FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30096
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00028-
MJP-1
ROBBY LEE ROBINSON,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted May 11, 2017
Seattle, Washington
Filed August 25, 2017
Before: M. Margaret McKeown, Carlos T. Bea,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. ROBINSON
SUMMARY *
Criminal Law
Vacating a sentence and remanding for resentencing, the
panel held that the Washington crime of second-degree
assault, Wash. Rev. Code § 9A.36.021, is not a “crime of
violence” within the meaning of U.S.S.G. § 2K2.1.
The government did not dispute, and the panel agreed,
that subsection 9A.36.021(1)(e) criminalizes conduct that is
not covered by section 2K2.1’s definition of “crime of
violence.” The panel held that section 9A.36.021 is
indivisible, as it defines a single crime and provides seven
different “means” by which a person can commit that crime.
The panel concluded that the district court therefore erred in
determining that the defendant’s prior second-degree assault
conviction was for a crime of violence under section 2K2.1.
COUNSEL
Lynn C. Hartfield (argued), Law Office of Lynn C. Hartfield
LLC, Denver, Colorado, for Defendant-Appellant.
Michael Symington Morgan (argued), Assistant United
States Attorney; Annette L. Hayes, United States Attorney;
United States Attorney’s Office, Seattle, 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. ROBINSON 3
OPINION
BEA, Circuit Judge:
This case presents the question whether the Washington
crime of second-degree assault, see Wash. Rev. Code
§ 9A.36.021, is a “crime of violence” within the meaning of
section 2K2.1 of the U.S. Sentencing Guidelines. We
conclude that it is not, and we vacate the defendant’s
sentence and remand for resentencing.
Background
During an argument with his girlfriend’s mother, Robby
Robinson produced a .22 caliber assault rifle from a vehicle
that was parked outside the mother’s house. Robinson’s
girlfriend and her son both called 911. Robinson fled the
scene before the police arrived but left the assault rifle
behind. After responding to the 911 calls, police officers
searched the house and found multiple firearms, including a
.22 caliber assault rifle on which Robinson’s DNA was later
found.
Early the next morning, police officers found Robinson
hiding in his sister’s car. The officers arrested Robinson,
searched the car, and found hidden under the passenger seat
a backpack containing a Ruger .44 caliber magnum revolver.
Later, Robinson called his girlfriend from jail, asked her to
remove the revolver from the car, and made other statements
that the district court stated “implied that he ha[d] given [the
gun] to his sister to keep.”
Robinson was indicted on two counts of being a felon in
possession of firearms in violation of 18 U.S.C. § 922(g)(1).
The first count related to the guns found at the mother’s
house, including the assault rifle; the second related to the
4 UNITED STATES V. ROBINSON
revolver found in his sister’s car. Robinson agreed to a bench
trial, and the district court found him guilty on both counts.
At Robinson’s sentencing hearing, the district court
noted that Robinson had previously pleaded guilty in
Washington state court to one felony count of second-degree
assault in violation of section 9A.36.021 of the Revised
Code of Washington. 1 The district court ruled that this
conviction was a “felony conviction of . . . a crime of
violence” under section 2K2.1 of the U.S. Sentencing
Guidelines (the “Guidelines”), the section that covered
Robinson’s conviction under § 922(g)(1). Accordingly, the
district court ruled that Robinson’s base offense level was
twenty-two. 2 The court then applied a four-level
enhancement for “[u]s[ing] or possess[ing] any firearm . . .
in connection with another felony offense,” U.S.S.G.
§ 2K2.1(b)(6)(B), and a two-level enhancement for
obstruction of justice based on, inter alia, the phone call
from jail in which Robinson asked his girlfriend to hide his
revolver. See U.S.S.G. § 3C1.1. The district court calculated
Robinson’s sentencing range to be 110–137 months and
imposed a below-Guidelines sentence of ninety months’
1
Section 9A.36.021 provides that a person commits second-degree
assault if, inter alia, “he or she . . . [i]ntentionally assaults another and
thereby recklessly inflicts substantial bodily harm.” See Wash. Rev.
