United States v. Justin Werle

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30181
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00041-
JLQ-1
JUSTIN CURTIS WERLE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior District Judge, Presiding
Submitted December 5, 2017 *
Seattle, Washington
Filed December 13, 2017
Before: Diarmuid F. O’Scannlain, Richard C. Tallman, and
Paul J. Watford, Circuit Judges.
Per Curiam Opinion
*
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. WERLE
SUMMARY **
Criminal Law
The panel affirmed the district court’s imposition of a
sentence enhancement under U.S.S.G. § 2K2.1(a) based on
the defendant’s prior convictions for felony harassment
under Washington Revised Code § 9A.46.020(2)(b)(ii).
The panel held that because a conviction under
§ 9A.46.020(2)(b)(ii) necessarily includes a “threatened use
of physical force against the person of another,” a conviction
under that section is categorically a crime of violence under
§ 2K2.1(a)(1).
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
Michael C. Ormsby, United States Attorney; Timothy J.
Ohms, Assistant United States Attorney; United States
Attorney’s Office, Spokane, Washington; for Plaintiff-
Appellee.
**
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. WERLE 3
OPINION
PER CURIAM:
We must decide whether a Washington state conviction
for felony harassment constitutes a crime of violence under
the Federal Sentencing Guidelines.
I
In March of 2014, Justin Curtis Werle was indicted in the
Eastern District of Washington for the unlawful possession
of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1), and possession of an unregistered firearm, in
violation of 26 U.S.C. § 5861(d). Werle pled guilty to both
counts against him, and a sentencing hearing was held later
that year.
The district court found that Werle had seven prior
qualifying convictions under the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (ACCA), and was therefore subject
to a fifteen-year mandatory minimum sentence. This finding
was based in part on the district court’s determination that
the Washington riot statute is categorically a violent felony
for the purposes of the ACCA. A different panel of this court
held that the Washington riot statute is not categorically a
violent felony, and the case was remanded for resentencing
in light of the opinion. United States v. Werle, 815 F.3d 614,
623 (9th Cir. 2016).
On remand, the district court imposed a sentence
enhancement under U.S.S.G. § 2K2.1(a) due to Werle’s
prior convictions for felony harassment via a threat to kill
under Washington Revised Code § 9A.46.020(2)(b)(ii),
finding that those convictions were crimes of violence. The
district court then calculated Werle’s sentencing guideline
4 UNITED STATES V. WERLE
range to be between 130 and 162 months, and concluded that
a total sentence of 140 months was appropriate.
Werle timely appealed.
II
Werle argues that the district court erred in concluding
that his convictions for felony harassment under
§ 9A.46.020(2)(b)(ii) were crimes of violence. 1
A
For certain convictions involving firearms, the Federal
Sentencing Guidelines provide for a sentence enhancement
if the defendant has “at least two [prior] felony convictions
of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a). A crime of violence is
defined, in relevant part, as “any offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that . . . has as an element the use, attempted use,
or threatened use of physical force against the person of
another . . . .” U.S.S.G. § 4B1.2(a).
We utilize the categorical approach of Taylor v. United
States to determine whether a state conviction qualifies as a
crime of violence. 495 U.S. 575 (1990). Under Taylor, we
compare the elements of the state statute of conviction to the
generic federal definition of a crime of violence. See id. at
599. If the language of the state statute only reaches conduct
that falls into the generic federal definition, a conviction
1
Werle also argues that the imposition of consecutive, rather than
concurrent, sentences was procedurally and substantively unsound. We
address this argument in a contemporaneously filed memorandum
disposition.
UNITED STATES V. WERLE 5
under that law is categorically a crime of violence and our
inquiry is at an end. See id.; United States v. Calvillo-
Palacios, 860 F.3d 1285, 1288 (9th Cir. 2017). But if the
language of the state statute sweeps more broadly than the
generic federal definition, a conviction under that statute
may only qualify as a crime of violence if the statute is
“divisible”; that is, if the statute lists several alternative
elements, really several different crimes, as opposed to
various means of committing a single crime. See Descamps
v. United States, 133 S. Ct. 2276, 2283–84 (2013); Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016).
If the statute is divisible, we may utilize the so-called
“modified categorical approach” as a tool for discovering
precisely which statutory elements “formed the basis of the
defendant’s prior conviction.” See Descamps, 133 S. Ct. at
2281. And in doing so, we may “consult a limited class of
[extra-statutory] documents, such as indictments and jury
instructions.” See id. Once we have gathered the elements of
the defendant’s true crime of conviction, we return to the
categorical approach and compare those elements with the
generic federal definition of a crime of violence. See id.;
Calvillo-Palacios, 860 F.3d at 1288.
