FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-35515
Plaintiff-Appellee,
D.C. Nos.
v. 3:16-cv-01268-JO
3:94-cr-00380-JO-1
ALAN LAWRENCE SHELBY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted June 5, 2019
Portland, Oregon
Filed September 19, 2019
Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Jennifer G. Zipps, * District Judge.
Opinion by Judge Hurwitz
*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, sitting by designation.
2 UNITED STATES V. SHELBY
SUMMARY **
28 U.S.C. § 2255
The panel reversed the district court’s denial of a
28 U.S.C. § 2255 motion, and remanded, in a case in which
the district court determined that the defendant’s prior
conviction for armed robbery under Oregon Revised Statutes
§ 164.415 qualified as a “violent felony” under the Armed
Career Criminal Act (ACCA).
The panel held that United States v. Strickland, 860 F.3d
1224 (9th Cir. 2017), which held that Oregon third-degree
robbery is not a violent felony under the ACCA force clause
because it “doesn’t require physically violent force,” is not
clearly irreconcilable with Stokeling v. United States, 139
S. Ct. 544 (2019), which addressed a Florida robbery statute
that requires resistance by the victim that is overcome by the
physical force of the offender.
The panel agreed with the district court that first-degree
robbery in violation of Or. Rev. Stat. § 164.415(1)(a), which
occurs if the perpetrator is merely “armed with a deadly
weapon,” is not a categorically violent offense. But the
panel disagreed with the district court’s conclusion, under
the modified categorical approach, that the defendant’s prior
convictions were under Or. Rev. Stat. § 164.415(1)(b),
which requires the use or attempted use of a dangerous
weapon, and therefore were violent ACCA offenses. The
panel wrote that the Shepard documents do not establish that
**
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. SHELBY 3
the defendant was charged or convicted under
§ 164.415(1)(b), and therefore even assuming § 164.415(1)
is divisible, the district court erred in finding that the
defendant had been convicted of armed robbery under
subsection (b).
COUNSEL
Elizabeth G. Daily (argued), Assistant Federal Public
Defender; Stephen R. Sady, Chief Deputy Federal Public
Defender; Office of the Federal Public Defender, Portland,
Oregon; for Defendant-Appellant.
Suzanne B. Miles (argued) and Benjamin Tolkoff, Assistant
United States Attorneys; Kelly A. Zusman, Appellate Chief;
Billy J. Williams United States Attorney; United States
Attorney’s Office, Portland, Oregon; for Plaintiff-Appellee.
OPINION
HURWITZ, Circuit Judge:
The issue for decision is whether first-degree armed
robbery in violation of Oregon Revised Statutes § 164.415 is
a “violent” felony under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). As a matter of common
understanding, appellant Alan Shelby, who has been
convicted of armed robbery three times in Oregon state
court, is the paradigm of an armed career criminal. But we
are mandated by the Supreme Court to analyze this case not
through common understanding, but rather by comparing the
elements of the state crime to the requirements of the federal
statute. And, faithfully applying that approach, we conclude
4 UNITED STATES V. SHELBY
that the Oregon convictions before us do not qualify as
violent felonies under the ACCA.
I.
Shelby pleaded guilty in district court to one count of
escape in violation of 18 U.S.C. § 751(a), and one count of
unlawfully possessing a firearm after a felony conviction in
violation 18 U.S.C. § 922(g). The ACCA mandates a 15-
year minimum sentence for a person convicted under
§ 922(g) with “three previous convictions . . . for a violent
felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). A violent felony is defined under the ACCA
“force clause” as one that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The ACCA
“residual clause” also defines a violent felony as a crime that
“involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). 1
In seeking an ACCA enhancement to Shelby’s § 922(g)
sentence, the government offered proof of: (1) three prior
convictions for Oregon first-degree robbery; (2) one prior
conviction for Oregon second-degree robbery; and (3) one
prior federal conviction for “Conspiracy to Manufacture,
Possess With Intent to Distribute and Distribute
Methamphetamine and Use Of a Firearm During a Drug
Crime.” The sentencing judge imposed the ACCA
enhancement; Shelby received a sentence of 180 months on
the felon in possession count. The sentencing judge did not
1
The ACCA also contains an “enumerated clause,” defining a
violent felony as a crime that “is burglary, arson, or extortion, [or]
involves use of explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). That clause
is not at issue in this case.