Code § 9A.36.021(1)(a). With one exception not relevant here, second-
degree assault is a class B felony punishable by up to ten years’
imprisonment. See id. §§ 9A.36.021(2), 9A.20.021(1)(b).
2
Section 2K2.1(a)(3) of the Guidelines provides for a base offense
level of twenty-two “if . . . the offense involved [certain high-capacity
firearms] and . . . the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of . . . a crime of
violence.”
UNITED STATES V. ROBINSON 5
imprisonment. 3 Robinson timely appealed, challenging only
the district court’s ruling that his prior second-degree assault
conviction was for a “crime of violence.”
Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether a state-law crime constitutes a crime
of violence under the Guidelines. See United States v. Crews,
621 F.3d 849, 851 (9th Cir. 2010).
Discussion
To determine whether a defendant’s prior conviction is a
crime of violence under the Guidelines, we apply the
categorical approach first outlined in Taylor v. United States,
495 U.S. 575 (1990), and later clarified in Descamps v.
United States, 133 S. Ct. 2276 (2013), and Mathis v. United
States, 136 S. Ct. 2243 (2016). Under this approach, “we
inquire first ‘whether the elements of the crime of conviction
sufficiently match the elements of the generic federal
[definition of a crime of violence].’” United States v.
Arriaga-Pinon, 852 F.3d 1195, 1198–99 (9th Cir. 2017)
(alterations omitted) (quoting Mathis, 136 S. Ct. at 2248).
Then, “[i]f the statute is overbroad and thus not a categorical
3
As noted above, Robinson’s base offense level was twenty-two;
with the enhancements, it was twenty-eight. Robinson’s criminal history
category was IV, which yielded a sentencing range of 110–137 months.
Robinson argues (and the government does not dispute) that if his prior
conviction was not a crime of violence under section 2K2.1, then his base
offense level would be twenty, his total offense level would be twenty-
six, and his Guidelines sentencing range would be 92–115 months. Even
though the sentence would fall below the correctly calculated Guideline
range, the error was not harmless. See United States v. Munoz-
Camarena, 631 F.3d 1028, 1030–31 (9th Cir. 2011). The government
does not argue otherwise.
6 UNITED STATES V. ROBINSON
match, we next ask whether the statute’s elements are also
an indivisible set.” Id. at 1199. “Finally, if the statute is
divisible, then the modified categorical approach applies and
‘a sentencing court looks to a limited class of documents . . .
to determine what crime, with what elements, a defendant
was convicted of.’” Id. (quoting Mathis, 136 S. Ct. at 2249).
If that crime falls within the generic federal definition, then
the defendant’s conviction qualifies as a crime of violence.
On appeal, Robinson argues that the Washington crime
of second-degree assault is not a crime of violence under the
categorical approach, because section 9A.36.021 is both
overbroad (i.e., it covers more conduct than the generic
federal definition of a crime of violence) and indivisible.4
The government responds that Robinson’s argument is
foreclosed by this Court’s decision in United States v.
Lawrence, 627 F.3d 1281 (9th Cir. 2010), in which we held
that a prior conviction for second-degree assault under
subsection 9A.36.021(1)(a)—the same subsection used to
convict Robinson here—was categorically a “violent
felony” under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). In the alternative, the government argues
that Washington second-degree assault is a crime of
violence, because section 9A.36.021 is divisible and because
subsection 9A.36.021(1)(a) meets the generic federal
definition.
4
Alternatively, Robinson argues that even if section 9A.36.021 is
divisible, the specific subsection under which he was charged—
9A.36.021(1)(a)—is not categorically a crime of violence because it does
not require the intentional use of violent force. See United States v.
Dixon, 805 F.3d 1193 (9th Cir. 2015). Because we agree with Robinson
that section 9A.36.021 is both overbroad and indivisible, we do not reach
this second argument.
UNITED STATES V. ROBINSON 7
Lawrence Is Not Controlling.
First, the government argues that this case is controlled
by United States v. Lawrence. There, we held that a
defendant’s prior conviction for second-degree assault under
subsection 9A.36.021(1)(a) was categorically a “violent
felony” under the ACCA. 5 See Lawrence, 627 F.3d at 1288.
