United States v. Kelly Ankeny, Sr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35138
Plaintiff-Appellee, D.C. Nos. 3:16-cv-01013-MO
3:04-cr-00005-MO-1
v.
KELLY DAVID ANKENY, Sr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Argued and Submitted July 12, 2018
Submission Withdrawn September 18, 2018
Resubmitted January 15, 2020
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Kelly David Ankeny appeals the denial of his motion to vacate his
conviction under 28 U.S.C. § 2255.1 We have jurisdiction under 28 U.S.C. §§ 1291
and 2253(c)(2) and affirm.
Ankeny was sentenced under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), because he had one conviction of a violent felony and two of
serious drug offenses. Ankeny filed a motion to vacate his sentence under 28
U.S.C. § 2255, arguing that after Johnson v. United States, — U.S. —, 135 S. Ct.
2551 (2015), declared vague the “residual clause” of the ACCA’s definition of
“violent felony,” Ankeny’s predicate conviction of Oregon second-degree robbery
(Robbery II), Or. Rev. Stat. § 164.405, cannot be classified as a violent felony
under § 924(c); thus, he should not have been sentenced as an armed career
criminal. The district court denied the motion, holding that Ankeny’s Robbery II
conviction was of a crime of violence under the ACCA’s “force clause.” We
review that decision de novo. United States v. Parnell, 818 F.3d 974, 978 (9th Cir.
2016).
A crime is a violent felony under the force clause if it “has as an element the
use, attempted use, or threatened use of physical force against the person of
1
Although Ankeny’s prison term ended while this appeal was pending, he is
still subject to a term of supervised release and thus remains in custody for
purposes of § 2255. Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.
2002).
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another.” 18 U.S.C. § 924(e)(2)(B)(i). “‘[P]hysical force’ means violent force—
that is, force capable of causing physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 140 (2010) (citing Flores v. Ashcroft, 350 F.3d 666,
672 (7th Cir. 2003)). Recently, the Supreme Court clarified that this definition
“encompasses robbery offenses that require the criminal to overcome the victim’s
resistance.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019).
“[T]o determine whether a defendant’s conviction under a state criminal
statute qualifies as a violent felony under the force clause, we do not look to the
underlying facts of the defendant’s actual conviction.” United States v. Walton,
881 F.3d 768, 771 (9th Cir. 2018) (citing Mathis v. United States, 136 S. Ct. 2243,
2251 (2016)). Instead, we ask “whether the conduct proscribed by the statute
necessarily involves the use, attempted use, or threatened use of physical force
against the person of another.” Ward v. United States, 936 F.3d 914, 917 (9th Cir.
2019) (quoting United States v. Geozos, 870 F.3d 890, 898 (9th Cir. 2017))
(quotation marks omitted). “State cases that examine the outer contours of the
conduct criminalized by the state statute are particularly important because we
must presume that the conviction rested upon nothing more than the least of the
acts criminalized by that statute.” Walton, 881 F.3d at 771–72 (quoting United
States v. Strickland, 860 F.3d 1224, 1226–27 (9th Cir. 2017)) (internal quotation
marks omitted).
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But if a statute is “divisible,” meaning that what the state labels as a single
crime is effectively several different crimes, we apply a modified categorical
approach, “consult[ing] a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of the defendant’s
prior conviction, and then apply the categorical approach under the subdivision
under which the defendant was convicted.” Id. at 772 (quoting United States v.
Werle, 815 F.3d 614, 619 (9th Cir. 2016)). “To be divisible, a state statute must
contain ‘multiple, alternative elements of functionally separate crimes.’” United
States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015) (emphasis omitted) (quoting
Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014)). The touchstone of a
divisible crime is “alternative elements, which are essential to a jury’s finding of
guilt,” rather than “alternative means, which are not.” Id. at 1198 (quotation
omitted). Elements are alternative if the prosecutor “must generally select the
relevant element from its list of alternatives. And the jury, as instructions in the
case will make clear, must then find that element, unanimously and beyond a
reasonable doubt.” Id. (quoting Rendon, 764 F.3d at 1085).
Robbery II is not categorically a violent felony. A person commits Robbery
II by committing third-degree Oregon robbery (Robbery III), Or. Rev. Stat.
§ 164.395, and
(a) Represent[ing] by word or conduct that the person is armed with what
purports to be a dangerous or deadly weapon; or
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(b) [Being] aided by another person actually present.