UNITED STATES V. SHELBY 5
indicate which clause of the ACCA he relied upon, but
because ACCA requires three prior qualifying convictions,
the sentence necessarily rests on the conclusion that Oregon
first-degree robbery is a violent felony.
In Johnson v. United States, 135 S. Ct. 2551, 2563
(2015), the Supreme Court held the ACCA residual clause
to be unconstitutionally vague, and in Welch v. United
States, 136 S. Ct. 1257, 1268 (2016), it applied the rule in
Johnson retroactively. After Welch was decided, Shelby
timely filed a 28 U.S.C. § 2255 motion, challenging the
ACCA enhancement because the residual clause no longer
applied and asserting that the three first-degree robbery
convictions did not qualify as violent felonies under the
force clause.
The district court denied the motion. It started from the
premise that armed robbery under Or. Rev. Stat.
§ 164.415(1)(a) is not categorically an ACCA violent
felony, because the mere possession of a concealed weapon,
not its use, can establish being “armed” under the state law.
But, the court found the Oregon first-degree robbery statute
divisible, and held that the “indictments show that Shelby
was convicted under subsection (b) of Or. Rev. Stat.
§ 164.415 rather than subsection (a).” Because subsection
(b) proscribes robberies in which the defendant “[u]ses or
attempts to use a dangerous weapon,” the court held that
Shelby’s prior convictions were ACCA violent felonies.
II.
A.
A felony is “violent” under the ACCA force clause if it
“has as an element the use, attempted use, or threatened use
of physical force against the person of another.” 18 U.S.C.
6 UNITED STATES V. SHELBY
§ 924(e)(2)(B)(i). The “physical force” must be “violent
force,” or “force capable of causing physical pain or injury
to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010). The force clause “encompasses robbery
offenses that require the criminal to overcome the victim’s
resistance.” Stokeling v United States, 139 S. Ct. 544, 550
(2019).
Our starting point in determining whether Shelby’s
convictions are violent felonies is the base Oregon robbery
statute, which defines third-degree robbery as follows:
A person commits the crime of robbery in the
third degree if in the course of committing or
attempting to commit theft or unauthorized
use of a vehicle as defined in ORS 164.135
the person uses or threatens the immediate
use of physical force upon another person
with the intent of:
(a) Preventing or overcoming resistance to
the taking of the property or to retention
thereof immediately after the taking; or
(b) Compelling the owner of such property or
another person to deliver the property or
to engage in other conduct which might
aid in the commission of the theft or
unauthorized use of a vehicle.
Or. Rev. Stat. § 164.395(1). First-degree robbery occurs “if
the person violates ORS 164.395 and the person: (a) Is
armed with a deadly weapon; (b) Uses or attempts to use a
dangerous weapon; or (c) Causes or attempts to cause
serious physical injury to any person.” Or. Rev. Stat.
§ 164.415(1).
UNITED STATES V. SHELBY 7
We held in United States v. Strickland that Oregon third-
degree robbery is not a violent felony under the ACCA force
clause because it “doesn’t require physically violent force.”
860 F.3d 1224, 1227 (9th Cir. 2017). The government first
argues that Strickland is no longer good law after Stokeling.
A three-judge panel can only decline to apply prior
Circuit precedent “clearly irreconcilable” with a subsequent
Supreme Court decision. Close v. Sotheby’s, Inc., 894 F.3d
1061, 1072–73 (9th Cir. 2018). We recognized in Ward v.
United States that “[o]ur prior distinction between
‘substantial’ and ‘minimal’ force in the ACCA robbery
context” does not survive Stokeling. No. 17-35563, slip op.
at 9 (9th Cir. Sept. 3, 2019). But, in the same case, we noted
that “Stokeling made clear that force involved in snatchings,
where there is no resistance, is not sufficient to fall under the
ACCA’s force clause.” Id. at 10 n.4. And, we stressed that
[i]n several recent memorandum
dispositions, we have also recognized
instances of force that did not fall within “the
scope of the elements clause as defined in
Stokeling.” United States v. Lawrence,
758 F. App’x 624, 625 (9th Cir. 2019); see
also Torres v. Whitaker, 752 F. App’x 512,
513 & n.1 (9th Cir. 2019). Thus, to whatever
extent the state statutes discussed in Molinar
and other ACCA robbery cases criminalize
force more broadly than in Stokeling, those
cases have not been overruled. See Lawrence,
758 F. App’x at 625 (reaffirming United
States v. Strickland, 860 F.3d 1224 (9th Cir.