We explained that because “[s]ection 9A.36.021(1)(a) . . .
requires not just an intentional assault, but an intentional
assault that results in substantial bodily harm,” and because
“[t]he Washington criminal code defines ‘substantial bodily
harm’ as ‘bodily injury which involves a temporary but
substantial disfigurement [and similar],’” the defendant’s
prior second-degree assault conviction “necessarily
require[d] force that [went] beyond the ‘least touching[]’ and
represents ‘actual force’ that is violent in nature.” Id. at 1287
(citations and some internal quotation marks omitted). Thus,
we held that the prior second-degree assault conviction was
for a “violent felony” under the ACCA.
If Lawrence were still good law, the government would
be correct that it would dispose of Robinson’s case. But
although Lawrence was decided after Taylor, it came before
Descamps and Mathis, so we had no occasion in Lawrence
to determine whether section 9A.36.021 is divisible.
Moreover, as we explain below, we conclude that
section 9A.36.021 is in fact indivisible. Thus, Lawrence’s
conclusion that Washington second-degree assault is a
violent felony under the ACCA—and, by extension, a crime
of violence under the Guidelines—is “clearly irreconcilable
5
We have held that the definition of a crime of violence under the
Guidelines and the definition of a violent felony under the ACCA are
“identical.” United States v. Ladwig, 432 F.3d 1001, 1005 n.9 (9th Cir.
2005) (citation omitted).
8 UNITED STATES V. ROBINSON
with the reasoning or theory” of Descamps and Mathis.
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc). We therefore decline to follow it here.
The Washington Crime of Second-Degree Assault Is
Not Categorically a Crime of Violence.
1. The Government Does Not Dispute, and We
Agree with Robinson, that Section 9A.36.021 is
Overbroad.
Applying the categorical approach, our first task is to
determine “whether the elements of [Robinson’s] crime of
conviction sufficiently match the elements of the generic
federal [definition of a crime of violence.]” Arriaga-Pinon,
852 F.3d at 1199 (citations and alterations omitted). Thus,
we must determine whether a person can commit the
Washington crime of second-degree assault through any of
the seven statutory alternatives listed in
6
section 9A.36.021(1) without committing a crime of
violence within the meaning of the Guidelines.
6
In full, section 9A.36.021(1) reads: “A person is guilty of assault
in the second degree if he or she, under circumstances not amounting to
assault in the first degree:
(a) Intentionally assaults another and thereby
recklessly inflicts substantial bodily harm; or
(b) Intentionally and unlawfully causes substantial
bodily harm to an unborn quick child by intentionally
and unlawfully inflicting any injury upon the mother
of such child; or
(c) Assaults another with a deadly weapon; or
UNITED STATES V. ROBINSON 9
Guidelines section 2K2.1 defines a “crime of violence,”
in relevant part, as “any offense . . . that . . . has as an element
the use, attempted use, or threatened use of physical force
against the person of another.” See Application Note 1 to
U.S.S.G. § 2K2.1 (incorporating by reference the definition
of “crime of violence” given in U.S.S.G. § 4B1.2(a)). As
used in this definition, “the phrase ‘physical force’ means
violent force—that is, force capable of causing physical pain
or injury to another person.” Johnson v. United States,
559 U.S. 133, 140 (2010) (interpreting identical language
used in 18 U.S.C. § 924(e)(2)(B)(i), a provision of the
ACCA); see also Ladwig, 432 F.3d at 1005 n.9 (“The basic
definition of ‘violent felony’ under section 924(e)(2)(B)(i)[]
is identical to the definition of ‘crime of violence’ under
U.S.S.G. § 4B1.2(1)(i)[].” (citations and alterations
omitted)).