B
The Washington harassment statute provides that:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person
knowingly threatens:
(i) To cause bodily injury immediately
or in the future to the person
threatened or to any other person; or
6 UNITED STATES V. WERLE
(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
(b) The person by words or conduct
places the person threatened in
reasonable fear that the threat will be
carried out.
Wash. Rev. Code § 9A.46.020(1) (2011). It is a class C
felony to “harass[] 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(2)(b)(ii).
The harassment statute as a whole is not categorically a
crime of violence under § 4B1.2(a)(1), but felony
harassment under § 9A.46.020(2)(b)(ii) is divisible from the
harassment statute generally. Washington courts have made
clear that felony harassment under § 9A.46.020(2)(b)(ii) is a
separate crime that requires a unanimous jury to find a threat
to kill beyond a reasonable doubt. See State v. Mills,
109 P.3d 415, 419 (Wash. 2005) (“[I]t is unquestionably true
that ‘threatening to kill’ is an element of felony
harassment.”). Werle concedes that he was convicted of
felony harassment specifically under § 9A.46.020(2)(b)(ii),
UNITED STATES V. WERLE 7
and so we need not utilize the modified categorical approach
to probe into the undergrowth of his harassment convictions
and discover the elements that supported them. See United
States v. Ventura-Perez, 666 F.3d 670, 676 (10th Cir. 2012);
United States v. Kindle, 453 F.3d 438, 442 (7th Cir. 2006).
Rather, we all agree that he was convicted of “knowingly
threaten[ing] to kill [someone] immediately or in the future
[and] [t]hat the words or conduct of [Werle] placed [that
person] in reasonable fear that the threat to kill would be
carried out . . . .” 11 Washington Practice: Washington
Pattern Jury Instructions: Criminal 36.07.02 (4th ed. 2016)
(WPIC 36.07.02).
But that agreement, as convenient as it was, falls away
when we consider whether a conviction resting on those
elements categorically includes a “threatened use of physical
force” under § 4B1.2. Werle argues that
§ 9A.46.020(2)(b)(ii) is overbroad because (1) it lacks the
requisite mens rea to constitute a threatened use of force,
(2) it includes threats to kill in the distant future, and (3) it
does not necessarily require threatened violent force.
1
Werle argues that § 9A.46.020(2)(b)(ii) allows a
conviction based on mere negligence, and so a conviction
under that section cannot constitute a crime of violence. It is
clear that a negligent application of force is insufficient to
constitute a “use of force” and therefore cannot serve as the
basis for a crime of violence. Leocal v. Ashcroft, 543 U.S. 1,
9 (2004). But knowledge, or general intent, remains a
sufficient mens rea to serve as the basis for a crime of
violence. See United States v. Melchor-Meceno, 620 F.3d
1180, 1186 (9th Cir. 2010) (“[T]o knowingly place another
person in fear of imminent serious bodily harm . . . includes
the requisite mens rea of intent for a crime of violence.”
8 UNITED STATES V. WERLE
(citing United States v. Grajeda, 581 F.3d 1186, 1197 (9th
Cir. 2009)).
Turning to § 9A.46.020(2)(b)(ii), the first element of a
conviction under that section requires the defendant to have
“knowingly threatened to kill” someone. WPIC 36.07.02(1).
The Washington Supreme Court has interpreted this element
to require the defendant “subjectively [to] know that he or
she is communicating a threat . . . of intent to cause bodily
injury to the person threatened or to another person.” State
v. J.M., 28 P.3d 720, 725 (Wash. 2001). A knowing threat of
intent to cause bodily injury plainly requires a sufficient
mens rea to constitute a threatened use of physical force. See
Melchor-Meceno, 620 F.3d at 1186.
Recognizing the difficulty in attacking the first element
of the crime, Werle argues that a different element of the
crime requires only negligence: placing the victim “in
reasonable fear that the threat to kill would be carried out.”
WPIC 36.07.02(2). Werle is correct that the Washington
Supreme Court has interpreted this element to require only
negligence. State v. Kilburn, 84 P.3d 1215, 1221 (Wash.
2004) (holding that the inquiry is “whether a reasonable
person in the defendant’s place would foresee that in context
the listener would interpret the statement as a serious threat
or a joke”). Nevertheless, Werle’s argument is unavailing
because § 4B1.2(a)(1) only requires that the state crime has
as “an element . . . the threatened use of physical force.”