2017)).
Id.
8 UNITED STATES V. SHELBY
Applying this analysis, we conclude that Strickland and
Stokeling are not clearly irreconcilable. Stokeling addressed
a Florida statute defining robbery as “the taking of money or
other property . . . from the person or custody of another, . . .
when in the course of the taking there is the use of force,
violence, assault, or putting in fear.” 139 S. Ct. at 549
(alterations in original) (quoting Fla. Stat. § 812.13(1)).
Because “[t]he Florida Supreme Court has made clear that
the statute required ‘resistance by the victim that is
overcome by the physical force of the offender,’” the
Supreme Court held that a Florida robbery conviction
qualified as a violent felony under the ACCA force clause.
Id. at 554–55 (quoting Robinson v. State, 692 So. 2d 883,
886 (Fla. 1997)). But, Stokeling emphasized that the state
statute did not apply to “a defendant who merely snatches
money from the victim’s hand” without grabbing the
victim’s fingers, or one “who steals a gold chain . . . simply
because the victim feels his fingers on the back of her neck.”
Id. at 555 (cleaned up).
In contrast to the Florida crime, Oregon third-degree
robbery does not even require that a victim feel “much of
anything.” Strickland, 860 F.3d at 1227 (quoting State v.
Johnson, 168 P.3d 312, 313 (Or. Ct. App. 2007)). Under
Oregon law, “a perpetrator could ‘prevent’ a victim’s
resistance by acting so swiftly that the victim does not have
time to resist, i.e., by taking the victim’s property so quickly
that resistance is futile.” Johnson, 168 P.3d at 314; see
Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (“[I]t
is clear that a conviction under section 164.395 requires only
minimal physical force.”). We therefore conclude that
Strickland survives Stokeling.
UNITED STATES V. SHELBY 9
B.
The next question is whether Oregon first-degree
robbery is categorically violent under the ACCA force
clause. The district court held that armed robbery in
violation of Or. Rev. Stat. § 164.415(1)(a) is not a
categorically violent offense. We agree. First-degree
robbery occurs under § 164.415(1)(a) if the perpetrator is
merely “armed with a deadly weapon.” “The person
committing the crime need not actually use the deadly
weapon, much less make any representations about it.” State
v. Zimmerman, 12 P.3d 996, 998 (Or. Ct. App. 2000).
“There is a material difference between the presence of a
weapon, which produces a risk of violent force, and the
actual or threatened use of such force. Only the latter falls
within ACCA’s force clause.” United States v. Parnell,
818 F.3d 974, 980 (9th Cir. 2016) (emphasis in original).
The government argues that “no Oregon case has held
that a first-degree robbery conviction could be sustained
under Or. Rev. Stat. § 164.415(1)(a) based solely on a
defendant’s purely covert firearm possession.” But it does
not contest that the Oregon statute expressly covers such
conduct. “[I]f a state statute explicitly defines a crime more
broadly than the generic definition, no legal imagination is
required to hold that a realistic probability exists that the
state will apply its statute to conduct that falls outside the
generic definition of the crime.” United States v. Brown,
879 F.3d 1043, 1050 (9th Cir. 2018) (quoting Chavez-Solis
v. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015)). 2
2
Our conclusion is consistent with this Court’s interpretations of
similar state armed robbery statutes. See United States v. Molinar,
881 F.3d 1064, 1069–70 (9th Cir. 2017) (holding that Arizona’s armed
10 UNITED STATES V. SHELBY
C.
Although correctly concluding that armed robbery under
Or. Rev. Stat. § 164.415(1)(a) did not qualify as an ACCA
violent offense under the force clause, the district court
found that § 164.415 was divisible under the rule of
Descamps v. United States, 570 U.S. 254, 261–64 (2013). It
then concluded that Shelby’s prior convictions were under
Or. Rev. Stat. § 164.415(1)(b), which requires the use or
attempted use of a dangerous weapon, and therefore were
violent ACCA offenses.
If a statute is divisible, the modified categorical approach
allows looking “to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements,
a defendant was convicted of.” Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). But, when the so-called
“Shepard documents,” see Shepard v. United States, 544
U.S. 13, 16 (2005), do not make clear what section of a
divisible statute the defendant was convicted under, a prior
conviction cannot constitute a disqualifying offense under
the modified categorical approach. See Marinelarena v.