Subsection 9A.36.021(1)(e), the fifth of section
9A.36.021(1)’s seven subsections, provides that a person
commits second-degree assault if “he or she . . . [w]ith intent
to commit a felony, assaults another.” Robinson argues that
this subsection provides a means of committing second-
degree assault that does not necessarily require the actual,
(d) With intent to inflict bodily harm, administers to or
causes to be taken by another, poison or any other
destructive or noxious substance; or
(e) With intent to commit a felony, assaults another; or
(f) Knowingly inflicts bodily harm which by design
causes such pain or agony as to be the equivalent of
that produced by torture; or
(g) Assaults another by strangulation or suffocation.”
10 UNITED STATES V. ROBINSON
attempted, or threatened use of force capable of causing
physical pain or injury to another. 7 The government did not
dispute Robinson’s argument before the district court or on
appeal, 8 and we agree with Robinson that subsection (1)(e)
criminalizes conduct that is not covered by section 2K2.1’s
definition of “crime of violence.”
2. Section 9A.36.021 Is Indivisible.
We next determine whether section 9A.36.021 is
divisible—that is, whether its seven statutory alternatives
present seven different “means” by which a person can
commit the single crime of second-degree assault or whether
they instead present the “elements” of seven separate sub-
crimes. See Mathis, 136 S. Ct. at 2248–50. This, in turn,
depends on whether a jury must unanimously agree on which
of the seven statutory alternatives a defendant committed to
return a conviction. See id. at 2248 (“‘Elements’ are the
‘constituent parts’ of a crime’s legal definition—the things
7
In his briefing, Robinson does not provide any examples of how a
person might “assault another” with “intent to commit a felony” but
without using violent force. One example might be where a person
touches a minor’s body in a sexual manner. See Wash. Rev. Code
§ 9A.44.083 (providing that a person commits felony of first-degree
child molestation if he “has . . . sexual contact with another who is less
than twelve years old and not married to the perpetrator and the
perpetrator is at least thirty-six months older than the victim”); State v.
Smith, 154 P.3d 873, 875 (Wash. 2007) (en banc) (defining “assault” as,
inter alia, “an intentional touching . . . that is harmful or offensive
regardless of whether any physical injury is done to the person”).
8
In its answering brief, the government states: “Because
Washington’s second-degree assault statute includes one variant that
does not require ‘physical force’ within the meaning of Johnson
(subsection (1)(e)), the statute as a whole does not categorically define a
crime of violence under a Taylor analysis.”
UNITED STATES V. ROBINSON 11
the ‘prosecution must prove to sustain a conviction.’ At a
trial, they are what the jury must find beyond a reasonable
doubt to convict the defendant; and at a plea hearing, they
are what the defendant necessarily admits when he pleads
guilty.” (citations omitted)). If jury unanimity is required,
then the alternatives are elements, and under the “modified”
categorical approach, we may analyze subsection (1)(a) in
isolation to determine whether it is categorically a crime of
violence. See id. at 2248–50. By contrast, if a jury could
return a conviction without agreeing on which particular
statutory alternative applied, then the statute is indivisible
and does not categorically define a crime of violence.
We begin, as Mathis instructs, with the text of section
9A.36.021. See id. at 2256 (“[A] statute may itself identify
which things must be charged (and so are elements) and
which need not be (and so are means).”). Nothing here
clarifies whether the seven alternatives are elements or
means. The statute does not explicitly state whether a jury
could return a conviction without agreeing unanimously on
a particular alternative. Moreover, because all of the
alternatives carry the same punishment, 9 the Due Process
Clause does not require that any such agreement be reached.
See id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)).
Next, we turn to state decisional law. We find clearer
guidance here. For example, in State v. Smith, 154 P.3d 873
(Wash. 2007) (en banc), the Washington Supreme Court
9
See §§ 9A.36.021(2), 9A.20.020(1)(a)–(b) (providing that second-
degree assault is a class B felony, punishable by up to ten years’
imprisonment, unless it involves “sexual motivation,” in which case it is
a class A felony, punishable by up to a lifetime term of imprisonment).
