WHAT IS A CRIME OF VIOLENCE?

Weekly Blog for 3.15.19 by Merle Kahn, Esq.

What is a Crime of Violence?

The BIA has been remarkably quiet since December.  They issued their last published decision on December 20, 2018.  And the Attorney General has not issued a decision since Jeff Sessions resigned.  I am not sure if we will be getting a flurry of activity in the coming weeks or what will happen.  The Ninth Circuit did not issue any published immigration decisions this week, but they did issue a criminal decision that seems to ignore Supreme Court precedent.  The case is about what constitutes a crime of violence and it gives a good explanation of the various ways to categorize crimes of violence.  That said it is puzzling because it seems to ignore the Supreme Court’s decisions in Johnson v. United States and in Sessions v. Dimaya; both cases found that the residual clause for a crime of violence was unconstitutionally vague because the ordinary case analysis was unconstitutionally vague.  Yet the Ninth Circuit used it in its analysis of this case; but found that the defendant’s crime was not a crime of violence under the residual clause.  I’m still scratching my head.

NINTH CIRCUIT

A Washington State Conviction for Felony Harassment is Categorically a Crime of Violence

In an immigration-adjacent case the Ninth Circuit held that a conviction for felony harassment is categorically a crime of violence under the federal sentencing guidelines.  The question of what exactly is a “crime of violence” comes up in three scenarios:  1) in immigration cases; 2) in federal sentencing guideline cases; and 3) in the Armed Career Criminal Act (ACCA) cases.  This week we are dealing with a federal sentencing guideline case, but the logic transfers to immigration cases.  As I said, it’s immigration-adjacent.  Washington State convicted the defendant, Kenneth Door of second-degree assault and felony harassment.  The Ninth Circuit found that the felony harassment conviction was a crime of violence; but that the second-degree assault conviction was not. 

Facts

In 2011 the government (for some unknown reason) searched Kenneth Door’s house and found two handguns, some magazines loaded with ammunition, body armor, a seal bomb, digital scales, drug packaging materials, and two drug pipes containing methamphetamine residue.  In 2012 the government indicted Mr. Door for being a felon in possession of a firearm, a violent felon in possession of body armor, and a felon in possession of an explosive device.  In 2014, a jury convicted him on all counts.  You might be wondering why Mr. Door was a felon.  Mr. Door had two previous convictions for second-degree assault and felony harassment.  Because he had two previous convictions the district court gave him a hefty sentence under the sentencing guidelines.  Mr. Door argued that the prior convictions for assault and harassment were not crimes of violence and the District Court’s enhanced sentence was wrong under the sentencing guidelines.  The Ninth Circuit disagreed.

Legal Analysis

The Ninth Circuit found they had jurisdiction over the case and that the issue of whether a state crime constitutes a crime of violence under the federal sentencing guidelines is subject to de novo review.  First, the Ninth Circuit noted that they use the categorical approach to determine whether a state crime is a crime of violence.  (Quick reminder:  under the categorical approach the court compares the elements of the statute of conviction with the federal generic definition of the crime to see if there is a match).  The Ninth Circuit then looks at the 2013 Sentencing Guidelines and finds there are three definitions of a “crime of violence”:

1. The Force Clause – “has as an element the use, attempted use, or threatened use of physical force against the person of another”
2. Enumerated Clause – “is burglary of a dwelling, arson, or extortion, involves use of explosives” or,
3. Residual Clause – “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a) (2013).  The 2018 Sentencing Guidelines eliminates the residual clause; probably because the Supreme Court found it unconstitutional.  You can read the 2018 Sentencing Guidelines here to compare it for reference.

The Ninth Circuit then explains how to apply the categorical analysis to each one of the three forms of a crime of violence.  First, the Ninth Circuit kindly explains how to define a generic offense.  They recommend looking to the common law, the Model Penal Code, treatises, and the laws of other states.  (I always forget about the Model Penal Code).  Once you have the generic definition you are good to go.

Force Clause

To determine whether a prior conviction is a crime of violence under the “force clause” the question is whether the crime “has as an element the use or threatened use of physical force against the person of another, with ‘physical force’ understood to mean in this context ‘violent force – that is, force capable of causing pain or physical injury to another person.”  [United States v.] Edling, 895 F.3d [1153] at 1156 [(9th Cir. 2018)] (quoting Johnson, 559 U.S. at 140).”  United States v. Door, No. 17-30165 slip op. at *8 (March 12, 2019). 

Residual Clause

Here is where the case gets weird.  The Ninth Circuit notes that they use a two-part test to determine whether an offense is categorically a crime of violence under the residual clause in § 4B1.2(a)(2).  (Remember, the Supreme Court has twice declared that the residual clause is unconstitutionally vague:  first in Johnson v. United States, 135 S. Ct. 2551 (2015); and then in Sessions v. Dimaya, 138 S. Ct. 1204 (2018).  In 2016, the Sentencing Guidelines eliminated the residual clause.)  Using this two-part test, the Ninth Circuit first determined whether “the ‘conduct encompassed by the elements of the offense, in the ordinary case, must present a serious potential risk of physical injury to another.’”  Door, slip op. at *9. 

I just want to stop here, and say what?  The Supreme Court in Johnson v. United States held that the residual clause, and more specifically, the ordinary case analysis was unconstitutionally vague under the ACCA.  The Court then expanded this analysis to include a crime of violence as defined under 18 U.S.C. § 16 in Dimaya.  The Supreme Court held that layering the potential risk of injury to an ordinary case analysis made the statute unconstitutionally vague. 

“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; the law is full of instances where a man’s fate depends on his estimating rightly … some matter of degree[.] The residual clause, however, requires application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain [,] this abstract inquiry offers significantly less predictability than one that deals with the actual … facts.” *.*.*.

As the Court again put the point, in the punch line of its decision: “By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause” violates the guarantee of due process.

Dimaya at 1214 (internal quotations omitted). 

I don’t understand how the residual clause and the ordinary case analysis under the Sentencing Guidelines is not unconstitutionally vague after Johnson and Dimaya.  It’s almost as though the panel ignored that entire line of jurisprudence.  I don’t understand why the Ninth Circuit even considered it.

Holding

But the Ninth Circuit held that Mr. Door’s prior conviction for felony harassment is a crime of violence under the force clause.  A conviction where one of the elements includes a “threat to kill” constitutes a crime of violence under the force clause.  Door, slip op. at *10-11.  Yet the Court then weirdly used the residual clause to hold that second degree assault is not a crime of violence because “the offense, in the ordinary case, does not “present a serious potential risk of physical injury to another.”  Door, slip op. at *15.  The Ninth Circuit remanded the case for sentencing.  I’m scratching my head over this case.

United States v. Door, No. 17-30165 (9th Cir. March 12, 2019).