Or. Rev. Stat. § 164.405(1)(a)–(b). Robbery III, in turn, occurs when “in the course
of committing or attempting to commit theft . . . [a] person uses or threatens the
immediate use of physical force upon another person with the intent of: (a)
[p]reventing or overcoming resistance to the taking of the property or to retention
thereof immediately after the taking; or (b) [c]ompelling the owner of such
property or another person to deliver the property or to engage in other conduct
which might aid in the commission of the theft.” Or. Rev. Stat. § 164.395(1). We
have held that Oregon Robbery III is not a violent felony under the force clause
because “[s]tate cases show that Oregon doesn’t require physically violent force.”
Strickland, 860 F.3d at 1227 (collecting cases); see also United States v. Shelby,
939 F.3d 975, 979 (9th Cir. 2019) (reaffirming Strickland after Stokeling). By
extension, because a defendant can commit Robbery II by having another person
present during a nonviolent Robbery III, Robbery II does not necessarily entail the
use of force.
But as Ankeny concedes, Robbery II is divisible.2 Under Oregon law, each
subsection of § 164.405(1) is an alternative element that must be proven to a jury
2
We originally certified the question of Robbery II’s divisibility to the
Oregon Supreme Court, United States v. Lawrence, 905 F.3d 653, 659 (9th Cir.
2018), which declined certification in part because it understood existing Oregon
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beyond a reasonable doubt. State v. Gaines, 365 P.3d 1103, 1108–09 (Or. Ct. App.
2015) (holding jury must concur on theory of second-degree robbery); see also
State v. White, 211 P.3d 248, 254–55 (Or. 2009) (though holding Robbery II’s two
elevating conditions constitute a single crime under state law, acknowledging that
they “involve proof of different facts”). That understanding holds true in Ankeny’s
case, where he was charged exclusively under subsection (a), corroborating our
conclusion that the statute is divisible. See Mathis, 136 S. Ct. at 2256–57
(permitting courts to “peek at the record documents” to determine whether state
treats items listed in a statute as elements). We therefore hold that Oregon Robbery
II is divisible and accept Ankeny’s concession.
Under the modified categorical approach, the information and guilty plea
reveal that Ankeny was convicted of Robbery II under § 164.405(1)(a) because he
represented that he was armed with what purported to be a dangerous weapon
while committing Robbery III. We must therefore determine whether representing
that one is armed in the course of committing Oregon Robbery III necessarily
entails a threat of violent force.
It does. A threat of violent force under the ACCA “requires some outward
expression or indication of an intention to inflict pain, harm or punishment.”
law to answer our certified question. United States v. Lawrence, 441 P.3d 587,
589–90 (Or. 2019) (citing State v. Gaines, 365 P.3d 1103 (Or. Ct. App. 2015)).
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Parnell, 818 F.3d at 980. Robbery II(a)’s representation element requires such an
outward expression: the defendant must actively communicate to the victim during
the course of a robbery that he or she is armed with what purports to be a
dangerous or deadly weapon. State v. Lee, 23 P.3d 999, 1003 (Or. Ct. App. 2001)
(“[T]o commit second-degree robbery, the defendant must intend to cause the
victim to be aware of the fact that he or she is armed with a dangerous weapon.”).
Although Robbery III is not categorically violent, Robbery II(a)’s representation
element entails an implicit threat to use a purported weapon capable of serious or
deadly force if the victim resists the robbery. See, e.g., United States v. Perez-
Silvan, 861 F.3d 935, 942–43 (9th Cir. 2017) (holding that unlawful touching
while “us[ing] or display[ing] a deadly weapon” constitutes a violent felony under
the ACCA).
We further agree with the district court that Robbery II(a)’s representation
element is “conjoined” with Robbery III’s force element—that is, to commit
robbery and represent that one is armed, one must commit robbery by representing
that one is armed. The Oregon Supreme Court has described the elements in such
terms, explaining that higher degrees of robbery correspond with increased “levels
of threat that may persuade the victim to part with his or her property with more or
less reluctance.” White, 211 P.3d at 256. The Oregon Court of Appeals has
implicitly conjoined Robbery III’s force element and Robbery II(a)’s
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representation element by describing Robbery II(a) as “commit[ing] theft while
representing that he was armed with what purported to be a deadly or dangerous
weapon . . . .” State v. Colmenares-Chavez, 260 P.3d 667, 669 (Or. Ct. App. 2011)
(emphasis added). Moreover, Oregon Robbery II(a) cases always involve the
defendant’s using the representation that he or she was armed as the means of
threatening force against the victim. See, e.g., White, 211 P.3d at 249–50
(defendant threatened to stab loss-prevention employee during robbery); State v.
