefore a categorical match. See
Rodriguez-Castellon, 733 F.3d at 853. If it is, then the court
can conclude that the defendant committed a Grade A
violation of supervised release. If the statutory offense
criminalizes more conduct than the federal generic offense,
the court should consider whether the statute is divisible and
contains “one statutory phrase corresponding to the generic
crime and another not.” Descamps, 133 S. Ct. at 2286. If the
statutory offense is divisible, the district court should specify
which of the multiple offenses in the statute the defendant’s
conduct constituted. The court must then determine whether
the specific offense corresponding to the defendant’s conduct
is a categorical match to the federal generic offense of “crime
of violence.” See id. at 2283–85. Only if there is such a
match can the court conclude that the defendant committed a
Grade A violation of supervised release.6 See U.S.S.G.
§ 7B1.1(a)(1)(A)(i).
B
We now apply this approach to determine whether the
district court erred in concluding that Willis’s conduct
constituted a Grade A violation. Because Willis did not
object to the sentence imposed, we review this determination
6
Although we describe the sequence of analysis typically used in the
ACCA and INA contexts, see, e.g., Rendon, 764 F.3d at 1082–84, we note
that nothing in the Sentencing Guidelines or our case law requires this
sequence in the supervised release revocation context. Accordingly, a
district court considering a supervised release revocation may instead first
determine that the criminal statute at issue is divisible, next determine that
the defendant’s conduct constitutes one of the multiple offenses included
in the statute, and then consider whether that specific offense constitutes
a crime of violence.
16 UNITED STATES V. WILLIS
for plain error. See United States v. Hammons, 558 F.3d
1100, 1103 (9th Cir. 2009). “Relief for plain error is
available if there has been (1) error; (2) that was plain;
(3) that affected substantial rights; and (4) that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Gonzalez Becerra,
784 F.3d 514, 518 (9th Cir. 2015) (internal quotation marks
omitted).
To satisfy § 7B1.1(a)(1)(A)(i), Willis’s conduct must
constitute a crime, and that crime must be a crime of
violence.7 The district court in this case determined by a
preponderance of the evidence that Willis’s conduct
constituted the state offense of unlawful use of a weapon in
violation of section 166.220(1)(a) of the Oregon Revised
Statutes. In reaching this conclusion, the district court relied
on the evidence adduced at the suppression hearing, which
showed that Willis pointed a gun at Morris and threatened to
kill him.8
We next apply the Taylor approach to determine whether
this state offense is a crime of violence. See U.S.S.G.
§ 7B1.1(a)(1)(A)(i). A person violates section 166.220(1)(a)
if the person “[1] [a]ttempts to use unlawfully against
7
The parties do not dispute that a violation of section 166.220(1)(a) of
the Oregon Revised Statutes is punishable by a term of imprisonment
exceeding one year. A violation of section 166.220(1) is a Class C felony,
Or. Rev. Stat. § 166.220(3), and the maximum prison term for a Class C
felony is five years, Or. Rev. Stat. § 161.605(3).
8
Willis does not challenge the district court’s determination that his
conduct constituted the state offense of unlawful use of a weapon in
violation of section 166.220(1)(a), nor does he challenge the court’s
reliance on the evidence adduced at the suppression hearing.
UNITED STATES V. WILLIS 17
another, or [2] carries or possesses with intent to use
unlawfully against another, any dangerous or deadly weapon
as defined in ORS 161.015.” Or. Rev. Stat. § 166.220(1)(a).
The district court apparently assumed section 166.220(1)(a)
is categorically a crime of violence and accordingly did not
conduct a divisibility analysis. For reasons explained below,
before determining whether section 166.220(1)(a) is
categorically a crime of violence, we think it prudent to first
determine whether it is divisible We conclude it is. See
Descamps, 133 S. Ct. at 2285. The statute is written in the
disjunctive, and under Oregon law, it “presents alternative
ways in which a person can commit the crime: by attempting
to use a deadly weapon unlawfully, or by carrying or
possessing a deadly weapon with intent to use it unlawfully.”
State v. Alvarez, 246 P.3d 26, 29 (Or. Ct. App. 2010). In
other words, section 166.220(1)(a) effectively creates two
different crimes, each with a distinct set of elements:
(1) attempting to use a deadly weapon unlawfully against
another (the “attempt offense”), and (2) carrying or
possessing a deadly weapon with intent to use it unlawfully
(the “possession offense”).9 See id.
Because the statute is divisible, we consider whether each
offense constitutes a crime of violence under § 4B1.2(a) of
the Sentencing Guidelines. Turning first to the attempt
offense under section 166.220(1)(a), we conclude it
constitutes a crime of violence as defined in § 4B1.2(a)(1) of
9
The fact that a statute is written in the disjunctive “alone cannot end
the divisibility inquiry”; rather, we must determine whether the statute
“contains multiple alternative elements, as opposed to multiple alternative
means.” See Rendon, 764 F.3d at 1086. Where, as here, a state court
interprets a disjunctive statute as creating different crimes, we may
conclude that the statute is divisible. See id. at 1088–89 & n.13.
18 UNITED STATES V. WILLIS
the Sentencing Guidelines. Section 166.220(1)(a) prohibits
“[a]ttempts to use [any dangerous or deadly weapon]
unlawfully against another.” Oregon defines “use” as
employing a weapon to inflict harm or injury, or to threaten
immediate harm or injury. Ziska, 334 P.3d at 970.