Barr, No. 14-72003, 2019 WL 3227458, at *6 (9th Cir. July
robbery statute does not qualify as a “crime of violence” in part because
it “does not require that the robber actually use or even threaten to use a
weapon”); United States v. Geozos, 870 F.3d 890, 899–901 (9th Cir.
2017) (holding that Florida armed robbery, which requires a defendant
to “carr[y] a firearm or other deadly weapon” in “the course of
committing the robbery,” did not qualify as a violent felony in part
because “it would have been possible for someone to be convicted of
violating the statute for carrying a firearm during a robbery even if that
firearm was not displayed and the victim of the robbery was unaware of
its presence”).
UNITED STATES V. SHELBY 11
18, 2019) (“[A]mbiguity in the record as to a petitioner’s
offense of conviction means that the petitioner has not been
convicted of an offense disqualifying her from relief.”); see
also United States v. Arriaga-Pinon, 852 F.3d 1195, 1199–
1200 (9th Cir. 2017).
The indictments for Shelby’s Oregon first-degree
robbery convictions do not specify whether he was accused
of violating subsection (a) or subsection (b) of § 164.415(1),
or both. Each alleges that Shelby was “armed with . . . a
deadly weapon,” but none alleges that he used the weapon
during the charged robbery. 3 And, the judgments of
3
The indictment in Lane County Case No. 10-83-06212 alleged:
The defendant on or about the 6th day of July, 1982,
in the county aforesaid . . . did unlawfully and
knowingly use and threaten the immediate use of
physical force upon [the victim], and was armed with
a handgun, a deadly weapon, while in the course of
committing and attempting to commit theft of United
States money and other property with the intent of
preventing or overcoming resistance to the defendants
taking and retention immediately after the taking of
the property[.]
The indictment in Lane County Case No. 10-83-07615 alleged:
The defendant on or about the 30th day of May, 1982,
in the county aforesaid . . . did unlawfully and
knowingly use and threaten the immediate use of
physical force upon [the victim], and was armed with
a pistol, a deadly weapon, while in the course of
committing and attempting to commit theft of money
and other property, with the intent of preventing and
overcoming resistance to the defendant’s taking and
retention immediately after the taking of the
property[.]
12 UNITED STATES V. SHELBY
conviction simply state that Shelby pleaded guilty to the
first-degree robbery offense charged, without identifying a
subsection of the Oregon statute. The Shepard documents
therefore simply do not establish that Shelby was charged or
convicted under § 164.415(1)(b). And, even if the Shepard
documents could be read as alleging crimes under both
subsections (a) and (b), the elements of the offense of
conviction remain unclear when the defendant is convicted
under a conjunctively phrased charging document. United
States v. Lee, 821 F.3d 1124, 1129 (9th Cir. 2016).
Therefore, even assuming that § 164.415(1) is divisible, the
district court erred in finding that Shelby had been convicted
of armed robbery under subsection (b).
III.
For the reasons above, we REVERSE the district court’s
denial of Shelby’s § 2255 motion, and REMAND with
The indictment in Lane County Case No. 10-83-07616 alleged:
The defendant on or about the 24th day of March,
1981, in the county aforesaid . . . did unlawfully and
knowingly use and threaten the immediate use of
physical force upon [the victim], and was armed with
a rifle and a shotgun, deadly weapons, while in the
course of committing and attempting to commit theft
of United States money and other property with the
intent of preventing and overcoming resistance to the
defendants taking and retention immediately after the
taking of the property[.]
UNITED STATES V. SHELBY 13
instructions to grant the § 2255 motion and for resentencing
on an open record. 4
4
The government argues for the first time on appeal that because
Shelby’s Oregon robbery sentences were enhanced for the “use or
threatened use of a firearm” by “an additional mandatory minimum term
of five (5) years pursuant to ORS 161.610,” the judgments of conviction
establish that he was convicted under Or. Rev. Stat. § 164.415(1)(b). We
decline to address this argument in the first instance. See In re Mercury
Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n
issue will generally be deemed waived on appeal if the argument was not
raised sufficiently for the trial court to rule on it.” (internal quotation
marks and citation omitted)). Because we remand for resentencing on
an open record, the government may present this argument to the district
court.