939 F.3d 975
9th Cir.2019Background
- Alan Shelby pleaded guilty in federal court to escape and to being a felon in possession of a firearm; the government sought an ACCA enhancement based on three prior Oregon first-degree robbery convictions.
- ACCA requires three prior convictions for a "violent felony" (force clause) or serious drug offenses; the residual clause was invalidated (Johnson/Welch), so only the force and enumerated clauses remain at issue.
- Oregon robbery law: third-degree robbery (ORS 164.395) requires use or threat of immediate physical force to prevent/overcome resistance; first-degree robbery (ORS 164.415(1)) elevates third-degree if the defendant (a) is armed with a deadly weapon, (b) uses/attempts to use a dangerous weapon, or (c) causes/attempts serious physical injury.
- Ninth Circuit precedent (United States v. Strickland) held Oregon third-degree robbery not a categorical ACCA violent felony because it permits only minimal/rapid force that may not overcome resistance.
- The district court accepted that subsection (a) (mere possession of a weapon) is not a force-clause offense but held the statute divisible and concluded Shelby’s convictions were under subsection (b) (use/attempted use), qualifying for ACCA; the Ninth Circuit reversed, finding the Shepard record ambiguous and Oregon first-degree robbery not categorically violent under the force clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS §164.415 (first-degree robbery) is categorically a violent felony under ACCA force clause | Shelby: No; statute permits concealed possession and minimal force, so it lacks an element of violent force | Gov: Yes; Oregon convictions reflect use/threat of force and Stokeling supports broader robbery coverage | Not categorically violent under the force clause |
| Whether United States v. Strickland remains good law after Stokeling | Shelby: Strickland remains; Oregon law requires only minimal force | Gov: Stokland is undermined by Stokeling | Strickland survives; Stokeling not clearly irreconcilable |
| Whether §164.415 is divisible and whether Shepard documents show Shelby convicted under subsection (b) (use/attempted use) | Shelby: Indictments and judgments do not specify subsection; records ambiguous | Gov: Statute divisible and records (or sentencing enhancements) show use/threat of firearm | Even if divisible, Shepard documents here are ambiguous; district court erred in concluding subsection (b) |
| Whether district court erred in denying §2255 and imposing ACCA enhancement | Shelby: §2255 valid because prior robberies do not qualify as violent felonies under force clause after residual clause invalidation | Gov: Convictions qualify; alternative record-based arguments may establish qualifying offenses | Court reversed denial of §2255 and remanded for resentencing on an open record |
Key Cases Cited
- Stokeling v. United States, 139 S. Ct. 544 (2019) (robbery that requires overcoming victim resistance can qualify under ACCA force clause)
- Johnson v. United States, 559 U.S. 133 (2010) (force must be violent force capable of causing pain or injury)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson retroactive on collateral review)
- Descamps v. United States, 570 U.S. 254 (2013) (divisible statutes and limits of categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (use of a limited class of Shepard documents for divisible statutes)
- Shepard v. United States, 544 U.S. 13 (2005) (restricts which records courts may consult to identify elements of prior convictions)
- United States v. Strickland, 860 F.3d 1224 (9th Cir. 2017) (Oregon third-degree robbery not a violent felony under ACCA force clause)
- United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (distinguishes mere presence of a weapon from use/threat under the force clause)
- United States v. Molinar, 881 F.3d 1064 (9th Cir. 2017) (Arizona armed robbery statute could criminalize non-displayed firearms and thus not categorically violent)
- United States v. Geozos, 870 F.3d 890 (9th Cir. 2017) (Florida armed robbery could be based on undisclosed firearm carriage and thus may fall outside force clause)
- United States v. Brown, 879 F.3d 1043 (9th Cir. 2018) (realistic probability test identifies when state statutes reach conduct outside generic crime definition)