Accordingly, a person who commits an attempt offense under
section 166.220(1)(a) necessarily attempts to employ a
weapon to inflict harm or injury or to threaten immediate
harm or injury to another. Section 166.220(1)(a) therefore
“has as an element the use, attempted use, or threatened use
of physical force against the person of another.” See
U.S.S.G. § 4B1.2(a)(1); see also Rosales-Rosales v. Ashcroft,
347 F.3d 714, 717 (9th Cir. 2003) (holding that a statute
which prohibits threats to commit a crime that “will result in
death or great bodily injury to another person . . . has as an
element the . . . threatened use of physical force against the
person or property of another” (second alteration in original)
(internal quotation marks omitted)).
We next consider whether the possession offense under
section 166.220(1)(a) constitutes a crime of violence as
defined in § 4B1.2(a) of the Sentencing Guidelines. The
elements of the possession offense are “(1) carrying or
possessing; (2) a dangerous or deadly weapon; (3) with intent
to use it unlawfully; (4) against another.” Alvarez, 246 P.3d
at 29. On its face, the possession offense does not include as
an element “the use, attempted use, or threatened use of
physical force against the person of another.” See U.S.S.G.
§ 4B1.2(a)(1). It therefore constitutes a “crime of violence”
only if it falls within the residual clause of § 4B1.2(a), which
defines such a crime as one that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” See id. § 4B1.2(a)(2).
 UNITED STATES V. WILLIS 19
It is an open question, however, whether this residual
clause remains valid in light of Johnson, which was decided
while this appeal was pending. In Johnson, the Supreme
Court considered the term “violent felony” in ACCA, No. 13-
7120, slip op. at 1–2, which is defined as a felony offense that
“has as an element the use, attempted use, or threatened use
of physical force against the person of another; or . . . is
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B).
The Court focused on the “or otherwise” clause (or “residual
clause”), and concluded that this portion of the definition of
“violent felony” was unconstitutionally vague. Johnson, No.
13-7120, slip op. at 2–5. According to the Court, increasing
a defendant’s sentence under this residual clause denied
defendants due process of law because “the indeterminacy of
the wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary
enforcement by judges.” Id. at 5. The Court therefore
invalidated it. Id. at 15.
Like “violent felony” in ACCA, “crime of violence” in
§ 4B1.2(a)(2) of the Sentencing Guidelines is defined as
including an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
We make no distinction between “violent felony” in ACCA
and “crime of violence” in § 4B1.2(a)(2) for purposes of
interpreting the residual clauses. See United States v.
Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013). But we have
not yet considered whether the due process concerns that led
Johnson to invalidate the ACCA residual clause as void for
vagueness are equally applicable to the Sentencing
Guidelines.
20 UNITED STATES V. WILLIS
We need not resolve this issue to dispose of this appeal.
The district court did not undertake the divisibility analysis,
and therefore did not state whether Willis’s uncharged
conduct constituted the attempt offense, the possession
offense, or both offenses under section 166.220(1)(a).10
Rather than attempt to divine the district court’s conclusion
based on the evidence in the record and resolve issues that
may prove unnecessary to the ultimate disposition of the case,
we think the better course is to remand to the district court to
determine whether Willis’s conduct constituted the attempt or
possession offense, or whether his conduct otherwise
constituted a Grade A violation, and undertake further
proceedings as necessary. Cf. Carter, 730 F.3d at 192–93
(declining “to speculate which federal or state offense the
[district court] believed had been committed”). We therefore
vacate Willis’s sentence and remand to the district court to
10
The government argues that we have already determined that the
Oregon crime of unlawful use of a weapon in violation of section
166.220(1)(a) is categorically a crime of violence and therefore it was
unnecessary for the district court to specify whether Willis’s conduct
constituted the attempt or possession offense. Even assuming the cases
the government cites in support of this argument remain good law after
Johnson, see, e.g., United States v. Terry-Crespo, 356 F.3d 1170, 1178–79
(9th Cir. 2004), we would reject the argument because those cases address
only Oregon Revised Statute section 166.220(1)(b); they do not address
Oregon Revised Statute section 166.220(1)(a), which has entirely different
elements than section 166.220(1)(b). Compare Or. Rev. Stat.
§ 166.220(1)(a) (prohibiting a person from attempting “to use unlawfully
against another, or carr[ying] or possess[ing] with intent to use unlawfully
against another, any dangerous or deadly weapon”), with id.
§ 166.220(1)(b) (prohibiting a person from “intentionally discharg[ing] a
firearm . . . within the city limits of any city or within residential areas
. . . at or in the direction of any person, building, structure or vehicle . . .
”).
UNITED STATES V. WILLIS 21
conduct further sentencing proceedings consistent with this
opinion.11
VACATED AND REMANDED.
11
The government argued for the first time at oral argument that Willis’s
conduct constituting the federal crime of felon in possession of a firearm
in violation of 18 U.S.C. § 922(g) was a Grade A violation of his
supervised release because it is “punishable by a term of imprisonment
exceeding twenty years.” See U.S.S.G. § 7B1.1(a)(1)(B). The
government waived this argument by not raising it in its answering brief.
See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011).