Submitted February 7, 2018 [*] Seattle, Washington
from the United States District Court for the Eastern
District of Washington D.C. No. 2:16-cr-00087-TOR-1 Thomas O.
Rice, Chief District Judge, Presiding
Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit
Judges, and EDUARDO C. ROBRENO, [**] District Judge.
panel affirmed (1) the district court's denial of the
defendant's motion to dismiss a count charging him with
possession of body armor by a violent felon in violation of
18 U.S.C. §§ 931(a)(1) and 924(a)(7), and (2) its
interpretation and application of the Sentencing Guidelines.
931(a) prohibits a person from possessing body armor if he or
she has been convicted of a felony that is a "crime of
violence" as defined in 18 U.S.C. § 16. The panel
held that attempted first degree murder under Washington law
constitutes a "crime of violence" under 18 U.S.C.
§ 16(a) because it requires specific intent and has as
an element an intentional, threatened, attempted, or actual
use of force.
panel held that, for the same reasons, attempted first degree
murder under Washington law is a "crime of
violence" under USSG § 4B1.2(a).
Matthew Campbell, Federal Defenders of Eastern Washington
& Idaho, Spokane, Washington, for Defendant-Appellant.
J.C. Jacobs III, Assistant United States Attorney; Joseph H.
Harrington, United States Attorney; United States
Attorney's Office, Spokane, Washington; or
D. Smith, Jr., Judge
Keith Bennett Studhorse, II, appeals (1) the district
court's denial of his motion to dismiss Count 2 of the
indictment, which charged him with possession of body armor
by a violent felon, and (2) the district court's
interpretation and application of the United States
Sentencing Guidelines. He argues that the district court
erred in denying his motion to dismiss and in calculating his
sentence because it improperly determined that
Studhorse's prior Washington State conviction for
attempted first degree murder qualified as a "crime of
violence." We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C § 3742, and we affirm.
AND PROCEDURAL BACKGROUND
17, 2016, a two-count indictment was filed against
Defendant-Appellant Keith Bennett Studhorse, II, charging him
in one count with a violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (felon in possession of a firearm),
and in a second count with a violation of 18 U.S.C.
§§ 931(a)(1) and 924(a)(7) (violent felon in
possession of body armor). Studhorse moved to dismiss Count 2
on July 8, 2016. Studhorse argued that dismissal was required
because his three relevant prior convictions under Washington
state law (for attempted first degree murder, second degree
manslaughter, and riot with a deadly weapon) did not
constitute crimes of violence as defined in 18 U.S.C. §
16. In its response, the Government argued that attempted
first degree murder and riot constituted crimes of violence;
it declined to address whether second-degree manslaughter was
a "crime of violence" as well.
28, 2016, the district court held a hearing on
Studhorse's motion. The court denied the motion on August
2, 2016, on the basis that attempted first degree murder is a
"crime of violence." Studhorse then entered a plea
of guilty pursuant to a conditional plea agreement that
permitted him to later challenge the denial of his motion and
presentence investigation report (PSR) was prepared in
advance of Studhorse's sentencing. The PSR relied on the
district court's determination that Studhorse's prior
conviction for attempted first degree murder qualified as a
"crime of violence, " and calculated that
Studhorse's base offense level was 20, total adjusted
offense level was 17, and criminal history category was IV.
This resulted in an advisory guideline range of 37-46 months
sentencing on December 7, 2016, Studhorse objected to the
PSR's categorization of his prior conviction for
attempted first degree murder as a "crime of
violence." The Government also objected to the PSR,
arguing that Studhorse's two other convictions for
second-degree manslaughter and riot should be counted as
crimes of violence. Studhorse disputed this, and the district
court overruled the Government's objections, but affirmed
its holding with regard to Studhorse's attempted first
degree murder conviction. The district court adopted the
PSR's sentencing calculations,  though it ultimately varied
upward to sentence Studhorse to 84 months' incarceration.
Studhorse timely appealed.
review de novo both the district court's denial of
Studhorse's motion to dismiss Count 2 of the indictment,
see United States v. Gomez-Rodriguez, 96 F.3d 1262,
1264 (9th Cir. 1996) (en banc), and its interpretation and
application of the Sentencing Guidelines, e.g., ...