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United States v. Myers

United States District Court, E.D. Washington

August 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER MYERS, Defendant.

          MEMORANDUM OPINION AND ORDER RE: SENTENCING HEARING

          JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE

         On August 18, 2017, the court held a sentencing hearing in this matter. Defendant was present, in custody, and represented by Colin Prince of the Federal Defenders of Eastern Washington and Idaho. Assistant United States Attorney Stephanie Van Marter represented the Government. This Order memorializes and supplements the court's oral rulings.

         On June 9, 2017, Defendant pled guilty to the Indictment which charged him with being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). See (ECF No. 68). At the time of sentencing, Defendant had innumerable adult convictions, including Washington state convictions for Second Degree Assault with a Deadly Weapon and Conspiracy to Deliver Marijuana. The parties disagreed as to whether either or both of those two convictions qualifies as a “crime of violence” or “controlled substance offense.”

         I. Offense Level Calculations

         The Base Offense Level for Felon in Possession of Firearm is 14 if the defendant “was a prohibited person at the time the defendant committed the instant offense.” U.S.S.G. § 2K2.1(a)(6). However, the Base Offense Level rises to 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). The Base Offense Level rises to 24 if the defendant has sustained at least two convictions for a crime of violence or controlled substance offense. U.S.S.G. § 2K2.1(a)(2).

         A “crime of violence” means “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)(1); see U.S.S.G. § 2K2.1, App. Note 1 (“‘Crime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”).

         “Controlled substance offense” means “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b); see U.S.S.G. § 2K2.1, App. Note 1 (“‘Controlled substance offense' has the same meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.”). This includes “aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2, App. Note 1.

         A. Second Degree Assault

         On July 13, 2006, Defendant was sentenced based on his plea of guilty to two counts of Second Degree Assault- Deadly Weapon. (ECF No. 87 at ¶¶37-40). The Ninth Circuit holds Second Degree Assault with a Deadly Weapon under Washington law “is categorically a crime of violence.” U.S. v. Jennen, 596 F.3d 594, 600 (9th Cir. 2010); see also, U.S. v. Lawrence, 627 F.3d 1281 (9th Cir. 2010); Cain v. U.S., No. 08-CR-030-JLQ, 2010 WL 5173159 (E.D. Wash. Dec. 14, 2010) (citing cases). Jennen has not been overruled, and has recently been cited as controlling authority on whether assault with a deadly weapon is a “crime of violence.” See U.S. v. Perez-Silvan, 861 F.3d 935, 937 (9thCir. June 28, 2017).

         In an unpublished decision issued on May 24, 2017, a Ninth Circuit panel found the Washington Second Degree Assault statute overbroad and held a conviction under the statute cannot form a predicate offense under the United States Sentencing Guidelines. See U.S. v. Harrison, __Fed. Appx.__, 2017 WL 2274994 (9th Cir. May 24, 2017). However, the Harrison decision did not cite Jennen nor suggest it was overruling Jennen. The holding in Harrison was based on the Government's concession the statute was overbroad. The panel did not address specific subsections of the statute which set forth separate crimes of second degree assault which each require different elements to be proven. Where, as here and in Jennen, a defendant is charged with violating a specific subsection of the assault statute (assault with a deadly weapon) as opposed to the entire statute, there is no need to evaluate the entire statute for overbreadth or divisibility. Additionally, Harrison was issued before Perez-Silvan. Perez-Silvan relies on Jennen without suggesting it has been overruled and is a published opinion. Jennen remains controlling authority.

         Accordingly, this court found Defendant's conviction for Second Degree Assault with a Deadly Weapon is categorically a crime of violence.

         B. Conspiracy to Deliver Marijuana

         Defendant argued his conviction for Conspiracy to Deliver Marijuana is not categorically a “controlled substance offense” because the Washington conspiracy statute is overbroad compared to federal law. (ECF No. 73 at 2-3). Defendant also argued the mens rea for aiding and abetting is lower under Washington law than required under federal law. (ECF No. 73 at 3). Defendant lastly argued his conviction was not punishable by more than one year incarceration. (ECF No. 73 at 3-4).

         “In assessing whether a prior state law conviction qualifies as a controlled substance offense under the Guidelines, [the Ninth Circuit] employ[s] the categorical approach from Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” U.S. v. Charles, 581 F.3d 927, 934 (9th Cir. 2009). The categorical approach requires the court to “‘look solely to the fact of conviction and the statutory definition of the prior offense' when determining whether the offenses qualifies under a definition in the Guidelines.” U.S. v. Rendon-Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007) ...


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