United States v. Kenneth Door

FILED
NOT FOR PUBLICATION
AUG 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30170
Plaintiff - Appellee, D.C. No. 3:12-cr-05126-RBL-1
v.
MEMORANDUM*
KENNETH RANDALE DOOR,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued February 4, 2016
Submitted March 17, 2016
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
In a memorandum disposition filed April 5, 2016, we affirmed Door’s
conviction. Regarding Door’s sentence: (1) We held that Door was not subject to
an enhancement for possessing a destructive device, U.S.S.G. § 2K2.1(b)(3)(B);
(2) We held that the district court had not made the requisite findings for us to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
determine whether Door was subject to enhancements for possessing a firearm in
connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and for
obstruction of justice, U.S.S.G. § 3C1.1; and (3) We deferred resolution of the
question whether Door’s six prior convictions for second-degree burglary in
Washington State1 were violent felonies under 18 U.S.C. § 924(e)(1), making him
an armed career criminal, until the Supreme Court’s decision in Mathis v. United
States, 136 S. Ct. 2243 (2016).
The Supreme Court filed its opinion in Mathis on June 23, 2016, explicitly
holding that a state statute is not categorically a violent felony when its elements
include alternate means of committing an offense that sweep broader than the
elements of the federal generic definition. Id. at 2250–51, 2253, 2256 (2016). In
supplemental briefs, Door argues and the government concedes that in light of
Mathis, Door’s prior convictions for burglary in Washington are not violent
felonies. We agree and so hold.
We vacate Door’s sentence and remand to the district court for resentencing.
On remand, the district court may make findings of fact that either support or rule
out the enhancements for possessing a firearm in connection with another felony
1
See Wash. Rev. Code § 9A.52.030.
2
offense and for obstruction of justice. We express no view on those enhancements
before reviewing any findings of fact that may be made on remand.
SENTENCE VACATED and REMANDED. The time for filing petitions
for rehearing or rehearing en banc shall begin upon the filing date of this
memorandum disposition.
3