12 UNITED STATES V. ROBINSON
stated that “the second degree criminal assault statute
articulates a single criminal offense and then provides six
separate subsections by which the offense may be
committed.” Id. at 876 (emphasis added) (footnote omitted)
(citing Wash. Rev. Code § 9A.36.021(1)(a)–(f)). 10 The court
explained that “[e]ach of these six subsections represents an
alternative means of committing the crime of second degree
assault.” Id. (emphasis added). And a few paragraphs earlier,
it noted that “when the crime charged can be committed by
more than one means, the defendant does not have a right to
a unanimous jury determination as to the alleged means used
to carry out the charged crime.” Id. at 875 (emphasis added).
Taking these statements together, Smith stands for the
proposition that a jury need not unanimously agree on which
of the “alternative means” listed in § 9A.36.021(1) the
defendant committed.
Later Washington cases buttress this conclusion. In State
v. Peterson, 230 P.3d 588 (Wash. 2010) (en banc), for
example, the Washington Supreme Court cited its decision
in Smith for the proposition that “[a]n alternative means
crime is one ‘that provide[s] that the proscribed criminal
conduct may be proved in a variety of ways.’” Id. at 591
(some alterations in original) (quoting Smith, 154 P.3d at
873). Similarly, the Washington Supreme Court has stated
that “when there is sufficient evidence to support each of the
alternative means of committing the crime, express jury
unanimity as to which means is not required.” State v.
Owens, 323 P.3d 1030, 1032 (Wash. 2014) (en banc).
10
Section 9A.36.021(1) has since been amended to include a
seventh subdivision, which prohibits “[a]ssault[] . . . by strangulation or
suffocation.” Id. § 9A.36.021(1)(g).
UNITED STATES V. ROBINSON 13
Washington’s pattern jury instructions for criminal cases
(“WPIC”) also demonstrate that section 9A.36.021(1) lists
alternative “means.” 11 WPIC 35.12 is entitled “Assault—
Second Degree (Alternate Means)—Inflict Substantial
Bodily Harm Or With Deadly Weapon—Elements.” WPIC
35.12 states, in relevant part:
To convict the defendant of the crime of
assault in the second degree, each of the
following two elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about (date), the defendant:
[(a) intentionally assaulted (name of
person) and thereby recklessly inflicted
substantial bodily harm;] [or]
[(b) assaulted (name of person) with a
deadly weapon;] and
(2) That this act occurred in the State of
Washington.
If you find from the evidence that element (2)
and either alternative element (1)(a) or (1)(b)
have been proved beyond a reasonable doubt,
11
These jury instructions are drafted by the Washington State
Supreme Court’s Pattern Instructions Committee. See Pattern Jury
Instructions, https://www.courts.wa.gov/index.cfm?fa=home.contentDi
splay&location=PatternJuryInstructions (last visited August 15, 2017).
Though the instructions are “often treated as persuasive,” they are “not
authoritative primary sources of the law” and are “not binding on trial
courts.” See WPIC 0.10 (Introduction to Washington’s Pattern Jury
Instructions for Criminal Cases) (internal quotation marks omitted).
14 UNITED STATES V. ROBINSON
then it will be your duty to return a verdict of
guilty. To return a verdict of guilty, the jury
need not be unanimous as to which of
alternatives (1)(a) or (1)(b) has been proved
beyond a reasonable doubt, as long as each
juror finds that either (1)(a) or (1)(b) has
been proved beyond a reasonable doubt.
(emphasis added) (brackets in original). According to the
instruction, a jury can convict a defendant of assault in the
second degree without unanimously agreeing on whether the
defendant violated subsection (1)(a) (intentional assault
which recklessly inflicts substantial bodily harm) or
subsection (1)(c) (assault with a deadly weapon). 12 This
instruction suggests that the listed alternatives are means, not
elements, and that section 9A.36.021(1) is therefore
indivisible.
12
For example, suppose that a defendant were charged with second-
degree assault in connection with the beating of a victim in a dark
alleyway. The victim testifies that although he couldn’t see whether his
assailants were brandishing weapons, it felt like he was being punched
and kicked. Moreover, the victim testifies that his assailants struck him
in the face and broke his nose.