(emphasis added). It is clear that the first element of a
conviction under § 9A.46.020(2)(b)(ii)—a knowing threat
of intent to kill someone—requires a sufficient mens rea, and
so that element by itself may render the conviction a crime
of violence. That other elements of the statute may be
satisfied with a lower mens rea adds nothing to our inquiry
UNITED STATES V. WERLE 9
under § 4B1.2(a)(1), because requiring the state to prove
additional elements only narrows the reach of the crime.
2
Werle also argues that § 9A.46.020(2)(b)(ii) is
overbroad because it covers indeterminate threats to kill in
the distant future. See RCW § 9A.46.020(1)(a)(i), (2)(b)(ii)
(reaching threats to kill “immediately or in the future”).
According to Werle, a threatened use of physical force must
convey some prospect that the force could immediately
occur. But we find no support for any such immediacy
requirement in the language of § 4B1.2(a)(1).
In arguing otherwise, Werle points us to our decision in
Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007).
In Malta-Espinoza, we considered whether California Penal
Code § 646.9, criminalizing stalking, was categorically a
crime of violence. Id. at 1083. Because the California statute
reached distant threats that the defendant had no actual intent
to carry out, we concluded that the statute was not
categorically a crime of violence. Id. at 1083–84. We
reasoned that such distant threats “created no substantial risk
of application of physical force” and therefore could not
qualify as a crime of violence. Id. at 1083. But importantly,
we based that determination on the definition of crime of
violence in the residual clause of 18 U.S.C. § 16(b), rather
than the force clause of § 4B1.2(a)(1). See id. And under the
language of § 16(b)’s residual clause, the state crime must
have included “a substantial risk that physical force against
the person or property of another may be used in the course
of committing the offense.”
By contrast, § 4B1.2(a)(1) does not contain the
“substantial risk” language used in § 16(b). Rather,
§ 4B1.2(a)(1) largely mirrors the language of § 16(a) and
10 UNITED STATES V. WERLE
only requires a “threatened use of physical force,” regardless
of any substantial risk that the force will actually occur. 2 For
example, in Arellano Hernandez v. Lynch, we held that a
statute criminalizing threats to kill, “even if there is no intent
of actually carrying [] out [the threat],” categorically
constituted a crime of violence under § 16(a). 831 F.3d 1127,
1130–31 (9th Cir. 2016) (quoting Cal. Penal Code § 422(a)
(2009)). Notably absent in our analysis in Arellano
Hernandez is any concern over whether those threats created
a “substantial risk” of force being applied. See id. Indeed, we
similarly rejected the defendant’s attempt to blur the lines
between § 16(a) and § 16(b). See id. at 1131–32 (rejecting
defendant’s reliance on the residual clause). Thus, Werle’s
reliance on Malta-Espinoza and § 16(b) is misplaced.
3
Lastly, Werle argues that a threat to kill does not
necessarily include a threatened use of violent physical
force, as required by Johnson v. United States, 559 U.S. 133
(2010), because one could kill someone via the application
of poison or other non-forceful means. Werle may have luck
with this argument in other circuits, see, e.g., Whyte v.
Lynch, 807 F.3d 463, 469 (1st Cir. 2015), but we have
categorically rejected it, see Cornejo-Villagrana v. Sessions,
870 F.3d 1099, 1106 (9th Cir. 2017) (“Therefore, ‘violent
force’ is present when there is ‘physical injury’ for purposes
of a ‘crime of violence.’”); United States v. De La Fuente,
353 F.3d 766, 770–71 (9th Cir. 2003) (threat to injure
constitutes a threatened use of force even if the threat was to
2
While § 16(a) includes threats of physical force to property, its
language is otherwise “identical in all material respects” to
§ 4B1.2(a)(1). See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019 &
n.10 (9th Cir. 2006).
UNITED STATES V. WERLE 11
poison the victim); Melchor-Meceno, 620 F.3d at 1186
(“One cannot knowingly place another in fear of being
poisoned without threatening to force the poison on the
victim.”). By threatening to kill, Werle necessarily
threatened violent physical force.
III
Because a conviction under § 9A.46.020(2)(b)(ii)
necessarily includes a “threatened use of physical force
against the person of another,” we hold that a conviction
under that section is categorically a crime of violence under
§ 4B1.2(a)(1).
The judgment of the district court is AFFIRMED.