United States v. Justin Werle, 2016 U.S. App. LEXIS 3996

Defendant Justin Werle pled guilty to possession of a firearm/ammunition and an unregistered firearm after the district court denied his suppression motion; his conviction was affirmed on appeal as to suppression.
The Presentence Report treated Werle as an Armed Career Criminal under the ACCA, relying on multiple Washington felony riot convictions plus harassment to reach three predicate "violent felony" convictions and trigger a 15-year mandatory minimum under 18 U.S.C. § 924(e).
Washington’s felony riot statute (Wash. Rev. Code § 9A.84.010, as in effect when Werle was convicted) criminalized, with three or more actors, knowingly and unlawfully using or threatening to use force, or participating in the use of such force, against any person or property; felony status required the actor be armed with a deadly weapon.
The district court found the statute overinclusive because it covered acts against property as well as persons, but concluded the statute was divisible on that basis and applied the modified categorical approach to the charging documents and plea materials to find Werle’s riot convictions qualified as ACCA predicates.
On appeal the Ninth Circuit considered whether the riot statute qualifies as a "violent felony" under the ACCA’s force clause (use, attempted use, or threatened use of physical force against the person of another) and whether the statute is divisible such that the modified categorical approach could be used.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Washington felony riot is a "violent felony" under the ACCA (force clause)	Government: felony riot is a violent felony because it requires the actor to be armed with a deadly weapon (and is divisible as to person vs property).	Werle: riot is overinclusive and indivisible because Washington law defines "force" broadly (including minimal, nonphysical acts and mere participation or verbal encouragement), so it does not require the "physical force" Johnson requires.	Held: Riot is not a violent felony; the statute is overinclusive as to "force" (broader than ACCA's "physical force") and thus cannot serve as an ACCA predicate.
Whether the modified categorical approach could be used to treat riot convictions as ACCA predicates	Government: statute is divisible (e.g., person vs property) so the court may consult limited documents to identify the offense variant.	Werle: even if divisible as to target (person/property), the statute remains indivisible as to the definition/level of "force," preventing use of the modified categorical approach to establish the required level of physical force.	Held: The divisibility of one element (person vs property) does not permit modified categorical inquiry into other elements; because the statute is overinclusive and indivisible as to "force," the modified categorical approach is inapplicable.

Taylor v. United States, 495 U.S. 575 (categorical approach limited to statutory elements)
Descamps v. United States, 133 S. Ct. 2276 (modified categorical approach applies only to divisible statutes)
Johnson v. United States, 559 U.S. 133 ("physical force" = force capable of causing physical pain or injury)
Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty beyond statutory maximum must be proven to a jury)
Shepard v. United States, 544 U.S. 13 (documents permissible under modified categorical approach)
Mellouli v. Lynch, 135 S. Ct. 1980 (presume conviction rested on least conduct criminalized under an overbroad statute)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (realistic probability standard for statutory overbreadth)

Outcome: The Ninth Circuit vacated Werle’s ACCA-enhanced sentence and remanded for resentencing without applying the ACCA enhancement.