Shields, 407 P.3d 940, 941 (Or. Ct. App. 2017) (defendant confronted victims with
a gun and demanded cash); State v. Christner, 624 P.2d 1085, 1086 (Or. Ct. App.
1981) (defendant threatened to shoot victim with a handgun).
Although other facts that may elevate simple robbery to Robbery I or II
under Oregon law need not be tied to Robbery III’s force element, Robbery II(a)’s
representation element must. Unlike Robbery I, which criminalizes possessing but
not using a dangerous weapon during a robbery, Shelby, 939 F.3d at 979, or
Robbery II(b), which criminalizes committing a robbery with the aid of another
person present who does not use or threaten force, State v. Morgan, 364 P.3d 690,
694–95 (Or. Ct. App. 2015), Robbery II(a) requires active use of the representation
to commit the simple robbery. Ankeny has not cited and we are not aware of any
Oregon cases suggesting otherwise.
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Nor do we see a reasonable possibility that Robbery II(a) could ever be
applied to nonviolent conduct. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). In the district court, Ankeny proposed that a defendant who inadvertently
displays a weapon during a nonviolent robbery but does not use the weapon to
effect the robbery could be guilty of Robbery II(a) without threatening violent
force. Ankeny rightly abandons that hypothetical here, because that defendant has
not committed Robbery II(a), which requires an intentional representation. Lee, 23
P.3d at 1003. It would require vivid legal imagination to uncover a way to
represent affirmatively that one is armed during a robbery without at least
implicitly threatening to use the purported weapon if the victim resists. See
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (“[O]ur focus on the minimum
conduct criminalized by the state statute is not an invitation to apply ‘legal
imagination’ to the state offense; there must be ‘a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime.’” (citation omitted)).
Finally, Ankeny argues that under State v. Lee, Robbery II(a) does not
require proof that the defendant intends to threaten violent force against the victim.
In Lee, the defendant argued that the jury should have been instructed on
menacing—“by word or conduct . . . intentionally attempt[ing] to place another in
fear of imminent serious physical injury”—as a lesser included offense of Robbery
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II. 23 P.3d at 1002–03. The Oregon Court of Appeals held that menacing is not a
lesser included offense because Robbery II(a) does not require specific intent to
cause fear. Id. at 1003. The court reasoned that making the victim believe that the
defendant is armed with a dangerous weapon “does not necessarily” require proof
that “the defendant also intends to create in the mind of the victim the particular
mental state of ‘fear of imminent serious physical injury.’” Id. The court posited
that a defendant who says “I have a gun, but I don’t want you to be afraid. Just
give me your money, and no one will harm you in any way” would be guilty of
Robbery II(a) but not menacing. Id. Ankeny argues that if Oregon does not require
proof of intent to frighten the victim, Robbery II(a) does not necessarily entail the
“threatened use of physical force” under the ACCA.
Lee does not transform Robbery II(a) into a nonviolent crime. First, Lee
holds at most that Robbery II(a)’s representation element does not require specific
intent to frighten the victim. But the ACCA does not require specific intent:
“knowledge, or general intent, remains a sufficient mens rea to serve as the basis
for a crime of violence.” Werle, 877 F.3d at 882. Lee itself suggests that defendants
who intentionally communicate to their robbery victims that they are armed will
know that most victims will feel fear. Lee, 23 P.3d at 1003 (“[M]any or most
victims in such circumstances in fact will be afraid.”). Second, Lee holds that
Robbery II(a) does not necessarily require proof of intent to frighten, id., but the
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ACCA requires “outward expression or indication of an intention to inflict pain,
harm or punishment.” Parnell, 818 F.3d at 980. A defendant’s intention to frighten
the victim and a defendant’s intention to communicate an intent to inflict pain,
harm and punishment if the victim resists are not necessarily two sides of the same
coin. See Lee, 23 P.3d at 1003.
Finally, Ankeny argues that we should apply the rule of lenity to construe
Robbery II in his favor. The rule applies only “where there is a grievous ambiguity
or uncertainty in the language or structure of the statute,” United States v.
Wanland, 830 F.3d 947, 954 (9th Cir. 2016) (quoting United States v. Kahre, 737
F.3d 554, 572 (9th Cir. 2013)), which we do not find here.
We therefore AFFIRM.
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