An accomplice to the beating testifies (perhaps in exchange for
immunity) that the defendant in fact struck the victim with a baseball
bat—a deadly weapon—but that the defendant never struck the victim in
the face and hence could not have broken the victim’s nose. If six jurors
believed the victim’s testimony—that the defendant had not used a
deadly weapon but had recklessly inflicted substantial bodily harm by
breaking the victim’s nose—and six jurors believed the accomplice’s
testimony—that the defendant had used a deadly weapon during the
assault but had not recklessly inflicted substantial bodily harm—the jury
could nonetheless return a conviction, because subsections (1)(a) and
(1)(c) are means, not elements, of the crime of second-degree assault.
UNITED STATES V. ROBINSON 15
The government’s arguments that section 9A.36.021(1)
lists alternative elements of separate crimes are
unpersuasive. First, the government argues that State v.
Fuller, 367 P.3d 1057 (Wash. 2016) (en banc), supports its
interpretation of the statute. In that case, the Washington
Supreme Court stated that:
[W]hen the State charges alternative means
of committing an offense in separate counts
and the jury acquits on one count but
deadlocks on the other, the State may retry
the defendant on the count on which the jury
was declared hung. Retrial on that count does
not violate the prohibition against double
jeopardy because jeopardy never terminated
as to that count or as to the overall offense.
Id. at 1063. The government contends that State v. Fuller
establishes that the listed alternatives in section
9A.36.021(1) are not “alternative means” as that term is used
in Taylor, Descamps, and Mathis because if they were,
double jeopardy would have barred retrial.
Fuller’s analysis, however, demonstrates that the listed
alternatives are in fact “alternative means.” The Fuller court
first stated that section 9A.36.021 is a “single criminal
offense” with “seven separate subsections defining how the
offense may be committed.” 367 P.3d at 1059 (footnote
omitted). It then noted that:
[W]hether a case involves separate counts
based on alternative means or a single count
with two alternative means does not change
the double jeopardy analysis [because] . . . a
defendant charged and tried under multiple
statutory alternatives experiences the same
16 UNITED STATES V. ROBINSON
jeopardy as one charged and tried on a single
theory. The defendant is in jeopardy of a
single conviction and subject to a single
punishment, whether the state charges a
single alternative or several.
Id. at 1059–60 (citations, alterations, and internal quotation
marks omitted). Because the court concluded that charging a
defendant with violations of multiple subsections of
section 9A.36.021(1) puts the defendant “in jeopardy of a
single conviction and subject to a single punishment,” Fuller
demonstrates that section 9A.36.021(1) lists alternative
means of proving a single crime, not alternative elements of
separate crimes. See id.
Second, the government cites State v. Kitchen, 756 P.2d
105 (Wash. 1988) (en banc), abrogated on other grounds as
recognized in In re Stockwell, 316 P.3d 1007 (Wash. 2014)
(en banc), for the proposition that “[i]n an alternative means
case, where a single offense may be committed in more than
one way, there must be jury unanimity as to guilt for the
single crime charged.” Id. at 109. But the very next sentence
of Kitchen shows that the case in fact stands for the
proposition that jury unanimity is not required as to each
particular means in an alternative-means case: “Unanimity
is not required, however, as to the means by which the crime
was committed so long as substantial evidence supports each
alternative means.” Id. The government argues that the fact
that “substantial evidence” is required for each alternative
“is more proof these alternatives are functionally separate
crimes.” But the Supreme Court has never held that a
requirement that “substantial evidence” support each relied-
upon statutory alternative demonstrates that the statutory
alternatives are separate crimes. Instead, what matters is
UNITED STATES V. ROBINSON 17
whether a jury must agree unanimously on a particular listed
alternative.
In sum, we conclude that section 9A.36.021 defines a
single crime—second-degree assault—and provides seven
different “means” by which a person can commit that crime.
The statute is therefore indivisible. Moreover, because
section 9A.36.021 covers more conduct than the generic
federal definition of a crime of violence under Guidelines
section 2K2.1, it does not define a crime that categorically
satisfies that definition. Thus, the district court erred in
concluding that Robinson’s prior second-degree assault
conviction was for a crime of violence.
Conclusion
For the foregoing reasons, we VACATE Robinson’s
sentence and REMAND for resentencing.